Petition for Writ of Certiorari — National Assn. for the Advancement of Multijurisdictional Practice (No. 05-1418)

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Petitioners’ Interrogatories and Requests for Admission went

unanswered. Attorney General Gonzales refused to appear for

a noticed deposition. The federal defendants refused to

comply with the FRCP 26 mandatory disclosure requirements.

There was no case management conference. There was no in-

person hearing of any kind, in person or by phone.

The trial Court granted the defendants’ Rule 12(b)(6)

motion to dismiss. The trial Court further denied petitioners”

Motion for Preliminary and Permanent Injunction and held

“local” rules do not have to be “homogeneous.” See 2a.

An appeal was timely filed on April 19, 2006 to the >

Third Circuit. Petitioners are by separate Motion requesting

the judges on the Third Circuit to disqualify themselves

under 28 U.S.C. § 455.

Facts

This case is about an unpopular federal claim and this

Supreme Court’s precedent the Court below refused to listen

to or adhere. This case is about an American Bar Association

recommendation that the challenged “local” attorney

admission rules should be eliminated. the Court below

refused to see or acknowledge. This case is about whether

federal district court local rules can lawfully create an

exception to the First Amendment freedoms to free speech.

association, and to petition the Government for redress of

grievances, that Congress is prohibited from abridging.

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In Supreme Court of New Hampshire v. Piper, 470 U.S. 274

(1985), a nonresident attorney challenged the bar admission

rules of the New Hampshire Supreme Court. The New

Hampshire Supreme Court denied the attorney's challenge.

This Court reversed and concluded:

The lawyer's role in the national economy is not the

only reason that the opportunity to practice law

should be considered a "fundamental right." We

believe that the legal profession has a noncommercial

role and duty that reinforce the view that the practice

of law falls within the ambit of the Privileges and

Immunities Clause.[fnl1] Out-of-state lawyers may

and often do — represent persons who raise

unpopular federal claims. In some _— cases,

representation by nonresident counsel may be the

only means available for the vindication of federal

rights. 470 U.S. at 281.

In Supreme Court of Virginia v. Friedman, 487 U.S.

59 (1988), an experienced attorney challenged her exclusion

from the equal opportunity for admission on motion by rules

of the Virginia Supreme Court. The Virginia Supreme Court

rejected her challenge. This Court reversed, and held the

State has burdened the right to practice law, a privilege

protected by the Clause, by discriminating among otherwise

equally qualified applicants solely on the basis of citizenship

or residency. Id. at 67. This Court held the norm under the

Privileges and Immunities Clause is comity, and attorneys

who seek bar admission on motion qualify for the norm of

comity. Id. at 64.

In Barnard v. Thorstenn, 489 U.S. 546 (1989). two

attorneys challenged discriminatory Virgin Islands’ bar

admission rules. This Supreme Court invalidated the

challenged rules. This Supreme Court further rejected the

government contentions proffered to justify the

discrimination, i.e.. geographical isolation, Id. at 554. and

insufficient resources to supervise the ethics of a nationwide

bar membership. Id. at 566.

7

Petitioners argued the applicability of the above

Supreme Court attorney bar admission cases to this

proceeding. The decision below fails to cite or distinguish

these cases.

The decision below consistent with this conspiracy of

silence also does not spell out or analyze this Supreme

Court’s most recent decision on the validity of federal district

court “local” general admission rules. That case, Frazier v.

Heebe, Chief Judge of the Eastern District of Louisiana, 482

U.S. 641, 645 (1987), was decided almost 20 years ago,

before Congress substantially rewrote the Rules Enabling Act

in 1988, and before the computer revolution and the internet

democratized information.

In Frazier v. Heebe, this Supreme Court summarized

the question for decision: “The question for decision is

whether a United States District Court may require that

applicants for general admission to its bar either reside or

maintain an office in the State where that court sits.” Id. at

642-43. This is analogous to the question for decision

presented in this case, i.e. “Whether a United States District

Court may require that applicants for general admission to its

bar be licensed in the State where that court sits.” This

Supreme Court answered in the negative. The decision below

answers in the positive. The decision below. in effect,

reverses this Supreme Court without analyzing this Court's

decision.

In Frazier v. theebe, the petitioner attorney challenged

local general bar admission rules of the Eastern District of

Louisiana. Initially, the attorney filed his petition in the Court

of Appeals for a writ, requesting the rules be invalidated. The

Fifth Circuit Court of Appeals remanded the case and held

that it had to be first filed in the District Court to obtain an

appealable judgment. Matter of Frazier, 594 F. Supp. 1173,

1176 (E.D. La 1984). All of the judges of the Eastern District

of Louisiana then recused themselves, and a judge from

another district was assigned the case. Ibid. The District

Court and the Fifth Circuit upheld the challenged attorney

8

admission rule. This Court, however, reversed and held the

District Court was not empowered to adopt Rules requiring

members of the Louisiana Bar who apply for admission to its

bar to live, or maintain an office, in Louisiana. This Court

held the location of a lawyer's office simply has nothing to do

with his or her intellectual ability or experience in litigating

cases in Federal District Court. Frazier v. Heebe, supra, 482

U.S. 641, 650 (1987).

In reaching that decision, filed before Congress

substantially rewrote the Rules Enabling Act in 1988, this

Court exercised its supervisory powers and applied a

heightened scrutiny “irrational and unnecessary” standard of

review, rather than the strict scrutiny applied in Piper.

“Irrational and unnecessary” equals the conjunctive rational

and necessary. This Court entered other legal conclusions to

justify reversal, Id. at 646-49, petitioners warrant are apposite

to this proceeding the Court below concealed. such as: (i)

there is no reason to believe that in-state attorneys are any

more competent than out-of-state attorneys: (ii) there is no

need for a blanket rule that denies all nonresident attorneys

admission to a district court bar: (iii) modern communication

systems make it possible to minimize unavailability; (iv)

there is no link between residency within a state and

proximity to a courthouse, Id. at 650; (v) pro hac vice

admission is not a viable alternative because it does not allow

nonresident attorneys to practice on the same terms as

resident members of the bar, Id. at 650-51; (vi) Such (pro hac

vice) association imposes a financial and administrative

burden on nonresident counsel. Ibid.

This Supreme Court further, in footnote 7. provided

other relevant contextual background and stated: -

Rules that discriminate against nonresident attorneys

are even more difficult to justify in the context of

federal-court practice than they are in the area of

Sstate-court practice. where laws and procedures may

differ substantially from State to State. See Comisky

& Patterson, The Case for _a Federally Created

9

National Bar by Rule or by Legislation, 55 Temp. L.

Q. 945. 960-964 (1982). There is a growing body of

specialized federal law and a more mobile federal bar.

accompanied by an increased demand for specialized

legal services regardless of state boundaries. See

Simonelli, State Regulation of a Federal License to

Practice Law, 56 N.Y. State Bar J. 15 (May 1984).

The Court's supervisory power over federal courts

allows the Court to intervene to protect the integrity

of the federal system, while its authority over state-

court bars is limited to enforcing federal

constitutional requirements. Because of — these

differences, the Court has repeatedly emphasized, for

example, that disqualification from membership from

a state bar does not necessarily lead to disqualification

from a federal bar. 482 U.S. at 647 n. 7.

This case is locally unpopular because United States

judges by definition are honorable. Opposition to their

authority is perceived as a prior dishonorable.

Petitioners include the National Association for the

Advancement of Multijurisdiction Practice, a nonprofit

public benefit corporation. The NAAMJP has as its political

purpose to engage in expressive association, and to petition

the government for redress of grievances, on behalf of its

members and itself as an association. See 49a-53a

Declaration of Kenneth Owen, Esq.. an officer and director of

NAAMJP.

Petitioner NAAMJP is injured because it is barred by

the challenged “minefield” of inconsistent local rules from

filing this exact same lawsuit on behalf of its members in the

Central District of California, and the District of Columbia,

and in numerous other courts, because of local attorney

general admission rules that categorically, regardless of

individual merit or federal practice experience, deny general

admission privileges to out-of-state attorneys.

10

Petitioner John F. O’Rourke, Esq. is a Vietnam

Veteran, an award winning engineer, and a federal practice

expert specializing in patent law. See 21a-37a Declaration of

John F. O’Rourke. Petitioner is admitted to practice before

the United States Patent and Trademark Office, and

numerous other state and federal courts. Petitioner’s patent

practice is national and international. Petitioner alleges he has

sustained concrete injuries to his professional practice and

career, as a direct result of the patchwork of local federal

district court admission rules.

Patent law is a federal practice specialty that is not

tested on any State’s bar exam. Nevertheless, petitioner is

categorically ineligible for general admission to the bar of the

federal district courts in California because he is not a

member of the State Bar of California, and categorically

disqualified for pro hac vice admission under the local rules

because he lives and works in California. Petitioner alleges

he is injured in his employment opportunities, in California

and elsewhere, because he is qualified to be an expert witness

on various intellectual property and scientific litigation cases

filed in the federal district courts, but categorically and

arbitrarily denied the right to act as counsel in these same

cases: while attorneys that are not admitted to the patent bar

are categorically eligible to serve as counsel in these

intellectual property and scientific litigation cases in the

federal district courts.

Petitioner Alan Ellis, Esq. is a former editor of the

Villanova Law Review. See 38a-46a Declaration of Alan Ellis.

He has clerked for federal judges. He is a former President of

the National Association of Criminal Defense Lawyers. He

has a national federal criminal practice, and he writes

monthly columns for the American Bar Association on

federal criminal sentencing. Petitioner is the co-author of the

Federal Prison Guidebook, the Federal Sentencing

Guidebook, and the Federal Post Conviction Guidebook.

Petitioner Alan Ellis alleges it would be either

impossible or extraordinarily burdensome to conduct a

1]

national criminal federal practice if the federal law specialist

was required to be admitted in every single state in which

there is a federal district court. Petitioner alleges the

prohibitive costs would far outweigh the benefit because

State law has virtually nothing to do with his federal criminal

practice specialty. Petitioner alleges this increased cost

interferes with the public’s increased demand for specialized

legal services, and puts him at a competitive disadvantage.

Petitioner alleges there is no corresponding benefit by the

challenged local rules because State bar examinations do not

test his specialized area of federal practice, including habeas

and federal sentencing guidelines. Petitioner alleges the local

rules also handicap the Courts because expert federal practice

specialists, because of their experience, can make the Court's

job easier. Petitioner alleges regardless of where he practices

that he is still subject to reciprocal discipline, the State's

Rules of Professional Conduct, and the federal court’s Rules

of Professional Conduct.' Petitioner alleges that if he is

qualified for pro hac vice admission then he is qualified for

general admission.”

' The law is clear that a State has ethical jurisdiction over all of its

attorneys regardless of where they work. See U.S. v. Ferguson. 54 F.3d

825 (D.C. Cir. 1995)(holding New Mexico ethics rule applies to a

licensed New Mexico attorney working as an Assistant U.S. Attorney in

Washington, D.C.)

> See New York County Lawyers’ Association Report Of The Committee

On_The Federal Courts On Pro hac vice Admissions To the Federal

Courts 169 F.R.D. 390, 415 (1997)

Conclusion: Stunning changes in technology and the

increasingly national scope of federal practice have made the

Association Rule an expensive and burdensome anachronism.

Too many litigants and attorneys no longer recall the original

reasons for the rule which now appears to many to be nothing

more than judicially-sanctioned feather-bedding. These

‘territorial restrictions on interdistrict competition among

attorneys’ which unjustifiably increase the cost of legal services

to consumers by compelling unnecessary retention of additional

lawyers must be eliminated. The Association Rule gives rise to

12

—

Petitioner further alleges injury because one out of

eight Americans lives in California. Petitioner further alleges

concrete injury because he has been disqualified from pro

hac vice admission in the California federal district court

because he has a regional office in California.”

Petitioner Donald Harris, Esq. is a Yale graduate and

a resident of Ohio. He has a national federal bankruptcy

practice. Petitioner alleges that he has been injured by his

inability to practice in other Federal Bankruptcy Courts.

Bankruptcy law is also not tested on any State's bar

examination. See 47a-48a Declaration of Donald Harris.

Petitioners, in addition to their “as applied” challenge,

further present a facial challenge. Petitioners maintain they

are entitled to assert the First Amendment rights to free

speech, expressive association. and petition rights of every

American under “he overbreadth doctrine.

Petitioners submitted 25 Exhibits in support of their

Motion for Preliminary and Permanent Injunction and

Declaratory Judgment. See Appendix p. 12a-20a listing and

summarizing the Exhibits filed in the trial Court. This

summary was filed in the trial Court. All 25 exhibits filed in

this matter of public concern in a public forum are

downloadable in full from PACER 24-7. These Exhibits

were submitted as evidence without opposing counsel

objection. The Order below consistent with the code of

silence adopted conceals each and every exhibit.

The Order below conceals the undisputed fact the

American Bar Association in 1995 has officially

recommended that the challenged “local rules,” which restrict

practice privileges to lawyers who are admitted to the state

criticism by the general public about the legal process and

clearly injures the image of both the bench and bar. For too long

the legal community has not heeded the need for change. The

case for eliminating the Association Rule is presently

overwhelming. The time to act is now.

* See 40a © 16. -

13

bar in which the district courts sits — should be eliminated.

The American Bar Association concluded: “Given the global

nature of law practice today, parochial local rules are

inefficient, unduly costly to clients and/or lawyers and anti-

competitive.” App. 65a-68a.

The Order below conceals facts about the American

Bar Association’s MJP Commission’s (2002) findings and

recommendations. This seismic shift in paradigm undermines

all prior attorney admission case law as to what is reasonable

and rational. This MJP Commission was staffed by leading

lawyers from around our nation. Harriet Miers was the Chair

until she stepped down to be President Bush’s White House

counsel. The ABA MJP Commission held nationwide open

hearings and received comments from virtually every arm of

the bar concerning reciprocal admission and discipline,

among other matters.

The ABA MJP Commission, in its report Client

Needs in the 21° Century. and based on a careful and

meticulous study, determined the best method to measure

competence is actual experience practicing law. See

www.abanct.org/cpr/mjp Report 201G “RESOLVED, that

the American Bar Association adopts the proposed Mode/

Rule on Admission by Motion, dated August 2002.” See App.

55a-66a.

The State Conference of Chief Justices has endorsed

this ABA MJP Commission Report. See App. 54a, The ABA

MJP web site indicates that 35 states have adopted admission

on motion. The United States Judicial Conference

corroborates the ABA’s conclusion —and affirms that

experience is the best measure of competence."

* “No one has yet devised an examination which will test one’s ability to

be a courtroom advocate.” Report and Tentative Recommendations of the

Committee to Practice in the Federal Courts in the Judicial Conference of

the United States. 79 F.R.D. 187, 196. “Lawyers with previous trial

experience are much more likely to turn in very good performances, and

it permits the inference that experience improves the quality of trial

performance.” Id. at 196. There is a correlation between the quality of

igo

The American Bar Association recommended

reciprocal admission without taking another bar examination

in this 21“ Century for several obvious reasons.

Susan M. Case, Ph.D. is the Director of Testing for

the National Conference of Bar Examiners. Dr. Case writes,

“Testing for licensure is intended to provide evidence that an

individual possess sufficient knowledge and skills necessary

for entry level professional practice.” See Susan M. Case, p.

27 The Bar Examiner (November 2005).

The ABA concluded, what could be a_ better

“objective” evidence of “entry level competence” then

tangible experience as a practicing attorney? Lawyers and

judges like fine wine get better with age. One cannot become

an expert without experience.

Additionally, if a layman is presumed to know the law,

or is able to look it up on the internet, it is not rational to

presume an experienced federal practice expert in the 21“

Century cannot. If a layman is presumed to be qualified to

represent himself or choose his own counsel, it is not rational

to presume an experienced attorney is not qualified. If all

men are created equal, it is not rational to categorically

presume the attorneys of any state are created unequal. or

will act unethically.

Equally important, these American Bar Association

conclusions have been affirmed by this Court. The norm

under the Privileges and Immunities Clause is comity, and

American attorneys as citizens qualify for the norm of

reciprocal admission on motion. Supreme Court of Virginia

v. Friedman, supra, 487 U.S. at 67. See Frazier _v. Heebe,

supra, 482 U.S. 641, 650 (1987)(held the location of a

lawyer's office simply has nothing to do with his or her

trial performance and the prior experience of the attorneys evaluated. 83

F.R.D. at 222.

15

intellectual ability or experience in litigating cases in Federal

District Court.)

The Order below further conceals the facts that “A

National Action Plan on Lawyer Conduct = and

Professionalism” (Adopted by the Conference of Chief

Justices January 21, 1999), declares “National Legal practice

in multiple jurisdictions increasingly is the rule rather than

‘the exception, particularly given improvements — in

communication and transportation technology. The appellate

courts of highest jurisdiction should not only provide

leadership and coordination of professionalism and _ legal

ethics programs within their own states, but also should

encourage interstate cooperation.” See 17a.

The Order below conceals the fact “local” federal

district court rules governing bar admission are according to

U.S. Judicial Conference study a “minefield of

inconsistency.” Marie Leary of the Federal Judicial Center

prepared an extensive creport entitled “Eligibility

Requirements for, and Restrictions on. Practice before the

Federal District Court,” November 7. 1995, (“Leary Report”)

Working Papers of the Committee on Rules and of Practice

and Procedure: Special Studies of Federal Rules Governing

Attorney Conduct 125-182 (Administrative Office of the

United States Courts 1997). This report is quoted and

referenced in Moore's Federal Practice, infra.

Moore's Federal Practice 3" Ed., Judith A.

MecMorrow and Daniel R. Coquillette, “lhe Federal Law of

Attorney) Conduct.” § 801.20(3) Criteria for General

Admission, p. 801-56 states:

According to the “Leary Report”

This extraordinary diversity of bar requirements was

almost completely random in terms of characteristics

of the district courts, with rural districts and urban

* Moore’s Federal Practice 3 Ed., Judith A. McMorrow and Daniel R.

Coquillette, “The Federal Law of Attorney Conduct.” § 801.20(7) p. 801-

59.

16

districts; districts on tropical islands: western,

southern, northern and eastern districts; and large and

small districts all showing no particular predilection

for any model. The primary justification for divergent

local rules, special needs inherent to a particular

district, appeared to be almost completely lacking.

Indeed, because many of these local rules were

adopted before the 1988 revision to 28 U.S.C. §

2071(b) requiring “appropriate public notice and

comment.” there is little in the record of why

individual courts chose the model they did.

These challenged general admission “local” rules

provide a hodge-podge that is even more burdensome ten

years after the “Leary Report™ because of the ABA MJP

Commissions recommendation for admission on motion for

experienced attorneys that increases the inconsistent

minefield by putting federal First Amendment protected wine

in State segregationist bottles.

The Order below conceals the Exhibit evidence

submitted that there is an enormous unmet need for legal

services because citizens cannot afford to hire lawyers. The

Legal Aid Services in a national study titled “Documenting

the Justice Gap in America," reports that legal aid cannot

meet the needs of 80% of the people that it serves. The

Presiding Judge of the Los Angeles Superior Court stated that

of the 2.7 million cases heard last year in the Los Angeles

Superior Court system, 2 million featured at least one party

acting as his or her own counsel. See App. 13a. Fewer and

fewer people are able to afford legal services because of

reported partners profits of over a $1.000,000 per year and

first year associate salaries in excess of $135,000. See App.

13a-14a.

The Order below conceals the indisputable fact the

National Conference of Bar Examiners Admission on Motion

Statistics report that 27,255 attorneys were admitted to

another State’s Bar on Motion in between 1999-2004. These

27.255 “mainstream” attorneys admitted on motion to the

17

States were categorically ineligible for general admission

privileges to the bar regardless of individual merit under the

“extremist” “local” rules of the respondent United States

District Courts for the Districts of New Jersey and California.

See App. 18a. The States of California and New Jersey are in

the minority of States that have rejected the American Bar

Association’s recommendation for admission on motion.

These States in calibrating the scales of justice are more

concerned with protecting their own lawyer’s monopoly than

the public.

The Court below, by concealing the 25 Exhibits

submitted without objection, and this Court’s precedent on

attorney admission cases, did not carry out his judicial duty

in this First Amendment case to engage in a searching,

independent factual review of the full record to ensure "that

the judgment does not constitute a forbidden intrusion on the

field of free expression." Bose Corp. v. Consumers Union of

U.S., Inc., 466 U.S. 485, 499 (1984) (citing New York Times

Co. v. Sullivan, 376 U.S. 254, 284-286 (1964)). There is no

proof in the record below the Court engaged in any review.

The Order below also presents false information as if

it were true by citing case law as authority for propositions

not decided in the case cited. None of the lower court cases

cited by the trial Court decided the legal questions presented

in this case as to the validity of the challenged local rules

under: (i) 28 U.SC. 332(d)(4) and 28 U.S.C. § 2072(b) as

amended in 1988:° (ii) The First Amendment overbreadth

* Petitioners’ counsel was the plaintiff in Giannini vy. Real, 911 F.2d 354

(9 Cir 1990) cert. denied 498 U.S. 1012, (1991). Counsel did not meet

his burden of persuasion in that case that raised a local rule challenge.

The facts developed and the legal arguments have changed dramatically

since that decision over 16 years ago. This Court's decision in Saenz v.

Roe, 526 U.S. 489, S00 (1999) extending the reach of the Privileges and

Immunities Clause undermines the core of the Ninth Circuit decision.

More particularly, as to the local rule challenge, that decision

was facially flawed on the day it was decided. It was decided on May 8,

1990, yet it cites the outdated law, as it existed prior to the 1988

18

doctrine, | viewpoint — discrimination, and content

discrimination; and (iii) the Supremacy Clause. One can

carefully search every published decision cited by the trial

Court and not find any decision wherein any of the legal

arguments submitted here were presented or decided by any

other court.

REASONS FOR GRANTING THE PETITION

1. The Court Should Grant This Writ Under Either Rule

11 or Rule 20 Because No Man Can Be a Judge In His

Own Case, and This Court Has a_ Supervisory

Responsibility Over the Challenged Local Rules

This Court is the ultimate supervisor of the local rules.

This supervisory duty should not be delegated to those

charged with breach of supervisory duty. This would be

equivalent to letting a party be a judge and a judge be a party.

Initially, this case raises a pure question of law.

Petitioners assert their substantive and Fifth Amendment

right to a fair and impartial federal judge is institutionally

compromised anytime a federal judge gives enhanced full

faith and credit to one State’s bar admission polices and

judicial records, and zero credit to the bar admission policies

amendments to 28 U.S.C. § 2071-72. See 911 F.2d at 360 where the

Ninth Circuit, analyzes the issue under the Rules of the Supreme Court.

Compare that to 28 U.S.C.A. § 2071 and the immediately following

Commentary on 1988 Revision by the reporter David D. Siegel, p. 521:

.. .in the 1988 amendment and its reference to the Supreme Court in

the second sentence was struck out and a reference to § 2072

substituted. The change . . .adopted with the district courts primarily

in mind, requires rules promulgated on the authority of § 2071 to

conform to the requirements of § 2072 instead of merely to rules

promulgated by the Supreme Court.

19

and judicial records of 49 other states. Petitioners assert this

is an unconstitutional condition.

Additionally, the Fifth Amendment is a substantive

right protected by 28 U.S.C. § 2072(b)(Such rules shall not

abridge, enlarge or modify any substantive right). There are

two components of due process, a substantive right to due

process (similar to equal protection), and a procedural due

process right to a fair and impartial judge. Both of these

substantive and procedural rights are violated in this case.

Due process counsels that no man shall be a judge in

his own case. “(N)o man ought certainly to be a judge in his

own Cause, Or in any cause, in respect to which he has the

least interest or bias. This principle has no inconsiderable

weight in designating the federal courts as the proper

tribunals for the determination of controversies between

different states and their citizens.” See Hamilton, Federalist

No. 80. p. 414 (Gideon Edition).

In this case, there is a procedural due process

violation because the petitioners’ right to a disinterested and

neutral judge has been and is presently being compromised.

The District Court below held his own Eastern District of

Pennsylvania's local attorney admission rules were lawful.

The District Judge was the judge in his own case. This

procedural due process violation will not be cured on appeal

because these judges will also be deciding their own case.

There are eleven active judges on the Third Circuit.

Five of them are named defendants in this case because of

their joint role as members of the Judicial Conference and

judges on the Third Circuit Court of Appeals. A judge shall

disqualify himself where he has a personal bias or prejudice

concerning a party, or personal knowledge of disputed

evidentiary facts concerning the proceeding. 28 U.S.C. §

455(b)(1). The respondent Third Circuit judges by not

abrogating the challenged local rules, with notice of

petitioners’ claims, have expressed a negative opinion

concerning the merits of these claims. The remaining judges

on the Third Circuit are not disinterested. They are biased

20

and prejudiced because they have close friends that are

parties, that they share confidential communications and

advice on an every day basis. This disqualification for bias

and prejudice under 28 U.S.C. § 455(b)(1) and (3) cannot be

waived under 28 U.S.C. § 455(e).

In contrast, the petitioners below were not even

permitted in the courtroom, in a case where they were

petitioning for the right to appear in the courtroom.

This is also not a case where judges from other Courts

of Appeals can be assigned to hear this case because judges

in other circuits are named as defendants, and it is alleged

they too have violated the standards set forth in 28 U.S.C. §

2072(b).

This Article [If Court conflict of interest is irreparable

because the Executive Branch respondent Attorney Gencral

and Department of Justice also have a conflict of interest.

They have on the one hand, a duty to defend government

officials charged with breach of duty, and on the other hand,

a duty to impartially enforce the law. These indivisible duties

are inextricably intertwined beyond separation in this case.’

This separation of powers violation can only be remedied in

this Court.

Thus, petitioners’ substantive and procedural right to

due process and a disinterested fact-finder has been

For example, the Department of Justice refused to provide the initial

mandatory disclosures or provide any discovery. Petitioners in discovery

sought to elicit relevant testimony under oath trom the Honorable Alberto

R. Gonzales relevant to the issues in this case, such as: (i) Are attorneys

trom Texas not competent to practice federal law outside of the State in

which they are licensed? (ii) Are former federal law clerks and

Department of Justice lawyers not competent to practice tederal law after

leaving federal employment?; (iii) Should American lawyers and citizens

have unequal constitutional rights in petitioning the federal district court?:

(iv) Did the American Bar Association MJP Commission gct it wrong?:

(v) Should this MJP Commission Report be ignored by the federal

judiciary?

2|

—

irreparably abridged and modified. Petitioners concurrently

with filing this Writ Petition are by formal motion requesting

the judges on the Third Circuit to disqualify themselves. Out-

of-state attorneys do not present a clear and present danger

that would warrant a prior restraint on their First and Fifth

Amendment substantive rights. "The loss of First

Amendment freedoms, for even minimal periods of time.

unquestionably constitutes irreparable injury." Elrod v. Burns,

427 U.S. 347, 373 (1976).

There is no decision this Court could enter that would

be more welcome by the legal profession and the people then

the removal of this local rule pox. There is no decision this

Court could enter and be more fitting in this Court’s first

term under Chief Justice Roberts then the abrogation of this

archaic remnant from the separate but equal era.

Petitioners accordingly, and for legal reasons that will

be argued below, request a Writ af Mandamus and

Prohibition — abrogating federal district court “local” rules

that deny general bar admission privileges to attorneys not

licensed in the forum State.

2. The Subject Local Rules Are Inconsistent With

Each Other and Violate 28 U.S.C. § 2072(b)

The respondent Third Circuit Judicial Council, as

noted above, has a supervisory responsibility to review all

District Court “local” rules within the circuit to ensure both

their consistency (shall be consistent) under 28 U.S.C. § 332

(d)(4). and in conformity with 28 U.S.C. § 2072(b)(such rules

Shall not abridge, enlarge or modify any substantive right).

The local rules are not consistent as is required by 28

U.S.C. § 332 (d)(4). The only thing consistent is their

inconsistency. This inconsistency on its face violates 28

U.S.C. 2072(b). District of New Jersey Local Rule 101(b)

limits general admission to New Jersey licensed lawyers.

New Jersey has rejected the ABA Model Rule for admission

on motion. An out-of-state attorney is compelled to accept

the markedly inferior pro hac vice admission available, and

has to pay annual bar dues to the State of New Jersey as long

22

as he is appearing in the federal case for this second class

status. Local Rule 101(c). Moreover, her client has to pay

two lawyers in the District of New Jersey to perform services

that could be more efficiently and expeditiously performed

by one federal practice specialist.

In contrast, with the NJ local rule licensing fees

payable to the State of New Jersey Lawyers' Fund for Client

Protection for second class federal privileges — a licensing

tax that is not authorized by Congress — Western District of

Pennsylvania LR 83.2.1 C authorizes general admission to

“Any person who is a member in good standing of the bar of

the Supreme Court of Pennsylvania, or a member in good

standing of the Supreme Court of the United States, or a

member in good standing of any United States district court.

may be admitted to practice before the bar of this court.”

Approximately one third of the federal district courts have

admission rules paralleling the Western District of

Pennsylvania.

In further contrast, the Eastern District of

Pennsylvania limits general admission to Pennsylvania

licensed attorneys. The State of Pennsylvania, however, has”

adopted Pennsylvania Bar Admission Rule 204, an admission

on motion provision for States that provide reciprocity to

Pennsylvania attorneys. Attorneys from 18 states are

categorically denied admission on motion to the

Pennsylvania Supreme Court because these states do not

grant Keystone State lawyers the same reciprocal privilege.

Thus, these lawyers are vicariously disqualified from general

admission on motion in the Eastern District of Pennsylvania,

based on the State of Pennsylvania's “horse-trading™

incorporated by the local rules of the Eastern District of

Pennsylvania.

The right to counsel is further a substantive right. The

local rules are inconsistent with FRAP 46 and Supreme Court

Rule 5, and they violate that substantive right because they

enlarge the rights of forum state attorneys to appear as

counsel, and they modify and abridge the rights of non-forum

23

State attorneys to serve as counsel. The sacred rights to

counsel of all America citizens are, therefore, modified by

these balkanized local rules.

Likewise, 5 U.S.C. § 500(b) is an Act of Congress

that provides all licensed American attorneys in good

standing are authorized to appear as counsel before federal

administrative agencies. The challenged local rules are

inconsistent with 5 U.S.C. § 500(b) because an attorney is

qualified by this Act of Congress to serve as counsel for a

party in the federal administrative agencies, and by other

Congressional Acts in the federal appellate courts (FRAP 46),

the U.S. Supreme Court (Rule 5) — but not under the

challenged local rules in the District Courts.

These challenged local rules should be consistent with

FRAP 46 and 5 U.S.C. § 500(b). The mischief from this

minefield of balkanized local rules is not a more perfect

Union but “a house divided against itself.”

3. The Challenged General Admission Local Rules Violate

the First Amendment and 28 U.S.C. § 2072(b)

a. Violation of the Overbreadth Doctrine

Laws that sweep within its ambit protected activities

that constitute an exercise of protected expressive or

associational rights are subject to the overbreadth doctrine.

Thomhill _v. Alabama, 310 U.S. 88 (1940). In First

Amendment overbreadth cases, courts allow litigants to

“challenge a statute by showing that it substantially abridges

the First Amendment rights of other parties not before the

court.” Village of Schaumberg v. Citizens for a Better

Environment, 444 U.S. 620. 634 (1980). This is because of

the “possibility that protected speech or associative activities

may be inhibited by the overly broad reach of the statute.”

Ibid. "(W)hen there is a danger of chilling free speech, . . .

society's interest in having the statute challenged may

outweigh the prudential considerations that normally counsel

against third-party standing.” Sec'y of State v. Joseph H.

Munson Co.. 467 U.S. 947, 956 (1984).

24

The First Amendment rights are not subject to a

majority vote. As stated by Justice Robert Jackson, “The very

purpose of a Bill of Rights was to withdraw certain subjects

from the vicissitudes of political controversy, to place them

beyond the reach of majorities and officials and to establish

them as legal principles to be applied by the courts. One's

right to life, liberty, and property, to free speech, a free press,

freedom of worship and assembly, and other fundamental

rights may not be submitted to vote: they depend on the

outcome of no elections.” Board of Education v. Barnette,

319 U.S 624, 638 (1943).

Local rules, however, by definition are adopted by the

vote of the majority of the judges in a district. The district

judges, whether conscious or unconscious because they

didn’t think of it, voted in their local rules to provide the

forum State with a blank check on who may exercise national

rights secured by the Bill of Rights. This standard-less

delegation of federal duty to the forum state constitutes a

gross miscarriage of federal jurisdiction. See Nguyen _v.

United States 539 U.S. 69 (2003)(held a federal court of

appeals was reversed for merely having an Article IV judge

sitting on a panel. This Supreme Court concluded that only

Article III judges were authorized to decide the case).

The First Amendment attempts to secure “the widest

possible dissemination of information from diverse and

antagonistic sources.” New York Times y. Sullivan, 376 U.S.

254, 266 (1964). The First Amendment reflects “a profound

national commitment to the principle that debate on public

issues should be uninhibited, robust, and wide open, and that

it may well include vehement, caustic. and sometimes

unpleasantly sharp attacks on government and _ public

officials.” Id. at 276.

The challenged local rules are an enormous overbroad

prior restraint on freedoms that are at the core of “a profound

national commitment to debate on public issues that should

be uninhibited. robust. and wide open.” [bid. Petitioners and

other American citizens’ First Amendment freedoms to

25

advocate, assembly, and petition are being suppressed across

our Union and in many cases suffocated by this prior restraint.

If Thomas Jefferson, Alexander Hamilton, and many of our

Founding Fathers were alive today, they would be

categorically disqualified from general bar admission by the

local rules challenged in this case.

These challenged rules are markedly over-inclusive.

They enlarge local attorneys’ substantive rights. Novice

forum state attorneys. who have never once filed a pleading

in the federal court, are routinely and categorically granted

general bar admission privileges.

Petitioner federal practice _— specialists are

categorically excluded. Likewise, an out-of-state citizen

hauled into federal court is presumed to know the law and is

authorized to represent himself, but his out-of-state attorney

is presumed ignorant of the law and disqualified. It turns

logic and common sense upside down to presume a layman

knows the law, and experienced federal practice experts from

outside the forum state do not. The challenged general

admission local rules are without question facially overbroad.

When a court decides to impose a speech-restrictive

injunction, the conclusions it reaches must be "supported by

findings that adequately disclose the[ir] evidentiary basis. . ..

that carefully identify the impact of [the defendants']

unlawful conduct, and that recognize the importance of

avoiding the imposition of punishment for constitutionally

protected activity.” NAACP v. Claiborne Hardware Co., 458

U.S. 886, 933-34 (1982). There is neither an evidentiary basis

nor a judicial finding of unlawful conduct, as the “Leary

Report” verifies, against non-forum state attorneys that would

serve to justify the suppression of their First Amendment

liberties via the “local” rules prior restraint.

Moreover. the respondents cannot justify — this

significant federal restraint and discrimination in a designated

public forum. They do not have a compelling need because

federal law and procedure are uniform. The challenged local

rules are not narrowly tailored because the U.S. Supreme

26

Court, U.S. Courts of Appeals, and approximately 1/3 of the

U.S. District Courts do not censor out-of-state attorneys or

put up fences around their courtrooms. Monopoly protection

is not a legitimate government interest.* Moreover, reciprocal

admission on motion is the norm in 35 states. Reciprocal

discipline is the norm in both the State and federal courts.

Petitioners maintain the District Courts can protect

their interests in the administration of justice process through

“less restrictive means” than categorical exclusion of citizen-

attorneys licensed in other states. The present status quo and

enforcement of the challenged local rules is a self-evident

violation of the overbreadth doctrine.

b. The Challenged General Admission Local Rules

Constitute Facial Viewpoint Discrimination

These challenged “local attorney” only admission

rules are quintessential viewpoint discrimination. Only “local

attorneys” are permitted to freely speak, freely represent their

client and engage in expressive association, or freely petition

for redress of grievances in a designated national public

forum on matters of public concern.

Above all else, the First Amendment means that

government has no power to restrict expression because of its

message, its ideas. its subject matter. or it’s content. Police

Department of Chicago v. Mosley, 408 U.S. 92, 95 (1972).

* See FTC v. Superior Court Trial Lawyers Assn. 493 U.S. 411 (1989)

“(U)ltimately competition will produce not only lower prices,

but also better goods and services.” National Society of

Professional Engineers v. United States, 435 S. 679, 695 (1978).

This judgment ‘recognizes that all elements of a bargain

quality, service, safety, and durability ——- and not just the

immediate cost, are favorably affected by the free opportunity to

select among alternative offers.” Trial Lawyers. supra, 493 U.S.

at 423

“That is equally so when the quality of legal advocacy rather.

than engineering design, is at issue.” Id. at 424.

27

A regulation that denies one group of citizens the right to

address a selected audience on controversial issues of public

policy is plainly viewpoint discrimination. Consolidated

Edison Co. v. Public Serv. Comn’n, 447 U.S. 530, 546

(1980).

Viewpoint discrimination is a particularly egregious

form of content discrimination. It is presumptively

unconstitutional. Our government is prohibited from favoring

One viewpoint over another. See Rosenberger v. Rector And

Visitors of Univ. of VA, 515 U.S. 819 (1995) "To permit one

side of a debatable public question to have a monopoly in

expressing its views . . . is the antithesis of constitutional

guarantees." Madison Joint School Dist. No. 8 v. Wisconsin

Employment Relations Comm'n, 429 U.S. 167, 175-176

(1976). “A law or policy permitting communication in a

certain manner for some but not for others raises the specter

of content and viewpoint censorship. This danger is at its

zenith when the determination of who may speak and who

may not is left to the unbridled discretion of a government

official.” Lakewood v. Plain Dealer Publishing Co, 486 U.S.

750, 763 (1988).” :

” Scientific tests conducted by Dr. Gary Klein demonstrate licensing

officials are the least qualified to determine competence. See 72a.74a.

Gary Klein has spent his career studying how people make decisions for

the United States Military and other institutions. In Klein, Sources of

Power (The MIT Press 1999) Chapter 10 The Power to See the Invisible,

Dr. Klein explains “There are many things experts can see that are

invisible to everyone else: (i) Patterns that novices do not notice: (ii)

Anomalies events that did not happen and other violations of

expectancies: (ii!) The big picture (situation awareness); (iv) The way

things work; (v) Opportunities and improvisations; (vi) Events that either

already happened (the past) or are going to happen (the future); (vii)

Differences that are too small for novices to detect; (viii) Their own

limitations.” Id. at 148-49. Each of these is virtually invisible to novices.

Dr. Klein sees a relationship between expertise and age, and “the

accumulation of experience does not weigh people down; it lightens them

up.” Id. at 147. Dr. Klein’s test results further show that experts are

generally not affected by extreme time pressure and their first reaction is

almost always based on pattern recognition and the right one. Id. at 175.

28

c. The Challenged General Admission Local Rules Violate

the First Amendment Right to Free Speech and

Constitute Content Discrimination

A law is presumptively inconsistent with the First

Amendment if it imposes a financial burden on speakers

because of the content or subject matter of their speech.

Simon & Schuster v. Crime Victims Bd., supra, 502 U.S. 105

(1991).

In Republican Party of Minn. v. White, 536 U.S. 765

(2002), the Minnesota Supreme Court adopted a canon of

judicial conduct that prohibited a candidate for judicial office

from announcing his or her views on disputed legal or

political issues. The question presented was whether the First

Amendment permits a State Supreme Court to prohibit

candidates for judicial office in the State from announcing

their views on disputed legal and political issues. This Court

invalidated the judicial canon. This Supreme Court held the

“announce clause” burdened speech based on its “content”

and it burdened “a category of speech” that is at the core of

the First Amendment.

This Court’s First Amendment and Privileges and

Immunities Clause case law makes clear that if judges

seeking election have First Amendment rights, experienced

attorneys seeking another federal district court admission

have First Amendment rights. The defendants’ local rules

that require the petitioner out-of-state licensed attorneys in

In other words, where a novice is paralyzed by uncertainty and the need

for detailed analysis, an expert knows exactly what to do without even

consciously thinking about it. These substantive differences between

novices and expert underlie the different procedural rules for the

admissibility of testimony in the Federal Rules of Evidence 700 series.

The local rules modify, enlarge, and turn the Constitution upside down

by categorically presuming novice forum state attorneys are experts and

categorically presuming expert attorneys from outside the forum are

novices.

29

good standing. announce once again their views to local State

licensing officials, as a condition predicate to again obtain

federal admission, is content discrimination and it burdens a

category of protected speech. Defendants’ local rules cannot

survive strict scrutiny standard of review held applicable in

Republican Party of Minn. v. White. supra.

These challenged local rules which vicariously adopt

by reference, and authorize every State official in every

village and hamlet, to fix who is authorized to petition for

redress of grievances in the United States District Court,

serve to reinforce the pestilential breath of local party faction.

The result is the cherished First Amendment freedoms of the

American people, which need breathing room to survive in

the 21° Century as well as the 18'" Century, are abridged.

modified, and enlarged.

4. The Challenged General Admission Local Rules Violate

the Supremacy Clause and 28 U.S.C. § 2072(b)

In Sperry v. Florida, 373 U.S. 379 (1963). the

petitioner was not a lawyer, but he had been admitted to the

membership of the Board of Patents. The Florida Bar sued in

the Supreme Court of Florida to enjoin the performance of

these and other specified acts within the State, contending

that they constituted unauthorized practice of law. The

Florida Supreme Court affirmed. This Court reversed finding

a violation of the Supremacy Clause.

Here, the challenged local federal rules. by piggy-

backing state law that has nothing to do with federal law.

including patent law. are directly usurping a field occupied

by Congress. Congress has not imposed any additional

licensing conditions on petitioners under FRAP 46 or

Supreme Court Rule 5. If the State cannot occupy these

federal fields. it follows local district court rules cannot

provide the forum State with a blank check and adopt state

law under the guise of local rule-making powers. See Carey

& McClellan. editors, Uhe Federalist (The Gideon Edition),

Hamilton No. 80, p. 412 ("The peace of the WHOLE ought

not to be left at the disposal ofa PART.”)

30

CONCLUSION

Petitioners in view of the foregoing request a Writ of

Mandamus and Prohibition abrogating federal district court

“local” rules that deny general bar admission privileges to

attorneys not licensed in the forum State. These challenged

local rules should be consistent with FRAP 46 and 5 U.S.C. §

500(b).

Petitioners alternatively request a Writ of Certiorari to

the Third Circuit.

Dated: April 28, 2006 Respectfully submitted,

By: /s/ Joseph Robert Giannini

Joseph Robert Giannini, Esq.

PA SB # 38814

Counsel for Petitioners

925 S. Westgate Ave. #102

Los Angeles, CA 90049

Phone 310 442 9386

Fax 310 826 7989

Email: j.giannini(@verizon.net

la

(any footnotes trail end of each document)

Filed 3/23/06

Civil Action No.

05-ev- 5081

UNITED STATES DISTRICT COURT FOR

FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

NAAMUJP et al.

Ve

George W. Bush, et. al

ORDER

Plaintiffs, the National Association for the

Advancement of Multijurisdictional Practice

("NAAMJP"), a nonprofit organization directed by

Joseph Giannini (plaintiffs' counsel in this case), John

O'Rourke, Alan Ellis, and Donald Harris filed a

declaratory judgment complaint and motion for a

preliminary and permanent injunction on September

23, 2005 alleging that numerous defendants, including

President George W. Bush, Attorney General Alberto

Gonzalez, the Department of Justice, various Judges

from the United District Courts for the District of

New Jersey,’ Central District of California,” the

members of the Ninth Circuit Judicial Council,® the

members of the Third Circuit Judicial Council,’ and

the District of Columbia Judicial Council’ violated 28

U.S.C. §§ 2071, 2072, and 332(4)(4) and numerous

constitutional principles by failing to create

2a

homogeneous local rules for admission to the bars of

those jurisdictions. Plaintiffs filed an amended

complaint on December 13, 2005 asserting class

certification and stipulated to the voluntary dismissal

of President Bush on January 26, 2006.

This is at least the third time that Giannini has

brought such a claim before a district court. After

failing the California Bar Examinations in July 1986

and February 1987, Giannini filed suit against the

California Bar Examiners for denying his admission to

practice in California even though he was licensed in

Pennsylvania and New Jersey. See Giannini v. Comm.

of Bar Examiners, 847 F.2d 1434 (9th Cir.1988). In

that case, Giannini alleged that the California bar

examination discriminated against out of state

attorneys and violated the Privileges and Immunities

Clause of Article IV, the Due Process and Equal

Protection Clauses of the Fourteenth Amendment,

and the Commerce Clause of the United States

Constitution. Id. The District Court dismissed his

complaint and the Court of Appeals for the Ninth

Circuit affirmed. Id.

Giannini then filed suit in the Central District of

California against the California Supreme Court and

the Justices of that Court, the Committee of Bar

Examiners and the Committee's individual members,

and the United States District Courts for the Central,

Southern, and Eastern Districts of California and the

individual judges of those Courts. See Giannini v.

Real, 711 F. Supp. 992 (C.D. Cal. 1989) aff'd 911 F.2d

354 (9th Cir.1990). In that case, Giannini challenged

the constitutionality of local district court rules

requiring attorneys to pass California's state bar

3a

examination before being admitted to practice in the

United States District Courts. for the Central.

Eastern, and Southern Districts of California. Id. The

District Court upheld the local rule as consistent with

the rules, practices, and procedures of the Supreme

Court, and specifically held that the local rule did not

violate equal protection or due process, full faith and

credit, or the right to-travel-and rejected Giannini's

arguments under 28 U.S.C. § 2071. Id. The Court of

Appeals for the Ninth Circuit affirmed the District

Court's dismissal and found that Giannini's challenges

did not pass constitutional muster and that the local

rule did not violate the Privileges and Immunities

Clause of Article IV, the Due Process and Equal

Protection Clauses of the Fourteenth Amendment, or

the Commerce Clause of the United States

Constitution. Id.fn6

Giannini subsequently filed an action in the Northern

District of California against the California Supreme

Court and that Court's Justices challenging the

constitutionality of the California rule that limits pro

hae vice admission to nonresidents licensed in other

states. In dismissing Giannini's complaint, the District

Court held that the rule did not violate the Free Speech

Clause of Association Clause of the First Amendment,

did not deny plaintiffs meaningful access to the Courts,

was supported by a rational basis, and did not violate

the Privilege and Immunities Clauses of Article Iv or

the Fourteenth Amendment or the Commerce Clause.

See Paciulian v. George, 38 F. Supp. 2d 1128 (N.D. Cal.

1999) aff'd 229 F.3d 1226 (9th Cir. 2000). The District

Court further held that the action was filed for an

improper purpose, warranting Rule 11 sanctions, and

enjoined Giannini from filing future suits regarding

da

admission to the bar and regulation of the practice of

law in California without leave of court. Id. In affirming

the District Court, the Ninth Circuit Court of Appeals

further held that plaintiffs did not have a protectable

property interest in gaining pro hac vice status. Id.

Undeterred, Giannini filed another action in the

Northern District of California against the Judges of

the Northern District of California and the members of

the Ninth Circuit Judicial Council contending that the

Criminal Justice Act Plan's requirement that an

applicant for membership on the District Court's

indigent defense panel be a member of the California

bar violated a variety of plaintiff s constitutional rights.

See Russell v. Hug, No. 99-1104, 1999 WL 592195 (N.D.

Cal. Aug. 3, 1999) aff'd 275 F.3d 812 (9th Cir. 2002). In

dismissing Giannini's complaint, the District Court

concluded that the state bar membership requirement

does not arbitrarily discriminate against attorneys who

do not pass the California. bar, does not violate the

principles of right and justice, does not violate Title

VII, does not implicate or violate 28 U.S.C. §§ 2071-72,

does not violate Executive Order 11478, does not

violate the Free Speech or Associate Clauses of the

First Amendment, is rationally related to a legitimate

government interest, and does not violate the Due

Process Clause. Id. In affirming the District Court, the

Ninth Circuit Court of Appeals further held that the

membership requirement is not a "rule" within the

meaning of the statute governing rule-making power of

federal courts, is not inconsistent with certain

requirements under the statute setting forth

requirements for counsel in federal death penalty cases,

was not subject to notice and comment requirements of

the statute governing orders of circuit judicial councils,

da

does not violate Fifth Amendment's Equal Protection

Clause, does not violate either Article IV's or the

Fourteenth Amendment's Privileges and Immunities

Clauses, and does not infringe on plaintiffs First

Amendment rights to speech, association, or petition in

a public forum. Id.

Having failed in the District Courts of California and

the Court of Appeals for the Ninth Circuit, Giannini

attempts to retry the same issues here. His complaint

will be dismissed for substantially the same reasons

stated by those Courts. Plaintiffs' complaint is

dismissed for the following preliminary reasons: (1)

plaintiffs have failed to demonstrate how I have

personal jurisdiction over many of the named

defendants; (2) plaintiffs' pleadings do not comply with

Federal Rule of Civil Procedure 8's "short and plain

statement" requirement; and (3) plaintiffs have not

complied properly with my Order of January 24, 2006

directing plaintiff to "address the questions whether I

have jurisdiction to set aside the Local Rules of other

Districts and why each defendant is a proper defendant

in this case."

Plaintiffs’ claims are also dismissed on the merits.

Count I (Rules Enabling Act) is dismissed because the

challenged local rules do not violate of 28 U.S.C. §§

2071-72 & 332(4)(4) and are not inconsistent with

Federal Rule of Civil Procedure 82, Federal Rule of

Appellate Procedure 46, Supreme Court Rule 5, or 5

U.S.C. § 500(b). See Russell, 1999 WL 592195, at *5

affd 275 F.5d at 817-19; Giannini, 711 F. Supp. at 999

affid 911 F.2d at 360; Matter of Roberts, 682 F.2d

105,109 (38d Cir.1982). Similarly, Count IV (Article VI

Supremacy Clause) is dismissed because’ the

~

6a

challenged local rules are creatures of federal, not

state, law and, thus, cannot conflict with or contradict

federal law.

Counts II, III, VII, VIII, IX, and X (First

Amendment freedoms of speech, association, and right

to petition for redress of grievances) are dismissed

because there is nothing in the challenged local rules

that prevents plaintiffs from exercising their right to

express themselves in any forum, associating together

in any forum, petitioning for redress of perceived

grievances in this suit, or appearing pro se in any

forum. See Frazier v. Heebe, 482 U.S. 641, 645 (1987);

Sup . Ct. of N.H. v. Piper, 470 U.S. 274, 283 n.16

(1985); Leis v. Flynt, 489 U.S. 488, 442 (1979).

Moreover, because there is no general federal

procedure for certifying the fitness of an attorney's

ability to practice lawin the federal courts, it is

rational for a district court to rely upon admission to

the bar of the state in which it sits to determine such

fitness. See Russell, 1999 WL 592195, at *7 aff'd 275

F.3d at 822-23; Paciulian, 38 F. Supp. 2d at 1137 aff'd

229 F.3d at 1230.

Count V (Privileges and Immunities Clause - comity)

is dismissed because the Privileges and Immunities

Clause is merely a limitation on the power of states to

discriminate against nonresidents and does _ not

implicate the ability of a federal court to make rules of

practice and procedure. See Sup. Ct. of Va. v.

Friedman, 487 U.S. 59, 65 (1988); Russell, 275 F.3d at

821; Paciulian, 38 F. Supp. 2d at 1142 aff'd 229 F.3d at

1229; Giannini, 911 F.2d at 357; Hawes v. Club

Ecuestre E] Comandante, 535 F.2d 140,145 (1 st

Cir.1976); Manard, 701 F Supp. at 740-41. The

7a

challenged local rules likewise do not violate the Full

Faith and Credit Clause of Article IV because

admission to one jurisdiction's bar does not confer the

right to practice law in any other jurisdiction. See

Leis, 489 U.S. at 443; Giannini, 711 F. Supp. at 1000

aff'd 911 F.2d at 360; Lark v. West, 182 F. Supp. 794,

796 =(D.D.C.1960). Count VI (Privileges and

Immunities Clause - right to travel) is also dismissed

because the challenged local rules do not discriminate

against nonresidents and this Clause applies only to

state, not federal, restrictions. See Russell, 275 F.3d at

822; Paciulian, 229-F.3d at 1229; Hawkins v. Moss, 503

F.2d 1171,1178-79 (4th Cir.1974); Giannini, 711 F.

Supp. at 1000.

Count XI (Sixth Amendment - right to counsel) is

dismissed because there is no absolute right to counsel

of one's choice. See Davis v. Stamler, 650 F.2d 477,

479-80 (1981) ("The sixth amendment does provide

some protection for a criminal defendant's decision to

select a particular attorney. The defendant must have

a “fair opportunity" to secure counsel of his choice and

"arbitrary dismissal" of the attorney chosen by the

defendant is prohibited. It is clear, however, that the

sixth amendment protection accorded to the

defendant's choice of counsel must be balanced against

the requirements of the fair and proper administration

of justice, including the interests underlying the

ethical standards governing the practice of law.")

(internal citations omitted).

Counts XII and XIII (Fifth Amendment Equal

Protection and Due Process Clauses) are dismissed

because there is no fundamental right to practice law

and the challenged local rules do not discriminate

8a

against a suspect, or even quasi-suspect, class and are

rationally related to a district court's legitimate

interest in determining an applicant's fitness to

practice law before the court. See Heller v. Doe, 509

U.S. 312, 319 (1993); Leis, 439 U.S. at 443; Schware v.

Bd. of Bar Examiners, 353 U.S. 232, 239 (1957);

Russell, 1999 WL 592195, at *7-8 aff'd 275 F.3d at 819-

20; Paciulian, 38 F. Supp. 2d at 1139-41 aff'd 229 F.3d

at 1230; Giannini, 711 F. Supp. at 999-1000 aff'd 911

F.2d at 357-58; Sestric v. Clark, 765 F.2d 655, 664

(7th Cir.1985); Maynard, 701 F. Supp. at 742-43;

Lark, 182 F. Supp. at 796. Moreover, the challenged

local rules cannot be considered to violate the Fifth

Amendment's Takings Clause because admission to

practice law in a particular jurisdiction does not

confer a property right to practice in other

jurisdictions. See Giannini, 911 F.2d at 359; Matter

of Roberts, 682 F.2d at 107.

AND NOW, this 28rd day of March 2006, upon

consideration of plaintiffs’ complaint seeking

declarative and injunctive relief, plaintiffs' motion for

preliminary injunction, plaintiffs' amended complaint

asserting class action status, defendants’ opposition to

plaintiffs’ motion for preliminary and permanent

injunctions and motion to. dismiss, © plaintiffs’

supplemental argument with respect to the Sixth

Amendment right to counsel, plaintiffs' reply, and

plaintiffs' amended reply, and for the reasons set forth

above, it is ORDERED as follows:

l. Plaintiffs’ motion for preliminary = and

permanent injunctions is DENIED;

9a

2. Defendants' motion to dismiss is GRANTED

and plaintiffs’ complaint is DISMISSED with respect

to all claims;

3. Plaintiffs and plaintiffs’ counsel are enjoined

from filing any further papers with respect to the

constitutionality of any jurisdiction's local rules of

admission, practice, or procedure in the Eastern

District of Pennsylvania without prior leave of Court.

Leave of Court shall be forthcoming upon plaintiffs' or

plaintiffs’ counsel's demonstration through a properly

filed petition that the proposed filing: (1) can survive a

challenge under Federal Rule of Civil Procedure 12;

(2) is not barred byprinciples of claim or issue

preclusion; (3) is not repetitive or violative of this

Court's order; and (4) is in compliance with Federal

Rule of Civil Procedure 11;

4, Plaintiffs or plaintiffs' counsel shall attach a

copy of this Order and Injunction to any such =

for leave of Court;

5. The Clerk of Court shall refuse to accept any

submissions for filing from plaintiffs or plaintiffs'

counsel relating to the subject matter of this action

except petitions for leave of Court, unless such

submissions for filing are accompanied by an order of

this Court granting leave. In the event that plaintiffs

or plaintiffs’ counsel succeed in filing papers in

violation of this Order, upon such notice, the Clerk of

Court shall, under authority of this Court's Order,

immediately and summarily strike the pleadings or

filings.

s/ Thomas N. O'Neill, Jr.

10a

THOMAS N. O' NEILL, JR, J.

Footnotes

fn1The Honorable John W. Bissell, Dennis M.

Cavanaugh, Joseph A. Greenway, Jr., Katherine S.

Hayden, Faith S. Hohchberg, Jose L. Linares, William

J. Martini, Joel A. Pisano, and Alfred W. Wolfin.

fn2 The Honorable Consuelo B. Marshall, Percy

Anderson, Terry J. Hatter, Ronald S.W. Lew, Nora M.

Manella, Howard A. Matz, James S. Otero, Dean D.

Pregerson, George P. Schiavelli, Christina A. Snyder,

John F. Walter, and Steven v. Wilson.

fn3The Honorable Mary M. Schroeder, Arthur

Alareon, Alex Kozinski, Kim McLane Wardlaw,

Marsha Berzon, Andrew J. Kleinfield, B. Lynn

Winmill, Stephen N. McNamee, Terry J. Hatter,

Charles R. Breyer, Roger G. Strand.

fn4The Honorable Anthony J. Scirica, Dolores K.

Sloviter, Jane R. Roth, Theodore A. McKee, Marjorie

O. Rendell, James T. Giles, Thomas Vaniske, Sue L.

Robinson, Doretta W. Ambrose, and Garret Brown,

Jr.

fn5 The Honorable Douglas B. Ginsburg, David B.

Sentelle, Karen Lecraft Henderson, A. Raymond

Randolph, Judith W. Rogers, David S. Tatel, Merrick

B. Garland, Thomas F. Hogan, Emmet G. Sullivan,

James Robertson, Richard W. Roberts, Ellen Segal

Huvelle, and Reggie B. Walton.

lla

fn6See also McKenzie v. Rehnquist, 203 F.3d 52 (D.C.

Cir.1999) (unpublished) (affirming dismissal of

Giannini's challenges to the local rules in the

California district courts and holding that Giannini

lacked standing to challenge the local rules in other

states because he failed to allege an actual injury);

Morissette v. Yu, 21 F.3d 1114 (9th Cir.1994)

(unpublished) (affirming dismissal of Giannini's

complaint because his general attacks on the

constitutionality of the form and content of the

California bar examination are res judicata and

upholding the district court's sanctions against

Giannini for bringing a frivolous motion and making

scandalous allegations based upon details from his

dream); Mavnard v. U.S. Dist. Ct. for the C.D. Cal.,

701 F. Supp. 738 (C.D. Cal. 1988) aff'd 951 F.2d 1581

(9th Cir.1990) (unpublished) (dismissing attorney's

suit challenging constitutionality of local rule of

Central District of California limiting admission to its

bar to members of the California state bar because

Article IV's Privileges and Immunities Clause,

Commerce Clause, and the Fifth and Fourteenth

Amendments were inapplicable and the rule was

rationally related to a legitimate governmental

interest).

12a

Civil Action No.

05-ev- 5081 TON

CLASS ACTION

UNITED STATES DISTRICT COURT FOR

FOR THE EASTERN DISTRICT OF

= PENNSYLVANIA

NAAMJP (National Association for the

Advancement of Multijurisdiction Practice), John F.

O’Rourke, Alan Ellis, Donald Harris.

Plaintiffs,

' v.

Alberto R. Gonzales, et. al

PLAINTIFFS’ EXHIBIT LIST

Exhibit A John F. O’ Rourke,

1. Certificate of Good Standing

2. Declaration

3.CV

Exhibit B Amended Allan Ellis

1. Declaration

2. Certificate of Good Standing

3.CV

Exhibit C Donald Harris

1. Certificate of Good Standing

2. Declaration

3.CV

Exhibit D Kenneth Owen

1. Declaration

Exhibit E

1. Conference of Chief Justices Adoption of ABA

MJP Recommendations

l3a

2. ABA MJP Adoption of Model Rule for

Admission on Motion

3. ABA 1995 Adoption of Recommendation 8A

Calling for Elimination of State Bar Membership

Requirements for Practice Before U.S. District Courts

Exhibit F

RAND Corporation Reports—Showing California

Entirely Subjective Bar Exam Given to Experienced

Attorneys is Less Reliable Than Flipping a Coin

Exhibit G Declaration of Marvin Comisky

Exhibit H Declaration of David B. Fawcett

Exhibit I —- Philadelphia County Bar Association Ethics

Opinion 2005-14 (August 2005). This opinion, in sum,

raises the question whether a lawyer licensed in Russia,

who also received an LLM from an approved ABA

accredited law school who passed the bar exam in

another state, and who is admitted to practice before

the Immigration and Naturalization Court, and who is,

however, presently ineligible to sit for the

Pennsylvania bar exam or waive into the Pennsylvania

bar on admission by motion, can ethically open an office

in Pennsylvania for the limited practice before

Immigration and Naturalization Court. The — opinion

holds the lawyer is authorized to open an office in

Pennsylvania under the Model Rules of Professional

Conduct, Rule 5.5 “Multijuridictional Practice of Law”

for practice before Immigration and Naturalization

Court.

Exhibit J -— Proof of Irreparable Injury Caused by

Constitutional Inadequate Access to Court and

Counsel. The Daily Journal on January 13, 2005 reports,

in sum, that presiding judge William MacLaughlin of

Los Angeles Superior Court stated that of the 2.7

million cases heard last year in the Los Angeles

Superior Court system, 2 million featured at least one

14a

party acting as his or her own counsel. Presiding Judge

MacLaughlin said the chief factor likely is economic,

"The cost of legal services has grown and grown, and

it seems that fewer and fewer people are able to afford

legal services." Judge MacLaughlin reports it was

"hugely frustrating" for judges because many pro-per

litigants come without the right forms or with forms

filled out incorrectly.

Exhibit K — Proof of [rreparable Nationwide Injury

Caused by Inadequate Access to Court and Counsel.

The Legal Aid Services in a national study titled

"Documenting the Justice Gap in America," reports that

legal aid cannot meet the needs of 80% of the people

that it serves.

Exhibit L — Proof Lawyers Cannot Justify Monopoly

Licensing Protection, and this Licensing Protection

Results in Inflated Salaries that Injures the Public By

Driving Up the Cost of Legal Services. The Daily

Journal reports, based on public admissions that

starting salaries for first year associates at national law

firms are $125,000 to $135,000, and partner profits are

in excess of $1,000,000 per year.

Exhibit M -Stanford Law Dean Fails California bar

exam for experienced attorneys. Attached Wall Street

Journal article dated December 5, 2005 reporting: (i)

that Stanford Law Dean Kathleen Sullivan was

recently failed on the California bar exam for attorneys;

(ii) Dean Sullivan is the author of a well known case

book on constitutional law; (ili) the California bar exam

pass percentage for experienced attorneys on the test

Kathleen Sullivan allegedly failed was 28%; (v)

Kathleen Sullivan’s partner stated, “If anyone should

have passed it is Ms. Sullivan. The problem is not with

Kathleen Sullivan, it is with the person who drafted the

exam or the person who graded it.”

15a

Exhibit N -Bombay, India Native Who Never Attends

Law School Passes California Bar Exam.

Exhibit O - SCIENTIFIC TESTS DEMONSTRATE

EXPERTS AND NOVICES ARE MORE

QUALIFIED TO JUDGE COMPETENCE THAN

LICENSING OFFICIALS. Attached is Klein, Sources

of Power (The MIT Press 1999) Chapter 10 The Power

to See the Invisible, supra, “Example 10.1 The

Instructors Who Couldn’t Save Their Own Lives.”

Dr. Klein demonstrates controlled tests

established:

(i) nine out of ten experts were able to spot

another experienced expert;

(ii) five out of ten novices who finished an eight

hour course were able to spot an experienced expert;

and

(ili) only three out of ten instructors (licensing

officials) who taught the novices, but who never

actually practiced, were able to spot an experienced

expert.

Exhibit O by analogy explains why a Bombay

India native who never went to law school can be

judged competent on the California bar exam by those

who have never practiced (See Exhibit N), and why the

Dean of Stanford Law School can be judged

incompetent by those who have never practiced. See

F xhibit M.

Exhibit O proof of the blind leading the blind

correlates (almost 100%) with Exhibit D — the Rand

Corporation studies that admit, beyond any doubt, the

eight-question entirely subjective test given to

experienced attorneys is less than 48% reliable.

Exhibit P - CLIENT REPRESENTATION IN THE

21° CENTURY (Report of the American’ Bar

Association Multijurisdiction Practice Commission)

l6a

Exhibit Q- United States Department of Justice Backs

Split of Ninth Circuit; United States House of

Representatives Scolds Ninth Circuit; Size Mattered In

Fiery Partisan Debate About Ninth Circuit.

Exhibit R- Plaintiffs’ Summary of Key Points from “A

National Action Plan on Lawyer Conduct and

Professionalism” (Adopted by the Conference of Chief

Justices January 21, 1999).

First, the Conference of Chief Justices in the

“Introduction” states: “(T)he vast majority of lawyers

in this country are competent professionals. They are

conscientious advocates of their clients’ interests,

honest in their representations to courts and to

opposing counsel, civil to their legal colleagues, and

generous contributors of their time and expertise to

their communities. In short, they conduct themselves

according to the highest dictates of the legal profession.

(Page 1) ;

Second, the Conference of Chief Justices as to

“Bar Examinations” states: “The subject areas tested

on the examination for admittance to the state bar

should reflect a focus on fundamental competence by

new lawyers.

Comment

State bar examinations traditionally test bar

applicants’ knowledge of substantive legal principles,

but rarely require more than a_- superficial

demonstration of the applicants’ understanding of legal

ethics, professionalism, or basic practical skills.** Thus,

they fail to provide an effective measure of basic

competence of new lawyers. The format of the bar

examination should be modified to increase the

emphasis on the applicants’ knowledge of applied

practical skills, including office management skills.

Performance testing methods should be used to

l7a

evaluate applicants’ writing, research, and

organizational skills. An essay question format is

preferred over a multiple choice format for testing

ethics and professional responsibility. Essay questions

should incorporate issues related to legal ethics and

professionalism, including the consequences. of

unprofessional, unethical, and incompetent practice

habits.

A passing score on the bar examination should

be an indicator of basic competency to practice law.

Scoring of the bar examination should be consistent

within the jurisdiction. To the extent that interstate

coordination is practical, the scoring should be

consistent with neighboring jurisdictions. (Page 15)

Third, the Conference of Chief Justices as to

“Interstate Cooperation” states:

“The appellate courts of highest jurisdiction

should cooperate to ensure consistency among

jurisdictions concerning lawyer regulation and

professionalism and *~ pool resources as appropriate to

fulfill their responsibilities. Specific efforts of

interstate cooperation include:

° Continued reporting of public sanctions to

ABA National Regulatory Data Bank;

° Using the Westlaw Private File of the

ABA National Regulatory Databank;

° Inquiring on the © state's annual

registration statement about licensure and_ public

discipline in other jurisdictions;

° Providing reciprocal recognition of CLE;

° Establishing regional professionalism

programs and efforts;

° Recognizing and implementing — the

International Standard Lawyer Numbering System

created by Martindale-Hubbell and the American Bar

18a

Association to improve — reciprocal disciplinary

enforcement; and

e Providing information about bar

admission and admission on motion (including

reciprocity) on the bar’s website.

Comment

Successful efforts to improve lawyer

conduct and _ professionalism require a_ national

commitment. Legal practice in multiple jurisdictions

increasingly is the rule rather than the exception,

particularly given improvements in communication and

transportation technology. The appellate courts of

highest jurisdiction should not only provide leadership

and coordination of professionalism and legal ethics

programs within their own states, but also should

encourage interstate cooperation, including pooled

resources. (Page 34)

Exhibit S “A National Action Plan on Lawyer Conduct

and Professionalism” (Adopted by the Conference of

Chief Justices January 2], 1999). (Full Report). -

Exhibit T- “Chart VIII Admission on Motion”

Comprehensive Guide to Bar Admission Requirements

(National Conference of Bar Examiners and American

Bar Association Section on Legal Education and

Admission io the Bar 2005).

Chart VIII establishes 34 States (including the

District of Columbia) have adopted admission on motion

without any further testing. Additionally, since Chart

VIII was published the State of Kansas has adopted

admission on motion for experienced attorneys.

Exhibit U-— National Conference of Bar Examiners

Admission on Motion Statistics — 27,255 attorneys

admitted to another State’s Bar on Motion in between

1999-2004

19a

These public records also reveal that 702

attorneys were admitted to the bar of the Pennsylvania

Supreme Court, and thus were categorically eligible

for general admission on motion to the bar of the

Eastern District of Pennsylvania without taking any

additional bar examination.

Additionally, these 27,255 “mainstream”

attorneys admitted on motion to the States were

categorically ineligible for general admission privileges

to the bar regardless of individual merit under the

extremist” “local” rules of the United States District

Courts for the Districts of New Jersey and California.

Exhibit V - Foreign Legal Consultant Licensing Rules

Have Been Adopted by 26 States, American Bar

Association Center for Professional Responsibility

Joint Committee on Lawyer Regulation (September 20,

2005). Thus, foreign lawyers in 26 states have been

certified as privileged to practice foreign law: While

Plaintiff American citizen federal practice specialists

are categorically ineligible regardless of individual

merit for certification and general admission privileges

to the United States District Courts under the

challenged “local” (sic) rules.

Exhibit W- Kenneth Owen Supplemental Declaration

of Injury

Exhibit X- PLAINTIFFS’ NOTICE AND REQUEST

FOR A FRCP 26(f) CONFERENCE dated November

30, 2006: To which defense counsel has refused to

cooperate with.

Exhibit Y- PLAINTIFFS’ Interrogatories (First Set),

Requests for Admission, and Notice of Deposition to

Alberto R. Gonzales dated December 9, 2006 ignored by

defense counsel.

Dated: January 31, 2006

20a

Respectfully submitted,

By: /s/ Joseph Robert Giannini

Joseph Robert Giannini, Esq.

PA SB # 38814

Counsel for Plaintiffs

925 S. Westgate Ave. #102

Los Angeles, CA 90049

Phone 310 442 9386

Fax 310 826 7989

Email: j.giannini@verizon.net

2la

Supreme Court of Pennsylvania

CERTIFICATE OF GOOD STANDING

John F. O'Rourke, Esq.

DATE OF ADMISSION

June 16, 1993

The above named attorney was duly admitted to the

bar of the Commonwealth of Pennsylvania, and is now a

qualified member in good standing.

Witness my hand and official seal

Dated: September 2, 2005

Patricia A. Nicola

Chief Clerk

22a

DECLARATION OF JOHN F. O'ROURKE

I, JOHN F. O'ROURKE, am competent to testify and

have personal knowledge and being duly sworn, depose

and state the following in support of the complaint

NAAMJP v. Bush and the relief requested therein:

@ I am a name plaintiff in this action, and bring

this action both as a member of the NAAMJP, and as

an individual.

2. I am an Attorney-at-Law, admitted to practice

before the Supreme Court of Pennsylvania, on June 16,

1993. Attached hereto is a Certificate of Good Standing,

obtained from the Prothonotary of the Supreme Court

of Pennsylvania and dated; also attached is an

abbreviated copy of my Curriculum Vita, summarizing

my education, employment, bar admissions, technical

associations, award, and selected publications. 3.

3. I was admitted on October 16, 1995, as an Attorney-

at-Law at the Bar of the Court of Appeals for the

District of Columbia.

4. I also am a member of the Federal Bar, being

admitted to practice before the United States District

Court of the Western District of Pennsylvania on May

27, 1993; before the United States Court of Appeals for

the Third Circuit on November 25, 1994; the United

States Court of Appeals for the Federal Circuit on

January 31, 1995; and the United States Court of

Appeals for the Ninth Circuit in 2005.

23a

5. Further, I am registered to practice before the

United States Patent and Trademark Office, admitted

on May 8, 1995.

6. I earned a Juris Doctor (JD) from the Temple

University School of Law (now Beasley School of Law),

Philadelphia, Pennsylvania, in January 1993.

7. Prior to practicing law, I earned a Bachelor's in

Electrical Engineering (BEE) and a Masters of Science

in Electrical Engineering (MSEE) from the Villanova

University College of Engineering, Villanova,

Pennsylvania, in May 1984 and May 1989, respectively.

8. Furthermore, I am a Registered Professional Nurse,

currently licensed to practice in both Pennsylvania and

New Jersey; I earned an Associate in Science, Nursing,

at the Atlantic Community College (now Atlantic Cape

Community College), Mays Landing, New Jersey, in

June 1977.

9. I currently practice as a Registered Patent Attorney

in Orange County, California; however, I am _ not

admitted to the California Bar. I am Constitutionally

authorized to practice law under the Sperry Doctrine of

federal preemption under the Supremacy Clause, which

Doctrine, simply put, forbids any State from infringing

upon my right to practice in a substantive area of law

that is exclusively federal in nature. The Sperry

Doctrine was first enunciated in SPERRY vy.

FLORIDA EX REL. FLORIDA BAR, 373 U.S. 379

(1963).

10. In virtually every jurisdiction, local rulemaking

groups facilitate federal Constitutional objectives by

24a

formulating administrative rules of court. These rules

are made at the request of a local Article III judge or

judicial council. Such rules of court may include specific

provisions regulating persons seeking admission to the

bar of the respective local federal district court. In

general, I neither oppose nor claim harm from local

rules aimed to facilitate federal Constitutional

objectives, which are applied with a reasonable degree

of uniformity among all of the federal districts.

11. My harm, in short, arises from the lack of uniformity

and unjustifiable disparities in qualifications for

admission to practice in a_ substantive area of

exclusively federal law, as those diverse qualifications

are expressed among the local rules of the ninety-four

(94) federal district courts of the thirteen (13) Federal

judicial Circuits.

12. I have sustained concrete injuries to my

professional practice and career, and to my personal

life, as a direct result of the patchwork of local rules

among districts of the federal courts.

13. These aforementioned injuries impose an actual,

ongoing harm that exists presently and in the past. The

effect of these injuries is cumulative.

14. In addition to suffering actual, direct, and personal

injuries, the local rule patchwork creates a milieu of

diminishment, in which I will inevitably suffer

continued actual, direct, and personal injuries.

15. By "milieu of diminishment," I mean that the

patchwork of local rules in the federal judiciary, such as

in the four local Districts of California, creates a

25a

negative and hostile professional working environment,

essentially nationwide in scope, in which I am branded

with second-class status - as something less than a "real

attorney" - and am prevented from representing clients

in federal courts, de jure, in California, and, de facto, in

other jurisdictions as a result of my diminished status

in California, as perceived by other California

practitioners.

16. In jurisdictions such as the four federal district

courts of California, local rulemaking is undertaken by a

rulemaking body at the request of a local Articie III

judge, or judicial council groups. This group, drawn

from local members of the State bar, formulates self-

serving rules barring admission to any attorney

deemed, in an idiosyncratic manner, to be unworthy of

admission to the local federal bar.

17. Under the local rules of the District Courts of

California’, an attorney may routinely represent clients

before these federal courts o if that attorney is

admitted to the California Bar, even if that attorney

practices in an area of law that is exclusively federal in

nature, is preemptive of State laws, and is not amenable

to regulation or control by the State Bar, except as

otherwise allowed by federal law.

18. Under the local rules of the District Courts of

Californiafn2, any attorney who lives or works in

‘California is barred from making pro hoc vice

appearances before these federal courts. Again, such

restrictions are wrongly applied against practitioners of

federal law in California, even if that attorney practices

in an area of law that is exclusively federal in nature, is

preemptive of State laws, and is not amenable to

26a

regulation or control by the State Bar, except as

otherwise allowed by federal law.

19. As a direct and immediate result of the local rules of

the four federal district courts in California, I am

unable to make an "appearance before the Court on

behalf of another party or a class" on any, exclusively

federal, patent or copyright matter, in any of these

courts, merely because of my place of residence,

namely, California.

20. Ironically, although any client seeking my services

in California would necessarily be turned away, I could

represent the same clients on the same matters,

exclusively federal in nature, in the federal district

courts of other locations within the Ninth Circuit,

including Alaska, Arizona, Hawai'i, Idaho, Montana,

Nevada, Northern Mariana Islands, Oregon, and

Washington.fn3 The practical impact is not merely

"chilling," it eliminates me _ from _ consideration,

regardless of my technical and patent knowledge and

experience.

21. Likewise, in other federal district courts having

idiosyneratic restrictive local rules for admission, a

client seeking my representation in that forum would

be denied my counsel on an exclusively federal patent

or copyright matter, merely because the local bar, by

way of the local district court rules, imposes an

arbitrary barrier to practice on a federal practitioner.

Thus, these local rules deny clients the right to seek the

most qualified counsel to represent them in federal

district court on a federally-preempted matter of law.

27a

22. Many attorneys, who practice in esoteric areas of

federal law, like me, have multi-professional

backgrounds enriched though many years of diverse

education and professional experience in specialized

extralegal areas. Moreover, by undertaking the study

of specialized areas of law, such a practitioner brings a

depth and breadth of knowledge to the client that is

unrivalled by others of more pedestrian training,

despite the best efforts of the ordinary practitioner.

These attorneys meld their expertise in one or more

arcane extralegal disciplines with a body of specialized

legal skills, directing the concerted whole to their

client's relief. In many cases, such an attorney may be

one of the few to speak a client's specialized language

and terms of art, to fully appreciate the client's needs,

and to translate those needs into the court of a federal!

district court. To deny clients the services of such

experts merely on arbitrary grounds is unfathomable.

23. I bring to the Court first-hand knowledge of such an

extra-legal background. My extra-legal background

incorporates the electronic, communications, and

computer arts, the life sciences and healing arts; and

the physical sciences, including nuclear and reactor

physics, and mechanical engineering. Although there

are numerous others dispersed across the nation, whose

qualifications would dwarf mine, I respectfully sut it

the following summary of my life's work.

24. For nearly twenty (20) years prior to undertaking

the study of law, I studied and worked in three

disparate scientific disciplines - nuclear operations,

nursing, and electrical engineering - from which I

cultivated a uniquely broad and deep base of theoretical

and empirical knowledge and skills. I actively expand

and update this knowledge base, to keep it relevant to

28a

the evolving needs of scientific and technical clients

seeking protection for their inte!lectual property.

25. In 1969, I enlisted in the United States Navy. After

basic training, I received 18 months of intensive

training in ship's propulsion and auxiliary systems;

mechanical, electrical, and chemical sciences; nuclear

physics; nuclear reactor theory and _ operating

principles; and actual nuclear reactor and primary

systems operations. I applied that knowledge and

developed key skills as a Nuclear Reactor Mechanical

Operator, on the aircraft carriers, the U.S.

Enterprise, and the U.S.S. Nimitz. Due to injuries

received aboard the U.S.S. Enterprise in the South

China Sea off the coast of North Vietnam, I received an

Honorable Discharge under Medical Reasons in 1974.

As a result, 1 am

classified by the United States Department of

Veteran's Affairs as a disabled Vietnam veteran,

having a_ rated, line-of-duty, service-connected

disability.

26. Not realizing the long-term effects of those injuries,

I studied nursing at Atlantic Community College (now

Atlantic Cape Community College), in Mays Landing,

NJ. There I learned the technical aspects of the human

animal and its environment - chemistry, anatomy,

physiology, microbiology, and many hours of clinical

study followed by supervised clinical practice. In 1977, I

earned an Associate's Degree in Nursing and,

successfully completing the licensure examination, I

began practice as a Registered Nurse in New jersey in

1977. Later, in 1979, I was admitted to practice in

Pennsylvania, becoming a Research Nurse Specialist at

the Children's Hospital of Philadelphia. There I was

29a

involved in many advanced studies involving

endocrinology : metabolism, cardiology, oncology,

iniecuious Giseases, and the like. As much as i enjoyed

being a Nurse, my military injuries (both knees) made

this practice setting very difficult. I opted to attempt

Electrical Engineering because of the emphasis of

cerebral efforts over physical labor.

27. My career transition from the physically-demanding

clinical practice of a Registered Nurse to the

intellectually-demanding undertakings of an Electrical

Engineer was under the aegis of the Veteran's

Administration Vocational Rehabilitation Program. As

the vears pass, the daily impact of this disability on

routine physical activities of

daily life become increasingly apparent; and my

dependency upon my intellectual assets becomes more

absolute.

28. In 1984, I earned a Bachelor's in Electrical

Engineering and in 1989, a Master's in Electrical

Engineering from Villanova University. In the interim,

I worked in the semiconductor industry as an engineer

for Intel Corporation; and in telecommunications

engineering in the first public switched-packet net work

for GTETelenet. By 1989, it became clear that the

Philadelphia economy offered a brutal future for

engineers, so | evolved a plan to focus my prior

knowledge and skills in a burgeoning area of law

patents,

29. In 1991 and 1992, I clerked as a Summer Associate

at the law firm of Buchanan Ingersoll, P.C..,

headquartered in Pittsburgh, Pennsylvania, for the sole

purpose of becoming a patent attorney. Although |

30a

attended law school in Philadelphia, and lived with my

wife and young son in the Philadelphia suburbs, I

Toliowed tne advice vi seasuned peaverf. dtvurneys wn

Philadelphia and seized the rare opportunity offered by

Buchanan Ingersoll to learn the arcane, but richly

developed, legal arts of patent claim drafting, patent

preparation, and patent prosecution.

’

30. In 1993, upon graduation from law school, I began

practice as at Buchanan Ingersoll as an Associate

Attorney in the Intellectual Property section, where I

clerked in 1991 and 1992. While studying for the United

States Patent and Trademark Office registration

examination, I studied the complex body of law known

as patent prosecution. However, my responsibilities

also included supervised projects involving patent

opinion drafting, patent litigation support, expert

opinion analysis, trademark, copyright, trade secret,

technology transfer and licensing, federal and state

regulatory agency law, and a wide range of other

supervised projects having a technical flavor.

31. Since 1993, I have been an Attorney-at-Law, who is

an active, avid practitioner of intellectual property law,

in both private and corporate practice, and have

augmented my technical knowledge base with hard-

won legal insights drawn from a dozen-plus years as a

Patent Attorney/ advocate representing individual,

entrepreneurial, corporate, and academic clients from

across the United States and around the world.

32. Collectively, these clients develop, for example,

electronics, networking and data communications,

robotics, VLSI devices and manufacturing, terrestrial

and satellite telecommunications, computer hardware

Sla

and software components and systems, medical-surgical

systems and devices, and energy and transportation

systems.

33. Exemplary patent clients have included a sole

inventor with spare resourc@s-and-# dream; a regional

business emerging into a national presence; a US-based

Fortune 100 corporation, protecting its geographically-

dispersed US workforce by preserving its position in

the global technical arena; and a_ foreign-based

international conglomerate expanding operations into,

and creating jobs within, multiple US States.

34. A common theme among the clients that I have

services is that I am able to speak in their “tongue,”

whether a neurosurgeon, an Internet pioneer, a long-

time telecommunications expert, a Ph.D. nuclear

physicist, or a multitalented entrepreneur.

35. I also stood vigil, at drape's edge, in an Operating

Room - as Patent Counsel - during a clinical trial of a

surgical robot, evaluating which intellectual property

was contributed by my client as part of a multi-

organization, multi-disciplinary team, unaffected by the

frank realities of the surgery, yet attuned to the

distinctions made amid the confluence of medical,

mechanical engineering, electmcal engineering,

software and computer engineering discussions that

were abuzz among the many disciplines represented in

the Operating Theatre. The senior orthopedic surgeon

in the effort quipped that I was the only attorney that

he would let into an operating room. Point well taken.

36. By about mid-1999, I reaffirmed my desire to

continue the evolution of my legal career into that of a

32a

“full-service” Intellectual Property attorney, such as I

began at Buchanan Ingersoll in 1991. To reach this goal,

I resolved to gain the knowledge and the experience

that would be needed to allow my legal practice to

competently include a full range of services among the

domain of intellectual property law, with a special

emphasis on patent procurement, management,

licensing, enforcement, and defense. Although my

litigation roles to that time were primarily supportive, I

looked for opportunities, which would permit me to

expand my experience in patent litigation, and to

continue building upon my base of patent prosecution

experience.

37. In 1999, I accepted an offer for such employment at

a Southern California Intellectual Property Law

boutique firm, which represented clients in a variety of

the region's burgeoning technical industries. There, |

continued to practice patent law, on the basis of

registration with United States Patent and Trademark

Office and admission as an Attorney in Pennsylvania

(or the District of Columbia). The practice of law in this

manner is protected under the Supremacy Clause of the

United States Constitution, as decided in Sperry V.

Florida Ex Rel. Florida Bar, 373 US 379 (1963).

38. Although I had been a member of the federal bar

since May 1993, including the United States Courts of

Appeals for the Third Circuit and for the Federal

Circuit since 1994, I soon discovered that I would not be

permitted to have meaningful involvement in federal

patent litigation matters because the Local Rules for

the four federal District Courts of California required

that I first be admitted to the California Bar,

irrespective of my membership in other state and

33a

federal bars. Over the next several years, the projects

to which I was assigned were nearly exclusively patent

preparation and prosecution, denying me the patent

litigation experience that I sought to receive. I could

not be brought onto patent and other federal litigation

projects without exception, I was told, because I was

not admitted to the California Bar.

539. It is my observation that I am not considered for |

any federal litigation tasks, even in patents, regardless

of where the case may lie. The longer 1 am unable to

practice in California federal courts, the less likely that

I will gain that experience elsewhere. Thus, I have

first-hand knowledge of actual harm inflicted upon

patent attorneys working in California, who are not

admitted to the California Bar.

40. It also is my observation that the Local Rules of the

affected federal district courts, such as those in

California, create a de facto "Local Rules apartheid,"

which imposes irrational limitations on federal bar

practice upon otherwise qualified members in good

standing of the federal bar, including myself. The

practical effect of the restrictive local rules, as is the

case with the federal district courts in California, is to

create a de facto, two-class federal bar.

41. The actual harm caused by the “Local Rules

apartheid" is most plainly shown in daily practice.

Subject to the Local Rules, Registered Patent

Attorneys who are not admitted to the California Bar,

such as I, may not routinely enter appearances to

represent their clients on federal patent matters in the

district courts of California. Similarly, these patent

attorneys cannot make routine appearances in support

34a

of other Counsel, to apply their special technical and

legal expertise on federal matters.

Moreover, admission to the California Bar itself may be

irrelevant to gaining admission to an _ out-of-state

federal district court, where the idiosyncratic Local

Rules of that outof-state federal district court likewise

require state court admission, as does the Local Rules

of the federal district courts of California.

42. Based on my personal observations and experiences

during the period from September 1999 to the present,

oppressive local rules, such as the local rules of the four

California District Courts, limit _ professional

development opportunities, substantially reduce

opportunities for employment or client development,

and create a class of second-tier federal practice

attorneys whose dismissal may be easily justified

during an economic downturn by their perceived lack of

versatility. This is one stark, long-term example of the

aforementioned "milieu of diminishment."

43. As the recent technical recession of 2000-2004

reached its nadir, I experienced first-hand the impact of

the "Local Rules apartheid". In 2002, at the age of fifty-

two and physically disabled, I was out of work and in a

jurisdiction whose Local Rules prevented me from

finding meaningful employment by applying my

technical and patent prosecution expertise in a

litigation setting, even if prosecution case work was

sparse. The financial effects were catastrophic.

44. Thus, not only do these defective Local Rules create

a subclass of "less versatile" federal attorneys, who are

less desirable as employees or as future partners, these

50a

defective Local Rules twice-penalize the de facto

attorney subclass by creating significant barriers to

their re-employment - regardless of previous legal or

technical experience. These barriers themselves do

create circumstances which become barriers to being

admitted to the California Bar, leaving no way out.

45. During the period of 2002-2004, I aggressively

sought re-employment by turning to executive

recruiters, by responding to advertisements in print

and electronic legal publications, and by making plain

cold calls. I received only two responses out of over

three hundred - both negative.

46. In a dramatic turn-about from 1999-2000, in 2002-

2003, prospective California employers, both law firms

and in corporations, demanded almost universally that,

to be considered as a candidate for employment, a

registered patent attorney be admitted to the

California Bar.

47. Moreover, California Bar admission trumped other

qualifications, including graduate degrees in a technical

area of interest, or prior corporate patent practice

experience. In rare, frank conversations with

executive/legal recruiters regarding my state of affairs,

my lack of admission to the California Bar - and being

considered as "unavailable" for patent litigation projects

- was the most significant barrier.

48. Because admission to the highest local state court is

not a universal requirement for admission to the bar of

a federal district court, it became all too apparent that

these oppressive Local Rules impose an arbitrary

barrier to practice for affected federal attorneys.

36a

Moreover, these Local Rules force clients needing

counsel having specialized legal and technical expertise,

to select from a smaller pool of potentially less-qualified

professionals

49. I am currently employed again as a Registered

Patent Attorney. However, the impairments, imposed

by the oppressive federal district court Local Rules in

all three Districts of California, remain. I cannot make

appearances on behalf of clients, in exclusively federal

matters, including in patent or copyright matters,

before any of the federal District Courts of the

Northern District, Eastern District, Central District, or

Southern District of California. The infirmities of the

California federal district court Local Rules

notwithstanding, there are a number of other federal

district courts in which I cannot make appearances on

behalf of clients, in exclusively federal matters,

including in patent or copyright matters, because the

Local Rules for admission to the respective bars of

those federal district courts are similar to the arbitrary

restrictions imposed in California.

50. The absurdity of these challenged local rules is

further evident because in some areas of federal

practice I could be qualified as an expert witness under

the Federal Rules of Civil Procedure, however, I am

categorically barred from representing clients as

counsel in litigation. Thus, I am qualified to be an

expert witness on various intellectual property and

scientific litigation cases but denied the right to act as

counsel, while attorneys that are not admitted to the

patent bar are eligible to serve as counsel in these

intellectual property and scientific litigation cases.

37a

51. It is a well know enormous advantage for a licensed

doctor who is also a lawyer to serve as counsel in

medical malpractice cases, both in settlement discussion

and in litigation, whereas that parallel privilege is

modified and abridged, and others with similar

credentials and experience, by the challenged local

federal district court bar admission rules.

52. Until the local rule patchwork is abolished, I

inevitably will suffer additional and very real injuries.

Until those rules are eliminated, and federal bar

practice is made uniform nationwide, I will face the

same vulnerability and continue be tagged as “less

versatile" solely due to these arbitrarily restrictive

Locai Rules. Unless the local rule patchwork is

abolished by a favorable decision, I expect actual future

injuries to my person and to my career to have a

devastating effect both in the present and in the future.

Sworn to under penalty of perjury under the laws of

the United States.

Dated: 10-24-2005

38a

DECLARATION OF ALAN ELLIS

1. ALAN ELLIS, am competent to testify, and have

personal knowledge, and if called as a witness would

declare under oath the following in support of the

complaint NAAMJP v. Bush and the relief requested

therein:

2. I am a name plaintiff in this action, and bring this

action both as a member of the NAAMJP and as an

individual. I am herein incorporating by reference a

true and correct copy of my Curriculum Vitae attached

herewith.

3. I am a principal in the Law Offices of Alan Ellis. The

Law Offices of Alan Ellis has a national practice and

regional offices in San Francisco (San _ Rafael),

California and Philadelphia (Ardmore), Pennsylvania.

Our web site address is www.alanellis.com.

4. The Law Offices of Alan Ellis is a full-service

sentencing, and postconviction law firm representing

federal criminal defendants and inmates throughout the

United States and abroad. Our practice area of federal

criminal defense, of course, comes within the ambit of

the 6th Amendment right to counsel, and includes:

° Appearing as criminal defense counsel in the

federal district courts.

e Habeas corpus 2255 and 2241 petitions.

Plea negotiations.

Sentencing representation and consultation.

Direct appeals in all circuits from conviction and

sentence.

e Rule 35 motions.

39a

° Supreme Court practice.

e Prison designation, transfers, disciplinary

matters, and other problems.

* Parole representation.

° International prisoner transfer treaty work for

foreign inmates and Americans arrested abroad.

4. Approximately one-third of our work comes to us

from defense attorneys requesting our assistance on

cases. Another third of our cases come to us from

defendants, their family and friends wanting us to work

with their attorneys. The remaining third come to us

from defendants, inmates or their family and friends

with requests for representation.

5. Most of the attorneys associated with the Law

Offices of Alan Ellis have clerked for federal judges,

and several have been law school professors. I was

privileged to serve as law clerk for the Honorable

Raymond J. Broderick, of the Eastern District of

Pennsylvania, and the Honorable John W. Lord, Jr.,

Chief Judge, United States District Court for the

Eastern District of Pennsylvania.

6. I graduated from Villanova University School of Law

in 1967, and was the editor of the Villanova Law

Review; and received the Constitutional Law Award.

7. 1am a Former President of the National Association

of Criminal Defense Lawyers (NACDL); a Former

member of the Board of Directors of the National

Council on Crime and Delinquency; Fellow of the

American Board of Criminal Lawyers; and Past

President of the ACLU of Central Pennsylvania.

40a

8. I write a regular quarterly column on Federal

Sentencing for the American Bar Association's

Criminal Justice Magazine, I am the Publisher of

"Federal Presentence and Post Conviction News" and

the co-author of the Federal Prison Guidebook, the

Federal Sentencing Guidebook and the Federal Post

Conviction Guidebook.

9. While I am admitted to practice law before numerous

federal district courts, courts of appeals, and the United

States Supreme Court, the only state in which I am

admitted to practice is Pennsylvania.

10. Because of my federal criminal practice and 3 5

years of experience in this specialty, | am regularly

called upon to serve as counsel in the federal district

courts and United States Courts of Appeals throughout

the United States. The United States Court of Appeals

for the Ninth Circuit has been kind enough to describe

me as a "nationally recognized expert in federal

criminal sentencing." United States v. Waiters, 309 F.3

rd 589 (ith Cir. 2002). In the Courts of Appeals, I apply

for general admission once and for all, and this is the

end of it. The same is not true for the district courts

where I am often met by local rules that favor local

attorneys. -

11. I am injured in fact by the local rules of the United

States District Courts that deny reciprocal general

admission on motion to out-of-state attorneys. It would

be either impossible or extraordinarily burdensome to

conduct a national federal criminal defense practice, if

the federal law specialist was required to be admitted

in every single state in which there is a federal district

court. The prohibitive cost in gaining admission in

4la

every state would also far outweigh the benefit because

State law has virtually nothing to do with my federal

criminal practice specialty. The condition precedent of

being first admitted in the forum state, in order to

obtain general bar admission privileges in the United

States District Court with that forum state,

automatically makes it more costly to practice my

federal national specialty both for me and my clients.

This increased cost limits my ability as a federal

practice expert to serve the public. This increased cost

further interferes with the public's increased demand

for specialized legal services. This increased cost

further handicaps the justice process, as well as Courts

themselves, because expert federal practice specialists

because of their experience can make the Court's job

easier.

12. This increased cost for general admission privileges

further does not provide any corresponding benefit

because my area of federal criminal practice is either

superficially or not tested on any state's bar exam. This

increase cost to obtain specialized federal legal services

also does not protect the public from incompetent or

unethical practitioners because the attorney is subject

to the jurisdiction of the federal court for conduct

occurring in the proceeding, and to reciprocal State and

federal discipline and damages regardless of where the

attorney practices.

13. The alternative of pro hac vice admission is a poor

substitute for general admission. It is often merely

discretionary

14. Pro hae vice admission drives up the costs of

litigation, local counsel/ pro hac vice fee. There is also

42a

no real benefit to either the public or the Court by

granting pro hac vice admission, but not general

admission, because the pro hac vice applicant must aver

that he is familiar with the local rules and in good

standing, as does the applicant for general bar

admission. The pro hac vice applicant is also subject to

reciprocal discipline.

15. I am particularly injured in fact by the local rules of

the Central, Southern, and Eastern Districts of

California because the Law Offices of Alan Ellis has a

regional office in California. One out of 8 Americans

lives in California. I am not admitted to the State Bar of

California, and the State of Celifornia does not have an

admission on motion provision. I am categorically

ineligible far general admission privileges under the

local rules of the federal district court because I am not

a member of the California State.

16. In U.S. v. Waiters, 309 F.3d 589 (9th Cir. 2002), on

behalf of the defendant, I applied for and was denied

pro hac vice status under the local rules of the Southern

District of California because I have an office in

California. The local rules of the Central and Eastern

Districts of California mirror the Southern District of

California. Because I am not a member of the State Bar

of California I am not eligible for general admission.

Additiona''y, because I have an office in California I am

categorically and mechanically disqualified from pro hac

vice admission in these district courts. The Ninth

Circuit held my client's constitutional right to counsel

was abridged by this pro hac vice local rule, but this

was harmless error. I was thus denied pro hae vice

admission under the local rules which have not been

changed or amended.

43a

17. If these challenged local rules are invalidated, I will

petition for general admission in the California federal

district courts where I regularly appear. Once admitted

in these federal district courts, I will be able to

represent my potential clients and clients without delay

and unjustifiable expense. This will save my clients,

potential clients, and myself valuable time and money,

and avoid the duplication of unnecessary work. This

will also save valuable Court time and money because,

whether r am appearing pro hac vice or generally, I will

still be subject to the same Rules of Professional Rules

of Conduct and reciprocal discipline.

Sworn to under penalty of perjury under the laws of

the United States.

Dated: 1-6-06

Alan Ellis

44a

Supreme Court of Pennsylvania

CERTIFICATE OF GOOD STANDING

Alan Ellis, Esq.

DATE OF ADMISSION January &, 1968 The above

named attorney was duly admitted to the bar of the

Commonwealth of Pennsylvania, and is now a qualified

member in good standing.

Witness my hand and official seal

Dated: August 24, 2005

John W. Person Jr.

Deputy Prothonotary

ALAN ELLIS

The firm's founder, Alan Ellis, is a_ nationally

recognized authority in the fields of plea negotiations,

sentencing, appeals, parole and prison matters, habeas

corpus 2241 and 2255 petitions and _ international

prisoner transfer treaties. For the past 35 years, he has

successfully represented federal criminal defendants

and prisoners throughout the United States and

abroad. He is a sought-after lecturer in criminal law

education programs for attorneys and is widely

published in the areas of federal sentencing and post

conviction remedies, with more than &5 articles to his

credit.

Mr. Ellis is

+ Former President of the National Association of

Criminal Defense Lawyers (NACDL

45a

e Former member of the Board of Directors of the

National Council on Crime and Delinquency

° Fellow of the American Board of Criminal

Lawyers

. Past President to the ACLU of Central

Pennsylvania

° AV rated by Martindale-Hubbell - an AV Rating

is Martindale-Hubbell's highest ratings for attorneys. It

shows that a lawyer has reached the height of

professional excellence. He or she has usually practiced

law for many years, and is recognized for the highest

levels of skill and integrity.

At the forefront of critical issues facing the criminal

defense bar, Mr. Ellis founded the NACDL Lawyers

Assistance Strike Force which has attained national

prominence for its support of criminal defense lawyers

who are prosecuted, subpoenaed and harassed as a

result of their ethical and vigorous defense of their

clients. He also founded NACDL's Amicus Curiae

Committee which, during his tenure, filed briefs in over

40 major state and federal cases throughout the United

States. For his work in founding NACDL's Strike

Force and Amicus Committee, he was awarded the

Association's 1983 Robert C. Heeney Award for

distinguished contributions to the criminal defense bar.

Mr. Ellis has been interviewed extensively by the

national media, including the New York Times,

Washington Post, Thne Magazine, USA Today, "NBC

Nightly News", "ABC World News Tonight", "CNN

Prime News", "CBS Radio News", and "National Public

Radio",

46a

He has been featured in the American Bar Association

Journal, the San Francisco Recorder, the Philadelphia

Inquirer, the Pacific Sun and profiled by the syndicated

TV magazine show, "In America/The West" as well as

KGO TV, the ABC affiliate in San Francisco. Mr. Ellis

has written numerous editorials on criminal justice

issues which have appeared in the Wall Street Journal,

San Francisco Chronicle, Atlanta Constitution, San

Diego Union, Oakland Tribune, Sacramento Bee, St.

Louis Post Dispalch, Chicago Tribune, Salt Lake City

Tribune, Pittsburgh Press, and LaOpinion. Mr. Ellis

authors a regular quarterly column on _ Federal

Sentencing for the American Bar Association's

Criminal Justice Magazine and is the Publisher of

"Federal Presentence and Post Conviction News" and

the co-author of the Federal Prison Guidebook, the

Federal Sentencing Guidebook and Federal Post

Conviction Guidebook.

He has served as a member of the editorial board of the

Criminal Practice Manual published by the Bureau of

National Affairs Inc. and Drug Law Report published

by Clark Boardman, Ltd.

A former law professor and federal law clerk to two

federal judges, Mr. Ellis is a 1967 graduate of Villanova

University School of Law and an editor of the Villanova

Law Review.

Mr. Ellis, age 61, is married to Lianne C. Scherr, a

mitigation specialist member with the firm, has two

children and two grandchildren and a golden retriever.

47a

District of Columbia Court of Appeals

Committee on Admissions

500 Indiana Avenue, N.W. -

Room 4200 Washington, D. C. 20001

202 / 879-2710

I, GARLAND PINKSTON, JR. , Clerk of the District

of Columbia Court of Appeals, do hereby certify that

DONALD RAY HARRIS was on the 1" day of

MARCH, 2009 duly qualified and admitted as an

attorney and counselor and entitled to practice before

this Court and is, on the date indicated below, an active

member in good standing of this Bar.

In Testimony Whereof, I have hereunto subscribed my

name and affixed the seal of this Court at the city of

Washington, D.C . ,on September 27, 2005.

September 27, 2005.

GARLAND PINKSTON, JR. , CLERK

Deputy Clerk

Declaration

I, Donald R. Harris. and attorney licensed by the Bar of

the District of Columbia. I practice law in the Northern

District of Ohio Federal Courts. I have been admitted

to practice before the United States District Court in

Northern Ohio and The United States Bankruptcy

Court for the Northern District of 'Ohio, I do affirm and

state the following:

:. I have passed all the requirements to practice

before the bankruptcy bar in the Northern District of

Ohio.

2. I have been admitted pro hac vice before the

United States Bankruptcy Court for the Middle

District of Florida in Orlando, Florida.

3. I have been admitted pro hac vice before the

United States Bankruptcy Court for the Southern

District

4. I have been harmed by the inability to practice

in other jurisdictions of the Federal Bankruptcy Courts

even though I have met the requirements of the

Federal Bar in the above mentioned districts.

Further sayeth naught

Donald Ray Harris

Dated: 10/24/05

Before me a notary, appeared Donald Harris on this

24th day of October 2005.

49a

DECLARATION OF KENNETH OWEN

I, KENNETH OWEN, am competent to testify, and

have personal knowledge, and if called as a witness

would declare under oath the following in support of

the complaint NAAMJP v. Bush and the relief

requested therein:

1. I am an officer of the NAAMJP. I am a member of

the State Bar of Arizona, the District Court of Arizona,

the Ninth Circuit, numerous other United States

Courts of Appeals, and the United States Supreme

Court. I practice in immigration law with a focus on

federal appeals.

2. I am as an officer of the NAAMJP authorized to

make this Declaration in support of our complaint and

motion for preliminary injunction and injunction. As the

12 colonies joined together for their common purposes,

the NAAMJP is a non-profit public benefit corporation,

organized under California law with offices in Los

Angeles, CA, that has joined together for a common

purpose. We are a national association and have

members working and living throughout the United

States.

3. Our members, like myself, are often called upon to

travel to and serve as counsel for our clients and

prospective clients in states other than in the State

where we are initially admitted. Our members are often

called upon to travel across state lines to vindicate

federal rights including their own rights.

4. The NAAMJP public purpose is stated in our name,

and it is also to assist and facilitate our members First

50a

Amendment rights and the adopting of the

recommendations of the ABA MJP Commission.

5. Our associational mission is also not unlike the

NAACP. The National Association for the

Advancement of Colored People was organized and

operated because black people were not being treated

equally under our Constitution because of popular

prejudice against them. As elegantly stated by Martin

Luther King, Jr., "The right to petition includes the

right to petition for rights." Attorneys in this 21St

Century, often times are treated much like black people

when they cross state lines because of popular

prejudice against them. They are denied equal

privileges and immunities. They are denied the right to

petition for rights. The Bil! of Rights sacred promise

has been betrayed by the United States government by

secret vote without any record being made of the

proceedings.

6. Attorneys in this 21 St Century - much like our

Founding Fathers who stated the famous taboo "No

taxation without representation" - are being taxed by

the United States government and denied their rights

to choose their representatives ia the United States

District Courts by the challenged local rules. These

local rules betray the core promises upon which our

more perfect Union was formed.

7. The NAAMJP as an organization is injured by the

challenged local United States District Court rules

because we cannot associate and select our counsel of

choice in order to petition for the redress of grievances.

Our members individually are also injured by the

challenged local rules because the NAAMJP is

5la

handicapped in expressing their associational and

petition rights. When more than one person joins

together to express their communication in a petition,

each has an indivisible and united interest in the

redress of those grievances.

8. For example, the NAAMJP, as well as myself

individually, are injured-in-fact by the local rules of the

District Courts in New Jersey and California. These

local rules only permit local attorneys to gain admission

in the federal district courts in New Jersey and

California. The NAAMJP is injured-in-fact because |

am categorically, and so are many of our other

members, categorically barred from serving as counsel

for our filing the subject complaint by the local rules of

the District of New Jersey and the Central District of

California.

9. I am neither a member of the State Bar of New |

Jersey nor California. Thus I am categorically barred

from general admission in all of the federal district

courts sitting in California. I also live in California. As

such, I am categorically disqualified from pro hac vice

admission in the Southern, Central, and Eastern

District Courts of California because I live and work in

California. In other words, I can represent my clients

before United States Immigration Courts, the District

of Arizona, the Ninth Circuit, and the U.S. Supreme

Court, but not the federal district courts sitting in

California.

10. As one attorney that we have requested to assist us

has succinctly stated the issue, "you want to retain me

to bust up our monopoly?" This federal "local" rule

52a

discrimination provides a reinforcing steel sword and

Chinese wall for state unlawful conduct.

11. We are, and I am, further injured because we cannot

freely vindicate federal rights and champion locally

unpopular causes that arise from unlawful State laws -

that could be challenged in federal district court -

because of State law that has nothing to do with federal

law and federal bar membership.

12. What is at issue in this Complaint is not a

controversial subject such as the right to abortion, or

the right to gay marriage, what is at issue here arises

from Congressional enumerated powers and is squarely

protected by the Bill of Rights: speech, association,

assembly, petition in a public forum, and travel.

13. The NAAM JP, as well as myself, are further injured

by the local rules of the Eastern District of

Pennsylvania. Arizona does not have reciprocity with

Pennsylvania. I am thus categorically denied general

bar admission in the Eastern District of Pennsylvania

because of the State of Pennsylvania's rules adoption

by reference. The NAAMJP is injured because every

time a local District Court rule drives up the cost of

petitioning for redress of grievances or discriminates

against out-of-state attorneys or citizens our

government of checks and balances - is overwhelmingly

weighted in favor of local state interests and federal

interests are categorically disrobed.

Sworn to under penalty of perjury under the laws of

the United States.

Dated: October 10, 2005

58a

Kenneth Owen

54a

CONFERENCE OF CHIEF JUSTICES

Resolution 36

Regarding the ABA Commission on _ Multi-

Jurisdictional Practice

WHEREAS, the states’ highest courts regard

consumer protection and an effective system of

professional regulation as one of their prime

responsibilities; and

WHEREAS, the Commission on Mufti-Jurisdictional

Practice (the MJP Commission) has outlined a series of

steps to improve the American Ear Association's model

rules on the practice of law and the regulation of the |

profession; and

WHEREAS, the Commission's repert emphasizes and

reaffirms the central role of state courts in

implementing improvements in law practice and

professional responsibility,

NOW THEREFORE BE IT RESOLVED that

1. The Conference of Chief Justices commends the

proposals of the MJP Commission as a good platform on

which states can build more effective, more predictable

regulation; and

2. The Conference of Chief Justices asks its

representative in the ABA's House of Delegates vote to

adopt the recommendations of the M.JP Commission.

doa

Report 201G

AMERICAN BAR ASSOCIATICN COMMISSION

ON MULTIJURISDICTIONAL PRACTICE

REPORT TO THE HOUSE OF DELEGATES

RECOMMENDATION

RESOLVED, that the American Bar Association

adopts the proposed Model Rule on Admission by

Motion, dated August 2002:

Model Rule on Admission by Motion

l. An applicant who meets the requirements of (a)

through (h) of this Rule may, upon motion, be admitted

to the practice of law in this jurisdiction.

The applicant shall:

(a) have been admitted to practice law in another state,

territory, or the District of Columbia;

(b) hold a first professional degree in law (J.D. or

LL.B.) from a law school approved by the Council of the

Section of Legal Education and Admissions to the Bar

of the American Bar Association at the time the

graduate matriculated;

(c) have been primarily engaged in the active practice

of law in one or more states, territories or the District

of Columbia for five of the seven years immediately

preceding the date upon which the application is filed;

(d)establish that the applicant is currently a member in

good standing in all jurisdictions where admitted;

56a

(e)establish that the applicant is not currently subject

to lawyer discipline or the subject of a pending

disciplinary matter in any other jurisdiction;

(f) establish that the applicant possesses the character

and fitness to practice law in this jurisdiction; and

(g) designate the Clerk of the jurisdiction's highest

court for service of process.

2. For the purposes of this rule, the "active practice of

law" shall include the following activities, if performed

in a jurisdiction in which the applicant is admitted, or if

performed in a jurisdiction that affirmatively permits

such activity by a lawyer not admitted to practice;

however, in no event shall activities listed under (2)(e)

and (f) that were performed in advance of bar admission

in the jurisdiction to which application is being made be

accepted toward the durational requirement:

(a) Representation of one or more clients in the practice

of law;

(b) Service as a lawyer with a local, state, territorial or

federal agency, including military service;

(c) Teaching law at a law school approved by the

Council of the Section of Legal Education and

Admissions to the Bar of the American Bar Association;

(d) Service as a judge in a federal, state, territorial or

local court of record; (e) Service as a judicial law clerk;

or

(f) Service as corporate counsel.

3. For the purposes of this Rule, the active practice of

law shall not include work that, as undertaken,

constituted the unauthorized practice of law in the

jurisdiction in which it was performed or in the

57a

jurisdiction in which the clients receiving the

unauthorized services were located.

4. An applicant who has failed a bar examination

administered in this jurisdiction within five years of the

date of filing an application under this rule shall not be

eligible for admission on motion.

58a

REPORT

At one time, lawyers tended to maintain their law

offices in a single jurisdiction over the course of their

entire legal careers because of the local nature of law

practice. Today, in contrast, geographic mobility is

unexceptional. Lawyers move from one state to another

in order to continue to serve clients who are relocating

or to better serve clients that function outside the

state, for personal reasons, for career advancement, or

for a host of other reasons. Lawyers change law firms

or employers, or simply reestablish their individual

practices in different jurisdictions. Lawyers in large

law firms move from one office of their firm to another.

Lawyers employed by corporations move from one

corporate office to another.

Jurisdictional restrictions impede national mobility,

because in many cases the process for admitting

lawyers to practice law in a new jurisdiction is lengthy,

expensive, and burdensome. Some states subject a

lawyer who is already licensed and experienced in legal

practice to the process designed for admitting new law

school graduates. The practicing lawyer is required to

take the state bar examination and, upon receiving a

passing grade, to undergo character and fitness review.

Although the primary concern in the submissions to the

Commission has been the application of UPL

restrictions to United States lawyers' occasional

practice in jurisdictions in which they do not maintain

an office, the Commission has also received submissions

focusing on the difficulty of establishing a law practice

in a new jurisdiction.

59a

A number of states facilitate the admission of

experienced lawyers who are moving their law practice

by allowing them to gain admission to the bar without

sitting for the bar examination, if they demonstrate

that they have been in active law practice in another

jurisdiction for a specified period of time and are

members in good standing of-the other jurisdiction's

bar. fn2 The admission on motion processes in these

states recognize the reality that lawyers who have been

admitted to another-state’s bar and have practiced

actively for a significant period of time without

disciplinary sanction are qualified to establish a law

practice in the new state, and that, for experienced

lawyers, the bar examination therefore serves as an

unnecessary obstacle to establishing a practice in the

new state. This is particularly true because, with the

advent of multi-state bar examinations, most bar-

examinations have become increasingly less distinctive

and less focused on the idiosyncrasies of individual

states' law. There is nothing to suggest that in states

with admission on motion, particular regulatory

problems are disproportionately presented by lawyers

who gain admission by this process.

Further, as urged by the ABA Section of~Legal

Education and Admissions to the Bar, it is worthwhile

to attempt to distill and standardize the criteria used

by states that employ streamlined admissions

processes. Fn3 Accordingly, the Commission

recommends that the ABA adopt the Model Rule on

Admission by Motion developed by the ABA Section of

Legal Education and Admissions to the Bar. It should

be understood that admission on motion is not an

alternative to the multijurisdictional practice standards

in proposed Rule 5.5 of the Model Rules of Professional

60a

Conduct, since no lawyer can realistically be admitted

to every state bar, even on motion. The motion rules

are directed at those lawyers who expect to relocate

their practices or to practice regularly in two or more

jurisdictions.

Footnotes

FnlSee, e.g., J. Eric Schaal, Associate General Counsel,

USG Corporation, letter dated January 8, 2002 to the

ABA Commission on Multijurisdictional Practice,

www.abanet.org/cpr/mjplcomm2 us .html.

Fn 2 See, e.g., Alaska Bar Rule 2, Section 2 (applicant

must have passed har in at least one jurisdiction and

have engaged in active practice of law five of seven

years preceding date of application in state that offers

reciprocal admission to Alaska lawyers, provided

conditions are not more demanding than those in

Alaska, and pay a _ non-refundable fee); Colorado

Admission Rule 201.3(1) (admits applicants actively and

substantially engaged in the practice of law for five of

seven years preceding application in state providing

reciprocal admission without exam to members of the

Colorado Bar); Connecticut Rules of the Superior Court

Regulation Admission to the Bar, Sec. 2-183 (applicant

must have practiced law in a reciprocal jurisdiction for

at least five of seven years preceding date of

application, be in good standing, have good moral

character and have passed an examination in

professional responsibility or completed a course in

professional responsibility, intend to practice law on a

continuing basis and devote a major portion of work

time to practicing law in Connecticut, and file a fee and

affidavits regarding character, education and

6la

disciplinary record); Illinois Admission Rule 705

(applicant must meet educational, character and fitness

requirements for Illinois attorneys, pass the Multistate

Professional Responsibility Examination, practice

continuously five of seven years in jurisdiction offering

reciprocity, and pay fee for admission on foreign

license); Missouri Supreme Court Rules Governing the

Missouri Bar, Rule 8.10 (applicant must have graduated

from an ABA approved law school and be licensed and

actively practicing five of preceding ten years in at

least one jurisdiction offering mutuality of admission

without examination; applicant must also meet

continuing education requirements, pay a non-

refundable fee, file a form for a character and fitness

report and file various affidavits regarding work

experience and good moral character); New York,

Rules of the Court of Appeals for the Admission of

Attorneys and Counselors at Law, Section 520.10

(applicant must have been admitted to practice in

highest law court in a state or territory of the United

States or in another country whose jurisprudence is

based upon the principles of the English Common Law

and be admitted to the bar of a jurisdiction that would

similarly admit New York lawyers’ without

examination; in addition, the applicant must be over 26

years of age, possess a first degree from. approved law

school, have practiced five of preceding seven years,

pay a fee and submit to other tests of character and

fitness at discretion of Appellate Division); North

Carolina Supreme Court Rules Governing Admission to

the Practice of Law Section .0502 (applicant must be in

good standing in every state in which applicant is

licensed, have active practice four of preceding six

years in a state providing comity admission for North

Carolina lawyers, supply complete background

62a

information, pay nonrefundable fee of $1500, establish

good moral character, pass the Multistate Professional

Responsibility Examination, and supply various types

of documentation including certificates of moral

character, a recent photograph and fingerprints;

applications are not considered until at least six months

after the date of filing); Oklahoma Rules Governing

Admission to the Practice of Law, Rule 2 (applicant

must have graduated from an ABAapproved law

school, show good moral character, have practiced five

of seven preceding years and be in good standing in a

reciprocal jurisdiction, and provide at applicant's

expense a report by the National Conference of Bar

Examiners; if rules of reciprocal admission and fees in

applicant's former jurisdiction are more stringent for

admitting Oklahoma lawyers, applicant shall be

governed by the more. stringent standards);

Pennsylvania Bar Admission Rule 204 (applicants must

have graduated from an ABA-approved law school,

practiced for five of preceding seven years in a

reciprocal jurisdiction, passed the Multistate

Professional Responsibility Examination and meet

various other conditions); Virginia Supreme Court Rule

1A:1 (application must be filed under oath with a

certificate saying lawyer has been licensed for at least

five years; applicant must also complete character and

fitness questionnaire, furnish report of the National

Conference of Bar Examiners upon request, and pay

$500 filing fee; thereafter, the Board will determine

whether applicant has established an intention to

practice full time as a member of the Virginia Bar and

whether applicant "has made such progress in the

practice of law that it would be unreasonable to require

the applicant to take an examination"); Washington

Admission to Practice Rule 18 (admission of lawyers

63a

from jurisdictions with substantially similar conditions

for admitting Washington lawyers, upon proof of

admission to practice, current good standing, active

legal practice, moral character and fitness, and payment

of a filing fee; if the jurisdiction that licensed the

applicant requires Washington lawyers to meet other

conditions, the applicant must meet a substantially

similar requirement); West Virginia Supreme Court of

Appeals Rules for Admission, Rule 4.0-4.5 (applicant

must demonstrate intention to practice in West

Virginia on at least a minimal basis, have practiced five

of last seven years, hold valid license from state in

which admissions’ standards are _ substantially

equivalent to standards in West Virginia, show proof of

good moral character and submit affidavits of good

character from at least two lawyers, pass the MPRE,

provide records of criminal, disciplinary and civil

proceedings, and pay application fee); Wisconsin

Supreme Court Rule 40.05 (reciprocity for applicants

admitted in jurisdictions that grant similar admission to

Wisconsin lawyers and recognize Wisconsin's diploma

privilege and applicant must have practiced for three of

preceding five years); Wyoming Statute 33-5-110

(admits foreign attorneys who have been awarded a

J.D. or LL.B. from an ABA-approved law school,

engaged in practice five of prior seven years in a

reciprocal jurisdiction, upon presentation of certificate

of admission to that state and upon a showing of

qualification, character and fitness to practice law). cf.

Maryland Code Sec. 10-210 and Rule 13, Maryland

Rules Governing Admission to Bar.

F'n3 See Counsel of the Section of Legal Education and

Admissions to the Bar, Memorandum to the ABA

Commission on Multijurisdictional Practice (Feb. 14,

64a

2001), http;//www.abanet.org,/cpr/mip/comm2 -

leab.html.

65a

No resolution presented herein represents the policy of

the American Bar Association until it shall have been

approved by the House of Delegates. Informational

reports, comments and supporting data are not

approved by the House In its voting and represent oniy

the views of the Section or Committee submitting

them.

AMERICAN BAR ASSOCIATION

LAW PRACTICE MANAGEMENT SECTION

STANDING COMMITTEE ON LEGAL

ASSISTANCE FOR MILITARY PERSONNEL

SPECIAL COMMITTEE ON PROFESSIONAL

MEDICAL LIABILITY THE BAR ASSOCIATION

OF THE DISTRICT OF COLUMBIA, CUYAHOGA

COUNTY BAR ASSOCIATION FEDERAL

COMMUNICATIONS BAR ASSOCIATION AKRON

BAR ASSOCIATION

DAUPHIN COUNTY BAR ASSOCIATION

CLEVELAND BAR ASSOCIATION FEDERAL

ENERGY BAR ASSOCIATION THE BAR

ASSOCIATION OF METROPOLITAN ST. LOUIS

SAN DIEGO COUNTY BAR ASSOCIATION

REPORT TO THE HOUSE OF DELEGATES -

RECOMMENDATION

RESOLVED, That the American Bar Association

supports efforts to lower barriers to practice before

U.S. District Courts based on state bar membership by

eliminating state bar membershin requirements in

eases in U.S. District Courts, through amendment of

the Federal Rules of Civil and Criminal Procedure to

prohibit such local rules.

66a

REPORT

THE PROBLEM

Some United States District Courts restrict practice

privileges to lawyers who are admitted to the state bar

in which the district is located.

For example, in the Washington, DC metropolitan area,

a lawyer admitted to practice in the United States

District Court for the District of Columbia may be

admitted to the bar of the United States District Court

for the District of Maryland regardless of Maryland

State bar membership. See D. Md. Local Rules 101, 701

attached hereto.*

However, in the United States District Court for the

Eastern District of Virginia, located in Alexandria,

Virginia, District of Columbia bar members may not

become members of the Eastern District of Virginia bar

without being members of the Virginia bar, which

requires a bar exam for non-Virginia residents. See

E.D. Va. Local Rule 7, copy attached hereto. Similar

problems exist in many other contiguous Federal

District Courts. See attached random survey.

IMPACT

This is not a local or regional problem. See attached

random survey. * The Law Practice Management

Section has discussed and reviewed this problem

through its Goal 6 Task Foree and debated it at its

Spring 1993 Section meeting. While not all districts are _

as restrictive as the Eastern District of Virginia, many

others require local counsel to at least be on all

67a

pleadings and restrict the number of times an out of

district attorney may appear pro hac vice. We submit

these are unnecessary and drive up the cost of litigation

to clients.

This exclusionary policy inhibits competition, restricts

lawyers from representing clients without incurring the

substantial cost of local counsel and drives up costs to

clients. Therefore, appropriate action should be taken

to eliminate such exclusionary and anticompetitive

practices.

*Copies of attachmemts are available from the Law

Practice Management Section upon request. Please call

Alice Tully at 312-988-5661.

POSSIBLE OBJECTIONS AND REBUTTAL

OBJECTION 1. Konowledge of local law is required

in each state

Rebuttal: Local law can be learned by any lawyer or

local counsel will be retained or consulted as necessary.

OBJECTION 2. Out of state lawyers will not know

the local rules. :

Rebuttal: Each lawyer must certify that he or she

has read and is familiar with the local rules prior to

being admitted to the bar of the local District Court.

See D. Md. Local Rule 701.

OSTECTION 3. Out of state lawyers will be

disciplinary problems or hard to reach.

68a

Rebuttal: Out of state lawyers will be subject to the

same discipline as in state lawyers and will be reachable

in the same way.

OBJECTION 4. Local counsel are needed in cases.

Rebuttal: § This should be the decision of the lawyer

and client, not mandated by local rule.

CONCLUSION

Given the global nature of law practice today, parochial

local rules are inefficient, unduly costly to clients and/or

lawyers and anti-competitive. Therefore, this proposal

should be adopted.

Respectfully submitted,

Donna M. Killoughey Chair

Section of Law Practice Management

Dated: November 21, 1994

69a

Civil Action No.

05-ev- 5081 TON

UNITED STATES DISTRICT COURT FOR FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

NAAMJP (National Association for the

Advancement of Multijurisdiction Practice),

John F. O'Rourke, Alan Ellis, Donald Harris.

Plaintiffs,

Mn

George W. Bush, Alberto R. Gonzales, Hen. John W.

Bissell, Chief Judge for the United States District

Court for the District of New Jersey, Dennis M.

Cavanaugh, Joseph A. Greenway, Jr., Katharine S.

Hayden, Faith S. Hochberg, Jose L. Linares,

William J. Martini, Joel A. Pisano, Alfred M. Wolfin, ~

Hon. Consuelo B. Marshall, Chief Judge United States

District Court for the Central District of California,

Perey Anderson, Terry J. Hatter, Jr., Ronald S.W.

Lew, Nora M. Manella, Howard A. Matz, James S.

Otero, Dean D. Pregerson, George P. Schiavelli,

Christina A. Snyder, John F.. Walter.

February, 1995

STATEMENT OF MARVIN COMISKY

I, MARVIN COMISKY, am competent to testify, and

have personal knowledge of the subject matter of this

litigation, and if called as a witness would testify the

following:

70a

l. I was admitted to the Pennsylvania Bar in 1942 and

except for military service from late 1942 to the spring

of 1946,1 have been a practicing lawyer.

2. am a litigator with an appellate-practice specialty. I

was admitted to all Courts in Pennsylvania, various

Federal District Courts, Federal Courts of Appeal and

the U.S. Supreme Court. Attached as an Exhibit is a

copy of my resume.

3. My practice was in part practicing in states other

than Pennsylvania.

4. When I commenced practicing in Pennsylvania, each

judicial district had its own individual admission

requirement. This practice was still in place when I

became Chancellor of the Philadelphia Bar Association

in 1965.

5. Lawyers admitted to practice in Philadelphia, thus,

could not appear as practicing lawyers in any other

judicial district in Pennsylvania. They were required to

have their admission moved Pro Haec Vice or as

occurred in most instances, retain lawyers authorized to

practice in that individual county as co-counsel.

6. Thus, Philadelphia lawyers were unable to represent

fully and individually the client who retained them. In

all such instances when co-counsel was retained, fee

splitting occurred between counsel and co-counsel.

7. On behalf of the Philadelphia Bar Association with

the cooperation of the Pittsburgh Bar Association, as

Chancellor of the Philadelphia Bar Association, I filed a

Tla

petition with the Pennsylvania Supreme Court to

eliminate these intra-state barriers.

8. In 1965, the Pennsylvania Supreme Court granted

the petition without hearing and argument. It changed

the rules to eliminate the county barriers and issued an

Order declaring upon admission to the Pennsylvania

Supreme Court, a lawyer was authorized to practice in

all judicial districts and appellate courts in

Pennsylvania. Because of different pockets of

resistance in some of the judicial districts, it took about

five years for the barriers to-be fully eliminated. Today,

many young lawyers have no memory of these county

restrictions, and find these prior local restrictions

inconceivable.

9. Speaking for myself as a member of the bar

interested in the administration of justice process, I

have been a long-time advocate for a uniform federal

district court bar admission. See Comisky & Patterson,

The Case for a Federally Created Bar By rule Or By

Legislation, 55 Temple L.Q.945, 975 (1982) Quoting

from that article "Conclusion: the dynamic changes that

are now taking place in the practice of law, resulting in

the increasing trend towards multi-state law practice

and the growth of national and international law firms,

have caused ‘state imposed’ barriers to the modern

practice of law to become obsolete, inefficient,

expensive, and detrimental to the public interest".

9. I fully support the elimination of state imposed

barriers to the practice of law in the federal district

courts,

MARVIN COMISKY

72a

PLAINTIFFS' MOTION FOR PRELIMINARY

INJUNCTION

Exhibit O - SCIENTIFIC TESTS DEMONSTRATE

EXPERTS AND NOVICES ARE MORE

QUALIFIED TO JUDGE COMPETENCE THAN

LICENSING OFFICIALS. Attached is Klein, Sources

of Power (The MIT Press 1999) Chapter 10 The Power

to See the Invisible, supra, "Example 10.1 The

Instructors Who Couldn't Save Their Own Lives."

Dr. Klein demonstrates controlled tests established:

(i) nine out of ten experts were able to spot another

experienced expert;

(ii) five out of ten novices who finished an eight hour

course were able to spot an experienced expert; and

(iii) only three out of ten instructors (licensing officials)

who taught the novices, but who never actually

practiced, were able to spot an experienced expert.

Exhibit O by analogy explains why a Bombay India

native who never went to law school can be judged

competent on the California bar exam by those who

have never practiced (See Exhibit N), and why the

Dean of Stanford Law School can be judged

incompetent by those who have never practiced. See

Exhibit M.

This Exhibit O proof of the blind leading the blind

correlates (almost 100%) with Exhibit D - the Rand

Corporation studies that admit, beyond any doubt, the

73a

eight-question entirely subjective test given to

experienced attorneys is less than .48% reliable.

This cumulative proof confirms the wisdom of the ABA

MJP Commission recommendation that experienced

attorneys do not need to take another bar exam and

should be provided reciprocal admission on motion.

Last but not least, these Exhibits demonstrate the least.

reliable measurement of competence is to permit novice

State licensing officials to judge the competence of

experienced federal practitioners.

Dated: December 20, 2005

Respectfully submitted,

JOSEPH ROBERT GIANNINI

Counsel for Plaintiffs

74a

Sources of Power

How People Make Decisions

Gary Klein

The MIT Press

Cambridge, Massachusetts

London, England

We played these videotapes to three audiences: ten

novices who had just finished an eight-flour CPR

course, ten CPR instructors who were experienced

teachers but had never performed CPR on an actual

victim, and ten paramedics who had used CPR many

times. The study called for the participants to make a

series of judgments. The last one was perhaps the most

interesting. We asked each participant to imagine that

it was his or her own life on the line. They had to

identify one of six people in the videotapes who they

would want to do CPR on them.

The paramedics recognized expertise when they saw it.

Nine of the ten picked the actual paramedic. When

asked why, they could not point to any one thing. It was

the entire pattern of his behavior, the smoothness with

which he worked, that they liked. He secured to know

what he was doing.

The novices too generally chose the paramedic. He got

live of their ten votes. The instructors did not do as

well. The paramedic in the tape was not following the

rules they taught so carefully to their students. | is

wasn't carefully measuring where to put his hands, for

example. Only three of the instructors chose him to

save their lives.

75a

Civil Action No.

05-ev- 5081 TON

UNITED STATES DISTRICT COURT FOR

FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

NAAMJP (National Association for the -

Advancement of Multijurisdiction Practice), John F.

O’Rourke, Alan Ellis, Donald Harris.

Plaintiffs,

V.

George W. Bush, Alberto R. Gonzales, Hon. John W.

Bissell, Chief Judge for the United States District

Court for the District of New Jersey, Dennis M.

Cavanaugh, Joseph A. Greenway, Jr., Katharine S.

Hayden, Faith S. Hochberg, Jose L. Linares, William J.

Martini, Joel A. Pisano, Alfred M. Wolfin, Hon.

Consuelo B. Marshall, Chief Judge of the United States

District Court for the Central District of California,

Percy Anderson, Terry J. Hatter, Jr., Ronald S.W.

Lew, Nora M. Manella, Howard A. Matz, James S.

Otero, Dean D. Pregerson, George P. Schiavelli,

Christina A. Snyder, John F’. Walter, United States

Department of Justice, Anthony J. Scirica, Chief Judge

of the Third Circuit Judicial Council, Dolores K.

Sloviter, Jane R. Roth, Theodore A. McKee, Marjorie

QO. Rendell, James T. Giles, Thomas Vaniske, Sue L.

Robinson, Doretta W. Ambrose, Garrett Brown Jr.,

Douglas B. Ginsburg, Chief Judge of the District of

Columbia Judicial Council, David B. Sentelle, Karen

Lecraft Henderson, A. Raymond Randolph, Judith W.

Rogers, David S. Tatel, Merrick B. Garland, Thomas F.

76a

Hogan, Emmet G. Sullivan, James Robertson, Richard

W. Roberts, Ellen Sega! Huvelle, Reggie B. Walton

FIRST AMENDED COMPLAINT - CLASS

ACTION - DECLARATORY & INJUNCTIVE

RELIEF FRCP 23(b)(2)

Introduction

1. The Constitution under Article I § 8&8

authorizes Congress to enact the laws necessary and

proper for carrying into execution its enumerated

powers. Congress, in the Rules Enabling Act, 28 U.S.C.

§ 2071 et. seqg., authorizes the District Courts to

prescribe rules of practice and procedure for the

conduct of their business. 28 U.S.C. § 2071(a). Congress,

however, spelled out that power to prescribe rules of

practice and procedure to the following narrow

conditions. First, such “local” rules shall be consistent

with Acts of Congress. Ibid. Second, such “local” rules

shall be consistent with the national rules of practice

and procedure. Ibid. Third, such “local” rules shall not

abridge, modify, or enlarge any substantive right. 28

U.S.C. § 2072(b). Fourth, all laws in conflict with such

national rules shall be of no further force or effect. Ibid.

2. Plaintiffs herein challenge, on its face and as

applied, on behalf of themselves and others similarly

situated in a representative capacity, the “local’ rules of

approximately 55 federal district courts that

categorically, regardless of individual merit or federal

practice experience, deny general bar admission

privileges to attorneys licensed in a sister-state other

than the one in which the federal district court sits.

(picture***)

78a

3. Plaintiffs assert these challenged “local” rules

are: ‘i) inconsistent with numerous Acts of Congress,

including the Bill of Rights; (ji) not consistent with the

national rules of practice and procedure, including

FRAP 46 and Supreme Court Rule 5; and (iii) abridge,

modify, and enlarge numerous federal substantive

rights. Plaintiffs request these challenged “local” rules

be declared a nullity and of no force and effect.

Plaintiffs further allege these challenged “local” rules

are overbroad, constitute facial unlawful viewpoint

discrimination, implicate and violate the First

Amendment rights to speech, advocacy, expressive

association, petition for redress of grievances, the

Supremacy Clause, the constitutional right to travel,

the constitutional norm of comity, the 6° Amendment

right to counsel, and the 5'° Amendment rights to’due

process and equal protection. Plaintiffs request

preliminary and permanent injunction barring their

enforcement.

Jurisdiction

4, Jurisdiction is provided by 28 U.S.C. § 1331 for

cases arising under the Constitution and laws of the

United States, and 28 U.S.C. § 1348(a)(3) deprivation of

privileges and immunities. |

Parties

5. Plaintiffs are the NAAMJP (National

Association for the Advancement of Multijurisdiction

Practice), a nonprofit corporation, incorporated in

California with offices in Los Angeles County, doing

business nationally. The NAAM.JP is a nonprofit public

benefit corporation whose primary purpose is to bring

792

to life the ABA MJP Commission Recommendations.

Plaintiff NAAMJP sues on its own behalf, and the

individual and collective members thereof. Plaintiff

John O’Rourke is an individual and an award-winning

patent attorney licensed in Pennsylvania and residing

in Southern California. Plaintiff O’Rourke’s patent

property practice, similarly to others in the intellectual

property field, transcends numerous state lines and is

regional and national in scope. Plaintiff Alan Ellis is a

national federal criminal defense specialist with offices

in Philadelphia, Pennsylvania, and California. Plaintiff

is nationally known and recognized as one of the leading

experts in federal criminal trial practice. Plaintiff

Donald Harris is an attorney with a national practice

specializing in bankruptcy law with offices in Ohio.

Plaintiff Donald Harris is recognized as an expert in

bankruptcy practice and procedure. Plaintiffs John

O’Rourke, Alan Ellis, and Donald Harris bring this

lawsuit as individuals and also as members of

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