Opposition Brief — Southern Christian Leadership Conference v. Supreme Court of Louisiana

No. 01-360 [Supreme Cane.

FILE!

In The SEP 26 2008

Supreme Court ci the Unit States seoun. |

SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE,

LOUISIANA CHAPTER; ST. JAMES CITIZENS FOR JOBS

AND THE ENVIRONMENT; CALCASIEU LEAGUE FOR

ENVIRONMENTAL ACTION NOW; HOLY CROSS

NEIGHBORHOOD ASSOCIATION; FISHERMEN’S AND

CONCERNED CITIZENS’ ASSOCIATION OF

PLAQUEMINES PARISH; ST. THOMAS RESIDENTS

COUNCIL; LOUISIANA ENVIRONMENTAL ACTION

NETWORK; LOUISIANA COMMUNITIES UNITED;

LOUISIANA ASSOCIATION OF COMMUNITY

ORGANIZATIONS FOR REFORM NOW; NORTH

BATON ROUGE ENVIRONMENTAL ASSOCIATION;

ROBERT KUEHN; CHRISTOPHER GOBERT; ELIZABETH

E. TEEL; JANE JOHNSON; WILLIAM P. QUIGLEY;

TULANE ENVIRONMENTAL LAW SOCIETY; TULANE

UNIVERSITY GRADUATE AND PROFESSIONAL

STUDENT ASSOCIATION; INGA HAAGENSON CAUSEY,

CAROLYN DELIZIA, AND DANA HANAMAN,

y Petitioners,

THE SUPREME COURT OF THE STATE OF LOUISIANA,

Respondent.

*

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

*

RESPONDENT’S OPPOSITION

¢

MicHaet H. Rusin CurisTINA B. Peck

(La. 10833) (La. 14032)

Counsel of Record Roepet, Parsons, Kocn, Frost,

McG.LINCHEY STAFFORD BaALHorF & McCoL. ister

9th Floor, 8440 Jefferson Highway,

One American Piace Suite 301

Baton Rouge, Louisiana Baton Rouge, Louisiana

70825 70809

Phone: 225-383-9000 Phone: 225-929-7033

Fax: 225-343-3076 Fax: 225-928-4925

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

1. Did the district court properly dismiss the Petitioners’

suit for failure to state a claim when:

A. The Louisiana Supreme Court rule about

which Petitioners complain contains no

restriction on the right of any attorney to

solicit and represent public interest pro bono

clients;

B. The Louisiana Supreme Court rule about

which Petitioners complain does not pro-

hibit students from informing individuals

or organizations about their legal rights or

from acting as law clerks in cases handled

by licensed attorneys;

C. The Louisiana Supreme Court rule about

which Petitioners complain does not pro-

hibit organizations from informing their

members about their legal rights or from

referring their members to licensed attor-

neys;

D. There is no right of non-lawyers to repre-

sent third parties in court, and no individ-

ual or organization has a right to an

attorney in a civil case;

E. The Louisiana Supreme Court rule about

which Petitioners complain contains no

restriction on the right of any licensed attor-

ney to practice law; and

F. The Louisiana Supreme Court rule about

which Petitioners complain contains no

restriction on any licensed attorney’s repre-

sentation of any clients.

ii

PARTIES TO THE PROCEEDING

Parties Plaintiff:

Southern Christian Leadership Conference,

Louisiana Chapter

St. James Citizens for Jobs and the Environment

Calcasieu League for Environmental Action Now

Holy Cross Neighborhood Association

Fishermen’s and Concerned Citizens’ Association of

Plaquemines Parish

St. Thomas Residents Council

Louisiana Environmental Action Network

Louisiana Association of Community Organizations for

Reform Now

North Baton Rouge Environmental Association

Louisiana Communities United

Robert Kuehn

Christopher Gobert

Elizabeth E. Teel

Jane Johnson "

William P. Quigley

Tulane Environmental Law Society

Tulane University Graduate and Professional

Student Association

Inga Haagenson Causey

Carolyn Delizia

Dana Hanaman

Parties Plaintiff below Who Did Not Join in this Peti-

tion:

C. Russell H. Shearer

Amicus:

Amicus in the District Court:

Louisiana Appleseed

Clinical Legal Education Association

iii

PARTIES TO THE PROCEEDING - continued

Amicus in the Fifth Circuit:

Association of American Law Schools

American Association of University Professors

Clinical Legal Education Association

American Civil Liberties Union of Louisiana

League of Women Voters of Louisiana

Louisiana Appleseed

Gloria Roberts

James M. Klebba, Dean of Loyola University School

of Law

Edward F. Sherman, Dean of Tulane Law School

Defendant:

The Supreme Court of the State of Louisiana

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED...........cccccccessseeces i

PARTIES TO THE PROCEEDING .............--++: ii

TABLE OF AUTHORITIES .............ccceeeeesees v

STATEMENT OF THE CASE.............-20eeeeee- 1

PROCEEDINGS BELOW ..........ccccccscccsccesece 1

STATEMENT OF FACTS ........cscccccccccsscccees 1

pe PPT Pe PTT TeTTTTierrri rier rir iti 4

I. The facts of the case militate against the grant-

ing of the writ .............ceeceec cece eeeeeee +

II. The questions presented were not raised in the

COUITED TG i aoc vc cccesctnscsetassecvciaveses 7

III. The petition does not meet the normal criteria

for granting a writ of certiorari............... 7

A. Petitioners do not identify a conflict

between this ruling and any other case... 8

1. Alleged differences in this Court’s rul-

ings on “motive” analysis under differ-

ent portions of the First Amendment do

not provide a basis to grant a writ of

certiorari in this case ................. 8

2. Rule XX does not prohibit outreach or

informational efforts, and Petitioners’

reliance on cases involving the rights of

licensed lawyers is misplaced ......... 12

B. There is no issue of great importance here

that would justify granting the writ of cer-

tiorari ...... pidwekde sekebiea nse ddesene ates 13

se ket 2 | Serer TTP rr re Perr rer res 14

Vv

TABLE OF AUTHORITIES

Page

Cases

Andrews v. Bechtel Power Corp., 780 F.2d 124 (1st

Cir. 1985), cert. denied, 476 U.S. 1172 (1986) ........ 5

Bender v. Williamsport Area School Dist., 475 U.S.

OR erent rrr rT eer Tyre Te 6

Board of Education v. Pico, 457 U.S. 853 (1982) ....... 1

Church of the Lukumi Babula Aye v. City of Hialeah,

BOS UD. Fe Ree 6 a x Sass cccccbeasedsseasieecas 9, 10

Cinel v. Connick, 15 F.3d 1338 (5th Cir.), cert. denied,

0 BR Re Re | pore y rrr Ter ery rT errr Tiree 3

Edelman v. Jordan, 415 U.S. 651 (1974) ................ 6

Edwards v. Aguillard, 482 U.S. 578 (1987) .......... 9, 10

Florida Dept. of State v. Treasure Salvors, Inc., 458 |

GAs Se COE os hang deden bakes) sd nadacakeriaeeaeee 6

Grosjean v. American Press Co., Inc., 297 U.S. 233

PU 6 eae cides ead deen hdes ae bade ais areas 9, 10

Hobbs v. Blackburn, 752 F.2d 1079 (5th Cir.), cert.

denied, 474 DE. GIG. CORN) sa sca atitacassvedes beats -

In re Primus, 436 U.S. 412 (1978)...... pipdade dba 12

Kossick v. United Fruit Co., 365 U.S. 731 (1961)........ 1

Lemon v. Kurtzman, 403 U.S. 602 (1971)............... 9

Lewis w Canty, SIG UG. S63 (IPRS) oan cc cccecccvcneaee 6

Minneapolis Star & Tribune Co. v. Minnesota Com-

missioner of Revenue, 460 U.S. 575 (1983) ....9, 10, 11

vi

TABLE OF AUTHORITIES - Continued

Page

NAACP ov. Button, 371 U.S. 415 (1963)............... 12

Pecarsky v. Galaxiworld.com Ltd., 249 F.3d 167 (2d

CH. SRGSD i vccccccecdedeatseousdebexeedaewe 5

Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) ..9, 10

Shaw v. Murphy, 532 U.S. 223 (2001)................4. 8

Taylor v. Freeland & Kronz, 503 U.S. 638 (1992)........ 7

Turner Broadcasting System, Inc. v. Federal Commu-

nications Commission, 512 U.S. 622 (1994).......... 11

United States v. Gipson, 46 F.3d 472 (5th Cir. 1995) ..... 3

Youakim v. Miller, 425 U.S. 231 (1976)................. 7

STATUTES

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GE UBA. § Wee eo 08 6e600055000kes6eeseedtieeenetane 3

G2 UBA.. § BRO s sv vv cucsevs cdcbacadecetansseesenen 3

Ea. TU Send. Anes B TPB ii nec cdccdececedibackabets 5

Louisiana Supreme Court Rule XX................ 5, 12

United States Supreme Court Rule 10................ 7

STATEMENT OF THE CASE

PROCEEDINGS BELOW

The Petitioners filed this action in the United States

District Court for the Eastern District of Louisiana. There

was one additional party who neither joined in the appeal

to the United States Fifth Circuit Court nor sought relief

in this Petition.

The Louisiana Supreme Court filed a motion to dis-

miss the complaint for failure to state a claim as to which

relief can be granted. After a hearing, with extensive

briefing and oral argument, the district court granted the

motion to dismiss on July 29, 1999. Southern Christian

Leadership Conference v. Supreme Court of Louisiana

(“SCLC”), 61 F.Supp.2d 499 (E.D. La. 1999). (Petition for

Writ of Certiorari, Appendix B.)?

On May 29, 2001, the United States Fifth Circuit

Court of Appeals affirmed the dismissal. SCLC, 252 F.3d

781 (5th Cir. 2001), (App. B).

¢

STATEMENT OF FACTS

The “facts” considered on a motion to dismiss are the

allegations in the complaint. While there is a substantial

? C. Russell H. Shearer, a Plaintiff below, did not join in the

appeal to the Fifth Circuit. In the Complaint, R. 164, he is listed

as a party, but in the Petitioners’ Original Fifth Circuit brief he

no longer appears as a party.

2 The Appendix attached to the Petition (“Pet.”) will be

referred to as “App.”

3 Kossick v. United Fruit Co., 365 U.S. 731, 732 (1961).

dispute as to the accuracy of these allegations, at this

point in the case the only thing pertinent is the com-

plaint’s allegations and whether they state a claim. The

legal issues in the Petitioners’ application flow from the

following allegations.

The Petitioners are composed of four separate

groups; each asserted various causes of actions in the

district court. The groups are:

e Client Organizations, nine different organiza-

tions and one organization composed of

twenty separate groups;*

e Five Law Professors and clinical law instruc-

tors from two different Louisiana law schools

(Complaint 415, App. D, p. 85a);

e Three Law Students (Complaint 16, App. D,

p- 87a); and

e Two Student Organizations Which Do Not Rep-

resent Litigants In Court (Complaint

{16(a)-(b), App. D, p. 88a).

Noticeably absent as a party is the Tulane Environ-

mental Law Clinic, the organization that Petitioners

alleged was the object of the changes to Rule XX. Also

noticeably absent as a party is any law clinic program

associated with any of the other law schools in Louisiana.

Each of the groups of Petitioners alleged separate

causes of action in the district court. In addition, all

* Louisiana Communities United is described as a

“coalition of 20 community, church and union groups in the

Mississippi River Parishes of Ascension, Iberville, St. James,

East Baton Rouge, and St. Charles.” Complaint ¥ 13(j); App. D,

p. 85a.

Petitioners made broad-ranging claims that the amend-

ments to Rule XX amounted to “viewpoint discrimina-

tion” and discrimination based upon political views

(Complaint $130, 131; App. D, p. 134a).

The essence of the complaint is that the Tulane Envi-

ronmental Law Clinic had interpreted the former version

of Louisiana Supreme Court Rule XX (governing when

law students may appear as counsel in civil cases) as

permitting its non-lawyer students to represent organiza-

tions of any type in any legal proceeding. The complaint

assumes that the Tulane Environmental Law Clinic’s

reading of the former rule is the correct one and alleges

that, in light of that Clinic’s success in certain litigation,

the Louisiana Supreme Court altered the rule under polit-

ical pressure.

A number of the Petitioners’ claims were abandoned

in the appeal to the Fifth Circuit,> and in this Petition the

claims at issue have been limited further.®

5 Abandoned in the Fifth Circuit were claims concerning:

42 U.S.C. § 1983 and 1988; claims concerning the right to

petition the government for redress of grievances; claims of a

denial of equal protection and due process; all claims of

vagueness and overbreadth; all claims under the Louisiana

State Constitution; and all claims of Plaintiffs C. Russell H.

Shearer, Tulane Environmental Law Society and Tulane

Graduate and Professional Student Association. An issue not

briefed on appeal is considered abandoned. United States v.

Gipson, 46 F.3d 472, 475 (5th Cir. 1995); Cinel v. Connick, 15 F.3d

1338, 1345 (5th Cir.), cert. denied, 513 U.S. 868 (1994); Hobbs v.

Blackburn, 752 F.2d 1079, 1083 (5th Cir.), cert. denied, 474 U.S. 838

(1985).

6 The academic freedom claim appears to be limited solely

to the anti-solicitation claim (Petitioners’ fifth question

presented).

The complaint does not allege that the Louisiana

Supreme Court lacks the right to promulgate a rule con-

trolling the actions of non-lawyers who seek to serve in a

representative capacity in litigation; rather, it is the Peti-

tioners’ position that once a rule is established, it cannot

be altered without triggering a constitutional inquiry

(Petitioners’ Fifth Circuit Brief at p. 26). The Petitioners

conceded in the Fifth Circuit (Petitioners’ Fifth Circuit

Brief at pp. 21, 37) that, without a rule, no student could

represent others in litigation.

+

ARGUMENT

The petition for a writ of certiorari should be denied

because it raises questions not passed upon by either the

District Court or the Fifth Circuit Court of Appeals. In

addition, the questions presented by the Petitioners do

not meet the usual and customary requirements for grant-

ing a writ of certiorari, because Petitioners’ questions do

not present (1) a conflict between United States courts of

appeals, or (2) a conflict between a United States court of

appeals and a state court of last resort or between two

state courts of last resort, or (3) an important question of

federal law upon which the Supreme Court should, but

has not, ruled.

I. The facts of the case militate against the granting of

the writ.

There are five factors, clear from the record and the

Fifth Circuit’s opinion, that militate against the granting

of the writ.

First, nothing in the Louisiana Supreme Court’s Rule

XX affects in any way the right of licensed attorneys to

represent anyone — individual, association, corporation,

or otherwise - in any matter in any court. Rather, the rule

solely impacts non-lawyers who seek to represent others

before tribunals.” Petitioners’ contentions that amended

Rule XX somehow inhibits community outreach (Pet. pp.

26-27) overlooks the fact that nothing in the rule prohibits

any licensed lawyer, whether or not associated with a law

school clinic, from representing any person or entity or

providing outreach or information.

Second, Petitioners concede that there is no right for

non-lawyers to represent others in court,’ and the law is

clear that while individuals may appear pro se,? corpora-

tions, organizations, and business entities may not.!° Fur-

ther, it is undisputed that there is no right for Petitioners

to either demand or be provided counsel in civil cases.

Third, it is telling that although Petitioners contend

that the purported reason for the change in Rule XX was

7 The official Louisiana Supreme Court Commentary to

Rule XX explicitly states it “places no restrictions on the pro

bono representation of solicited clients by attorneys employed by

or retained by law schools or law clinics.” Commentary

following Rule XX Section 10, emphasis supplied.

8 See Pet. p. 2; SCLC, 61 FSupp.2d at 506.

9 28 U.S.C. § 1654; Andrews v. Bechtel Power Corp., 780 F.2d

124 (1st Cir. 1985), cert. denied, 476 U.S. 1172 (1986).

10 Pecarsky v. Galaxiworld.com Ltd., 249 F.3d 167 (2d Cir.

2001). Louisiana law explicitly states that only lawyers may

represent third parties in court. La. Rev. Stat. Ann. § 37:213.

11 See the cases cited and discussed in the district court’s

opinion, SCLC, 61 F.Supp.2d at 506-07.

to affect the Tulane Environmental Law Clinic,}2 the

Clinic is not a party to this case.

Fourth, although the Fifth Circuit discussed the

standing issue, it engaged in no specific analysis of each

set of plaintiffs’ claims and merely concluded that “at

least some of the Plaintiffs have standing to bring each

type of claim.”15 Thus, the particularized requirements of

standing for each of the four plaintiff groups have never

been specifically addressed and that matter would have

to be resolved by this Court, for standing is jurisdic-

tional.!4

Finally, as the Fifth Circuit noted, the Louisiana

Supreme Court has not asserted its Eleventh Amendment

Immunity below,}> but it still has the right to claim this

defense.!6

12 See Pet. pp. 4-6; SCLC, 252 F.3d at 794 (5th Cir. 2001).

13 SCLC, 252 F.3d at 789 (5th Cir. 2001).

14 Standing requirements are both jurisdictional and not

subject to waiver. Lewis v. Casey, 518 U.S. 343, 349 n.1 (1996). The

issue may be raised on appeal even though lack of standing was

not the basis of the dismissal below. Bender v. Williamsport Area

School Dist., 475 U.S. 534, 540-41 (1986).

1S SCLC, 252 F.3d at 783 n.2 (5th Cir. 2001).

16 “The fact that the State appeared and offered defenses on

the merits does not foreclose consideration of the Eleventh

Amendment issue; ‘the Eleventh Amendment defense

sufficiently partakes of the nature of a jurisdictional bar’ that it

may be raised at any point of the proceedings.” Florida Dept. of

State v. Treasure Salvors, Inc., 458 U.S. 670, 683 n.18 (1982);

Edelman v. Jordan, 415 U.S. 651, 678 (1974).

CANS LEI MICE ALE IEE IAS

Il. The questions presented were not raised in the

courts below.

The Petitioners’ assertions that the “Court should

clarify the circumstances under which courts are to con-

sider viewpoint suppressive motive” (Pet. p. 9) and that

the “Court should clarify how the First Amendment

unconstitutional conditions doctrine applies” (Pet. p. 19)

were not raised in either the district or appellate court.

“[O]rdinarily, this Court does not decide questions not

raised or resolved in the lower courts.” Taylor v. Freeland

& Kronz, 503 U.S. 638, 646 (1992), quoting with approval

from Youakim v. Miller, 425 U.S. 231, 231 (1976).

Although the Court in exceptional circumstances

may consider issues not raised in the lower courts, this is

not an exceptional situation. The case deals not with the

broad range of free speech issues but with the narrow

question of a court rule regulating non-lawyers who seek

to represent others. The petition for a writ of certiorari

should be denied because the Petitioners did not raise in

the courts below the issues they now ask this court to

address.

III. The petition does not meet the normal criteria for

granting a writ of certiorari.

United States Supreme Court Rule 10 provides that

the granting of a petition for a writ of certiorari is a

matter of judicial discretion and will be exercised only for

compelling reasons. Compelling reasons, under the Rule,

consist of (1) a conflict between two circuit courts; or (2) a

conflict between two state courts of last resort or between

one such court and a United States court of appeal; or (3)

an important question of federal law that has not been,

“but should be, settled by this Court.” None of these

criteria are present here.

A. Petitioners do not identify a conflict between

this ruling and any other case.

Petitioners do not identify a single ruling in a single

case that conflicts with the Fifth Circuit’s ruling. They do

not assert that any other case has held that students have

a right to represent others in civil proceedings.!”

1. Alleged differences in this Court’s rulings

on “motive” analysis under different por-

tions of the First Amendment do not pro-

vide a basis to grant a writ of certiorari in

this case.

Rather than pointing to any opinions that directly

conflict with the Fifth Circuit’s ruling below, the Peti-

tioners claim that this Court’s holdings “do not yield

clear-cut guidance” (Pet. p. 19) and have “given conflict-

ing signals” (Pet. p. 9) about when motive is to be consid-

ered in First Amendment cases. To try to create an issue

for their writ, the Petitioners expand their specific claims

about the purported infringement of the rights of

17 Earlier this year, this Court decided Shaw v. Murphy, 532

U.S. 223, 121 S.Ct. 1475 (2001). While Shaw concerned whether a

prisoner had the right to represent another prisoner, and while a

prisoner's constitutional rights are more limited than society at

large, this Court noted there was “no free standing right” to

give or receive legal advice. 121 S.Ct. at 1480 n.3.

teachers to teach through using students as lawyers, the

purported rights of organizations to perform “outreach”

culminating in court representation by non-lawyers, and

the purported infringement of the rights of non-lawyers

to solicit clients that the non-lawyers could represent in

court, into a generalized First Amendment claim. Once

this metamorphosis is complete, Petitioners then compare

their generalized claim to ones concerning the Free Exer-

cise Clause (Church of the Lukumi Babula Aye v. City of

Hialeah, 508 U.S. 520, 533 (1993)), the Establishment

Clause (Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 315

(2000); Edwards v. Aguillard, 482 U.S. 578, 585 (1987)), and

Freedom of the Press (Minneapolis Star & Tribune Co. v. ~

Minnesota Commissioner of Revenue, 460 U.S. 575, 579-80

(1983); Grosjean v. American Press Co., Inc., 297 U.S. 233,

250 (1936)).

It goes without saying that all First Amendment

claims are not subject to either the same analysis or the

same jurisprudence. Petitioners admit as much when they

state that the “Court has reached different conclusions

about the role of motive in its analysis of First Amend-

ment claims depending on the particular circumstances

presented” (Pet. p. 14). Of course, each case is decided

upon its facts, but that adds nothing to the Petitioners’

position. What Petitioners overlook is that an allegation

of a violation of a specific clause of the First Amendment

is interpreted pursuant to the jurisprudence concerning

that clause.

Petitioners’ claims against the Louisiana Supreme

Court have nothing to do with the establishment clause;

therefore, Petitioners’ reference to this Court’s analysis in

Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), and its

10

discussion of “purpose”? has no relevance to the issues

in the instant case. Likewise, whether the Court looked to

motive in deciding other establishment clause cases such

as Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000),

or Edwards v. Aguillard, 482 U.S. 578, 585 (1987) is irrele-

vant here. Neither case concerned viewpoint discrimina-

tion nor was decided upon free speech grounds.

The Petitioners’ discussion of Church of the Lukumi

Babula Aye v. City of Hialeah, 508 U.S. 520, 533 (1993),

which concerned the free exercise of religion, not free

speech,!9 avails them nothing, for the instant case does

not deal with religion.

The Petitioners’ position is not augmented by their

reliance on two cases striking down special taxes on the

press: Minneapolis Star?° and Grosjean.2! The instant case

has nothing to do with freedom of the press. Morever,

Minneapolis Star discussed Grosjean, pointed out that “our

18 “The Court has applied a three-pronged test to

determine whether legislation comports with the Establishment

Clause. First, the legislature must have adopted the law with a

secular purpose. Second, the statute’s principal or primary

effect must be one that neither advances nor inhibits religion.

Third, the statute must not result in an excessive entanglement

of government with religion.” Aguillard, 482 U.S. at 582-83.

19 It also should be noted that the Petitioners’ reliance on

Church of Lukumi Babalu Aye is undermined by its reference not

to the Court’s holding but rather to a statement in a concurring

opinion. Pet. p. 13.

20 Minneapolis Star & Tribune Co. v. Minnesota Commissioner

of Revenue, 460 U.S. 575 (1983).

21 Grosjean v. American Press Co., Inc., 297 U.S. 233 (1936).

11

subsequent cases have not been consistent in their read-

ing of Grosjean,” and held that the issue before it could

not be resolved by reliance upon Grosjean but rather must

be analyzed “anew.” 460 U.S. at 580. Minneapolis Star's

concluding paragraph undermines any claim that motive

was the key to its holding: “We need not and do not

impugn the motives of the Minnesota legislature in pass-

ing the ink and paper tax. Illicit legislative intent is not

the sine qua non of a violation of the First Amendment.”

460 U.S. at 592.

Petitioners’ citation of Board of Education v. Pico, 457

U.S. 853 (1982) to support their position that “this Court

has not articulated a standard for when motive inquiry is

appropriate” (Pet. p. 10) has no relevance here. Pico con-

cerned the removal of books from a school library - a

denial of “the right to receive ideas.” 457 U.S. at 867. As

the next section of this brief demonstrates, the rule at

issue here does not deny access to any idea in any man-

ner.

The jurisprudence is clear; each type of claim under

differing clauses of the First Amendment is subject to its

own analysis. “It would be error to conclude, however,

that the First Amendment mandates strict scrutiny for ~

any speech regulation that applies to one medium (or a

subset thereof) but not others.” Turner Broadcasting Sys-

tem, Inc. v. Federal Communications Commission, 512 U.S.

622, 660 (1994). In this case, involving rion-lawyers who

seek to represent others in court, Petitioners’ attempt to

create a generalized conflict in “motive” analysis, a point

not raised below, does not create a basis for granting a

writ of certiorari.

12

2. Rule XX does not prohibit outreach or infor-

mational efforts, and Petitioners’ reliance

on cases involving the rights of licensed

lawyers is misplaced.

Petitioners’ reliance on NAACP v. Button, 371 U.S. 415

(1963) and In re Primus, 436 U.S. 412 (1978) is misplaced.

Button involved regulation of the practice of law by law-

yers. This Court held that the solicitation ban on lawyers

and organizations could not be constitutionally applied;

the direct harm was to attorneys and those who referred

organizations and members to attorneys. Primus involved

a lawyer who had received a private reprimand for advis-

ing an organization’s members of their legal rights. Nei-

ther case contains the slightest intimation that its

holdings relate to non-lawyers who seek to represent

others in court.

There is nothing in either Button or Primus that is

inconsistent with Rule XX or the Fifth Circuit’s holding.

Nothing in Rule XX prevents the client organizations

from informing their members about the law. Nothing in

Rule XX prohibits any licensed lawyer from handling any

case before or after an organization or its members have

been informed of their rights, whether by the organiza-

tion or by students. As the Fifth Circuit held, “Rule XX

does not prevent the clinics or their members from engag-

ing in outreach, or even from contacting particular cli-

ents, advising them of their rights, and offering and then

proceeding to represent those clients. The rule only pro-

hibits the non-lawyer student members of the clinics from

representing as attorneys any party the clinic has so solic-

ited.” SCLC, 252 F.3d at 789.

13

There is no “solicitation” or speech issue here that is

appropriate for review.

B. There is no issue of great importance here that

would justify granting the writ of certiorari.

Petitioners do not assert that the questions here are

of great importance; rather, Petitioners contend that the

Court “should clarify the circumstances under which

courts must consider viewpoint suppressive motive” and

that this Court “has not articulated a standard when

motive inquiry is appropriate.”

The four groups of Petitioners’ ultimate claim here is

that their purported “rights” can be vindicated only by

allowing non-lawyers to represent others in a court of

law. Under their theory, only by permitting students to

handle litigation for organizations can the alleged First

Amendment issues be resolved, even though the Rule at

issue contains no prohibition whatsoever on licensed

attorneys handling litigation. Petitioners’ issue is not one

of great importance, and Petitioners’ focus on a single

line in the Fifth Circuit’s opinion - that the “jurispru-

dence” is “less than clear” (252 F.3d at 792) — does not

create a compelling reason for the Court to grant a writ of

certiorari, particularly when there is no circuit split or

split between federal and state courts.

+

14

CONCLUSION

The petition for writ of certiorari should be denied

because: (1) the issues concerning the clarity of the

Supreme Court's jurisprudence were not raised in the

lower courts; and (2) because the Petitioners do not meet

any of the usual and customary criteria for a writ of

certiorari.

Respectfully submitted,

Micuaet H. Rusiw

(La. Bar No. 10833)

Counsel of Record

McGuINCHEY STAFFORD

A Professional Limited

Liability Company

9th Floor, One American Place

Baton Rouge, Louisiana 70825

Phone: 225-383-9000

Fax: 225-343-3076

Curistina B. Peck

(La. Bar No. 14302)

Roepe, Parsons, Kocu, Frost,

BatHorr & McCo.uisTer

8440 Jefferson Highway, Suite 301

Baton Rouge, Louisiana 70809

Phone: 225-929-7033

Fax: 225-928-4925