Reply Brief — Parker v. Oregon State Board of Bar Examiners

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No. 92-1449 [ace ri

—..

Ju the Supreme Court of the Anited States

OcToBER TERM, 1992

RoBerRT ROOSEVELT PARKER, JR.,

Petitioner,

V.

THE OrEGON STATE BoArD Of Bar EXAMINERS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF OREGON

REPLY BRIEF FOR PETITIONER

JosePpH A. BRODERICK

1917 South Lake Shore Drive

Chapel Hill, N. C. 27514

(919) 929-7049

Attorney for Petitioner

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TABLE OF AUTHORITIES

U. S. Cases:

Boykin v. Alabama, 395 U.S. 238 (1969). ....

Cardinale v. Louisiana, 394 U.S. 439 (1969). .......

District of Columbia Court of Appeals v. Feldman,

ie Wie UE CNIS 5 5 Svc ces Uv neuncens

Hathorn v. Lovorn, 457 U.S. 255 (1982)... ..

Herndon v. Georgia, 295 U.S. 441 (1935). ...

Konigsberg v. State Bar #2, 366 U.S. 36 (1961). ....

Law Students Research Council v. Wadmond,

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Napue v. Illinois, 360 U.S. 264 (1959). ......

Raley v. Ohio, 360 U.S. 423 (1959). ......0.0.0005.

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Speiser v. Randall, 357 U.S. 513 (1958). ...........

Vachon v. New Hampshire, 414 U.S. 478 (1974)... ..

Wood v. Georgia, 450 U.S. 261 (1981). .....

Oregon Cases:

In re Parker, 314 Or. 143, P2d__—(1992).

In re Steffen, 279 Or. 313, 567 P2d 544 (1977)

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Page

2,4

Jn the Supreme Court of the United States

Octoser Term, 1992

No. 92-1449

Ropert Roosevett Parker, Jr.,

Petitioner,

Tue Orecon State Boarp OF Bar EXAMINers,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF OREGON

REPLY BRIEF FOR PETITIONER

1. Respondent incorrectly characterizes this Petition

as seeking reversal of a decision based on the record of the Board of Bar

Examiners (BBX) considered as a “trial court.” The unconstitutional

state action for which petitioner_seeks reversal and remand here is the

action of the Supreme Court of Oregon sitting de novo and denying

petitioner admission to the bar ona single ground proposed by the BBX.

Or, as respondent puts it, "Bar admissions cases are matters of original

jurisdiction with the state supreme court. .. ." Resp. Br., 5.

2. This Court is not asked to bog down here in a factual

morass to second-guess the Oregon Supreme Court, much less the

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BBX. Petitioner seeks only straightforward constitutional relief if this

Court grants his petition for certiorari: reversal and remand of the

decision of the Oregon Supreme Court for proceedings not inconsistent

with this Court's opinion herein.

3. The chief constitutional offense herein of the

Oregon Supreme Court as state actor is the highly unusual, perhaps

unique, imposition on petitioner of a burden of proving his "good moral

character" by "clear and convincing evidence". Neither petitioner nor,

apparently, respondent have yet discovered one other state in which this

drastic exclusionary standard is imposed.

4. Petitioner also asks this Court to consider whether

existing constitutional cases justify even the more familiar imposition

of a simple "preponderance" burden of proof on a bar applicant and on

an attorney under Bar charges (in Oregon law the two are treated alike,

cf. No. 8, below). This point is not adequately answered by citing, as

respondent does , Konigsberg v. State Bar #2, 366 U.S. 36 (1961). In

fact, respondent's brief echoes petitioner's reminder that the later Law

Students Research Council v. Wadmond, 401 U.S. 154 (1971) ques-

tioned placing the burden of proof on a bar applicant.

The underlying rationale of Speiser v. Randall, 357

U.S. 513 (1958) cries out for constitutional protection from any burden

of proof standard--even a simple "preponderance"-- that is applied with

the breadth the Oregon Supreme Court uses here. In this case (In Re

Parker, Pet. App. 3 at 39a) the Oregon Supreme Court expressly held

that "disposition of the case is made on the impersonation issue". The

Court totally disregarded ("we do not reach. . .") other issues and

charges. Moreover, in face of "conflicting testimony" (Id., at 39a) with

respect to the impersonation issue the Court held that the testimony of

one witness "Ms. Thomas is credible and the impersonating conversa-

tion that she recounts took place." (Id. at 49a). At this point the Court

extended petitioner's burden of proof to extend to individual contested

issues of fact: "It follows that applicant cannot prevail on this point [or

in his case which the point decides], because it was his burden to

convince us that the conversation did not occur as she recounted it." (Id.

at 49a). Of course, under the applicable Oregon rule applicant's burden

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was to "convince us" by "clear and convincing evidence." The further

point made here is that even if this Court were to permit a simple

preponderance burden of proof rule in bar admission cases, it should

strike down such a rule when it is applied to every individual discrete

determination of fact, especially one that is made determinative of

denial of admission to the bar. Surely such an application of any burden

of proof rule violates Due Process.

5. Respondent dispenses this Court from any concern

with Speiser v. Randall, 357 U.S. 513 (1958) because, he incorrectly

alleges, "No inhibition of free speech is implicated in Petitioner's case.

. . ." Petitioner's express argument that free speech inhibition is

implicated in his case appears at p. 19 of his petition.

6. There is a revealing concession at p. 11 of

respondent's brief: "When evidence is in dispute or credibility of

witnesses is in question, allocation of the burden of proof and the

quantum of evidence required may, in a given case, affect the moral

character and fitness evaluation." Respondent's counsel of record then

contributes an astounding "reassurance" to this Court: "In this case,

however, there was ample evidence, much of it undisputed, supporting

a conclusion adverse to Petitioner regardless of who had the burden of

proofand regardless of the quantum of evidence required.” Respondent's

counsel then adds: "This is further reason why Petitioner's claims are

not appropriate candidates for review by this Court." (Id. at 11).

Recalling (see No. 4, par. 2, above) that the Oregon Supreme Court

herein declined to value any of this evidence except impersonation in

the de novo proceeding now before this Court, this suggestion fairly

"shocks the conscience"-- even more than respondent's parading much

of this rejected evidence in his so-called "Factual History" (Resp. Br.,

p. 1). One can hardly visualize a prosecuting attorney in this posture

advising this Court: "No need to waste time by reviewing for any

violation of Due Process, we have plenty more evidence 'much of it

undisputed.’ Trust me."

7. The State Bar brief filed for respondent states that

"existing case law rejects... acontention" that "requiring proof by clear

and convincing evidence violates due process of law." (Resp. Br., 8) It

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cites no such cases. So far as counsel for petitioner has been able to

learn--there are no such cases. (See Par. 3, above.)

8. Not once, but twice (at pp. 4 and 7), Respondent's

brief makes the same clearly incorrect and prejudicial statement: That

in his Petition for Reconsideration petitioner raised "only one" consti-

tutional issue, the Due Process Clause argument concerning burden of

proof. In fact, in his Petition for Reconsideration (Pet. App. 4, pp. 57a

and 63a) Petitioner calls the Oregon Supreme Court's attention to In Re

Steffen (Pet. App. 7, pp. 89a-96a), and to the fact that the present

decision must be changed or face constitutional reversal--clearly on

Equal Protection grounds-- because the two cases, Steffen and Parker,

he argues, are "indistinguishable". There is no dispute that Oregon

Statute ORS 9.480(1) cited in Steffen (at Pet., 93a) and Oregon Statute

ORS 9.527(1) (at Pet. App. 1A, p. 7a) are identical. They establish that

under Oregon law disciplinary conduct for a lawyer is measured by the

same standards as if he were applying for admission to the bar.

9. -By camouflaging petitioner's Equal Protection

claim Respondent would put at rest the clearly evident issue of race that

has dogged the Parker proceeding from its inception. Petitioner

Parker's Petition for Reconsideration, at the place cited above (Pet.

App. 4, p. 63a) highlighted the race issue: "Reconsideration is neces-

sary to eradicate the false impression that the only difference between

Parker and Steffen is their race."

Earlier indications of a racial factor in this proceeding

were cited at p. 13 of the Petition. There is some evidence that a

relentless pursuit of petitioner had political origins (see Pet. App. 6,

77a-79a). Associate Justice Peterson of the Oregon Supreme Court, the

head of the Oregon Supreme Court Task Force on Racial/Ethnic Issues

in the Judicial System, had sat on reviews of the Parker case. His

comments, cited in the Petition at p. 13,, were made after some months

of hearings (which began shortly before the Supreme Court decision in

In Re Parker (Pet. App. 3). Other comments (not by Justice Peterson)

cited in the Oregon State Bar Bulletin article (cited at Pet., 13) pointed

to the courts: "Asking the system to change without including the

judges is like asking someone who is depressed to just cheer up." The

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commenter added that "Bias is usually unwitting.” (Id. at 12-13). An

unwitting adverse ethnical bias was conceded by even some of

petitioner's supporters. (Id. at 10). One lawyer, friendlier than most,

is sadly reported as saying to Petitioner: "The trouble with you Bob is

that you think you are equal.” All this points to the likely distortions

in putting a burden of proof of good moral character on bar applicants

of diverse ethnic origins-- especially with a requirement of proof by

"clear and convincing evidence.”

10. JURISDICTION. The postulate for jurisdiction

here is, as stated in the Petition, that there was no independent and

adequate state ground upon which to rest the decision herein of the

Oregon Supreme Court and that the questions raised on this petition for

certiorari were properly presented.

No question seems involved with respect to indepen-

dent and adequate state ground. The Supreme Court cases listed below

adequately support jurisdiction where the questions were presented at

a motion for rehearing or, as here, on a Petition for Reconsideration

which was "considered" by the Oregon Supreme Court. See Pet., App.

4A: "The court has considered the Petition for Reconsideration and

orders that it be denied”.

The Petition for Reconsideration adequately presented

issues of Due Process of Law and Equal Protection of the Laws (see No.

8, above) on September 22, 1992 and the Oregon Supreme Court

"considered" these claims until November 24, 1992, when it elected not

to afford a forum to these federal issues in th ; case:

The Jurisdiction Cases:

Boykin v. Alabama, 395 U.S. 238 (1969);

Cardinale v. Louisiana, 394 U.S. 439 (1969);

District of Columbia Court of Appeais v. Feldman,

460 U.S. 462 (1983);

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Hathorn v. Lovorn, 457 U.S. 255 (1982);

Herndon v. Georgia, 295 U.S. 441 (1935);

Napue v. Illinois, 360 U.S. 264 (1959);

Raley v. Ohio, 360 U.S. 423 (1959);

Vachon v. New Hampshire, 414 U.S. 478 (1974);

Wood v. Georgia, 450 U.S. 261 (1981).

Of particular significance is the case of Wood v.

Georgia, 450 U.S. 261 (1981) in which this Court found there was

ample support for a remand in the interests of justice, citing 28 U.S.C.

#2106 "authorizing this Court to require such further proceedings to be

had as may be just under the circumstances."

The entire procedure of seeking a petition for certiorari

is, of course, instinct with the element of discretion in the Supreme

Court. If the Court, in its discretion, finds merit in the constitutional

elements of this Petition, as petitioner hopes that it will, Wood makes

ciear that the Court will not allow a state court to manipulate a non-

decision of constitutional claims by this Court. A state court which has

been apprised of constitutional claims by use of its established proce-

dure (here a Petition for Reconsideration) may not foreclose the

Supreme Court's hearing of those constitutional claims.

CONCLUSION

Anoiher of the cases cited above--- District of Colum-

bia Court of Appeals v. Feldman, 460 U.S. 462 (1983)---points out (at

482-3, n. 16, where most of the relevant cases are gathered) that

"[O]rders of a state court relating to the admission, discipline, and

disbarment of members of its bar may be reviewed only by the Supreme

Court on certiorari to the state court, and not by means of an original

action in a lower federal court." Hence, there is no value in respondent's

argument (Resp. Br., 8) that absence of traditional hallmarks of "cert

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granted" such as conflict of circuits is fatal. And the scarcity (if not

nonexistence, see No. 3, above) of other states with "clear and convinc-

ing evidence" burdens of proof in bar cases explains the unavailability

of state decisions.

The Petition for certiorari should be granted.

Respectfully submitted,

Joseph A. Broderick

Attorney for Petitioner

1917 South Lake Shore Drive

Chapel Hill, N.C. 27514

May, 1993