Petition for Writ of Certiorari — Gilchrist v. Karman

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Jn the Supreme Court of the United States

DAVID GILCHRIST

Petitioner

VS.

KIRK V. KARMAN, husband, NANCY ROBINSON, wife;

NICHOLAS WALLWORK, husband, ALICE WALLWORK,

wife; JACQUELINE N. SCHESNOL, a single woman

Respondents

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

DAVID GILCHRIST

210 Hauoli Street

Wailuku, Hawaii USA 96793

(808) 986-0908

QUESTIONS PRESENTED FOR REVIEW

Did the trial court err in denying Petitioner’s motion for

summary judgment under the ex post facto and Due

Process clauses?

May lower courts rely on unpublished case law, to the

exclusion of Constitutional rvles of law, acts of

Congress, and published decisions of this Court?

Do federal judges ever abstain in favor of patently

unconstitutional state action’?

Should the trial judge have been recused?

Does Arizona’s immunity statute violate the Equal

Protection Clause?

TABLE OF CONTENTS

BASIS FOR JURISDICTION ......-.--0-- +e eee eees |

CONSTITUTIONAL PROVISIONS AND STATUTES .. |

STATEMENT OF THECASE ..........--++++5> RS

1, ER. 1.15, coree IGG, 2 onc cove ssvewerseess 3

9. E.R. 1.15, citer TORR. cs wis ee te eioens 4

ARGUMENT . ....400005 55 40 eee ae eee 6

1. Did the trial court err in denying Plaintiff's motion for

summary judgment under the ex post facto and Due

Process ClaUSES? .. 0. cece wees es eeneeeness 6

A. The ex post facto clause. .......-- +05 eee ees 6

B. The Due Process clause. ........---++-++55 10

ra May lower courts rely on unpublished case law, to the

exclusion of Constitutional rules of law, acts of

Congress, and published decisions of this Court?

eee e's eey ole a ace en eee 13

A. Unpublished Ninth Circuit decisions. ....... 14

B. Unpublished District Court decisions. ....... 14

3. Do federal judges ever abstain in favor of patently

unconstitutional state action? ...........--- <a

4. Should the trial judge have been recused? ....... 20

a Does Arizona’s immunity statute violate the Equal

Protection. Clause? ..........s0ccvcecesesveses 23

CONCLUSION ...sc00cncs0 nese eee ree eeeees 25

TABLE OF AUTHORITIES

Constitutional Provisions

Ex post facto clause, Article ],§ 10.............. 6-9, 20

Article VI, § 3, oath of office ................... 16

Due Process clause, Fourteenth Amendment........ 10-11

Statutes

ee I

hoy BG a kes bdvc os decd svcucecnce I

I OE yu cub ks New das bee abcd cocvsccanecn l

oak vb Co do hone b oe vhvkccne I

CE iN ae en |

ey ia os ooo uk chek veccccne I

A ae 16

PO IE WOM vce vn cc cnc cu cccccne 14

Bom. t.85, mure 42, AnzRSCt.............. 3, 43,27

Me CCN) AmeR Set ................... 19, n. 13

lio ye tte 3 6 Si a 19, n- 13

Rule 54(1), Ariz.R.S.Ct. ...... PEES ea 23-25

ill

Cases

Busic v. United States, 446 U.S. 398 (1980) ...-------- 12

Gina v. Texas, 529 U.S. 513 (2000) ......----+--- 7-9

Gibson vy. Berryhill, 411 U.S. 564, 577-79 (1973) .....-- 20

Hirsh v. Justices of Supreme Court of California, 67 F.3d 708,

713-15 (9th Cir. 1995) ... 0... cee cece reece eeenees 20

Huffman v. Pursue, 420 U.S. 592, 611 (1969) .........- 17

In re Hoover, 155 Ariz. 192, 745 P.2d 939 ‘tt ee 12

In re Ruffalo, 390 U.S. 544 (1968) ....----+-+-+: 8-9, 12

In Re Wilson, 106 Ariz. 34, 470 P.2d 441, 442 (1970) . 9,12

Kern v. Levolor Lorentzen, Inc., 899 F.2d 772, 779 (9" Cir.

4 , Pee Ne as a ai aan ee acne Roe A 22

Lebbos v. Judges of Superior Court, 883 F.2d 810, 814 (9th

+ ao: Peeererrer re rere ere es 20

Liteky v. United States, 510 U.S. 540, 555 (1994)... . 21-22

Marbury v. Madison, | Cranch 137 (1803) 15, 19,21, 25-27

Martinez v. California, 444 U.S. 277, 284 (1980) .. 23, n. 19

Matter of Thalheim, 853 F.2d 383 (Sth Cir. 1988) ...... 12

Miller v. Florida, 482 U.S. 423, 430 (1987) ....---- Ree

Mitchum v. Foster, 407 U.S. 225'(1972) .............. 20

Moore v. Sims, 442 U.S. 415, 424 (1979) 2.0 .0...00.0... 17

McCulloch v. Maryland, 17 U.S. 316 (1819) ........... 7

Ogden v. Saunders, 12 Wheat. 213, 266 (1827) ... 7,17, 28

Ripplinger v. Collins, 868 F.2d 1043, 1056

ee ee erry ar me ca yu) 19

Shapero v. Kentucky Bar Ass'n., 486 U.S. 466 (1988) . 2,27

Solesbee v. Balkcom, 339 U.S. 9 (1950) .............. 10

Sycuan Band of Mission Indians v. Roache, 54 F.3d 535 (9th

Ct; SP os heen heb aes ee eee 19

U.S. ex. rel. Hochman v. Nackman, 145 F.3d 1069, 1076 (9""

Cas FO ssa dice eae ee eee ee 22

U.S. v. Brown, 72 F.3d 25 (5th Cir. 1995) ............. 12

United States v. Arzate-Nunez, 18 F.3d 730, 733 (9th

Ce ORO oo ok head ecc eee i eee 9

United States v. Fruit Growers Ex. Co., 279 U.S.

BOG REUSE hh heds oe dao ee ee 12

United States v. Wiliberger, 5 Wheat (18 U.S.)

POTRRED 866206 eee eee 12

Yniguez v. Mofford, 730 F.Supp. 309, 316

CA. FPP 6 vtrs hae oe eee ee 19

Other Authorities

Redeniies Wie GE i i eck ckant Peeks ae ener 6

Releveiies Ma. BB oo. is isc bak ee eke oreo eae 6

James Madison, 2 Farrand, The Records of the Federal

Convention Of 1787 .......cccceccvcvrveesses 18, n. 12

Justice John Paul Stevens, The Shakespeare Canon of

Statutory Construction, University of Pennsylvania Law

Review (v.140: no. 4, April 1992) ..............2 2 eee 8

PLEASE DON’T CITE THIS!, Alex Kozinski and Stephen

Reinhardt, California Lawyer, June 2000. ......... 14,n.9

Thomas Jefferson to George Hammond, 1792. ... 28,n. 22

Universal Declaration of Human Rights, Preamble and

* Astiobe 14,4 2 CIGSE) anv. ia dn cnc eus an eeweeeyvess ee 9

BASIS FOR JURISDICTION

This action arises under the Constitution of the United

States, and is brought pursuant to 42 U.S.C. § 1983. The

District Court had original jurisdiction over Petitioner's federal

question claims under 28 U.S.C. §§ 1331, 1343, and original

jurisdiction over Petitioner's diversity claims under 28 U.S.C.

§ 1332. The District Court entered its final judgment on

August 5, 2002. Petitioner filed his Notice of Appeal on

August 13, 2002. The Ninth Circuit had jurisdiction under 28

U.S.C. § 1291. The Ninth Circuit entered its judgment on June

17, 2003. This Court has jurisdiction to review the judgments

below under 28 U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS AND STATUTES

The Ex Post Facto Clause, Article 1, § 10, Constitution of the

United States.

The First Amendment of the Constitution of the United States.

The Due Process and Equal Protection Clauses of the

Fourteenth Amendment of the Constitution of the United

States.

42 U.S.C. § 1983.

E.R. 1.15, Rule 42, Ariz.R.S.Ct.

Rule 54(1), Ariz.R.S.Ct.

STATEMENT OF THE CASE

Plaintiff is a lawyer. In 1994, Plaintiff was practicing

law in Arizona, and entered a fee contract with a lien securing

payment. In 1994, Arizona had no written law barring liens in

fee contracts.

Lawyers possess specialized training that gives them

the power and temptation to manipulate the American justice

system for their own ends. Shapero v. Kentucky Bar Ass'n.,

486 U.S. 466, 489 (1988)(O'Connor, J., dissenting, joined by

Rehnquist, C.J., and Scalia, J.).

Defendants Karman Wallwork and Schesnol are three

of Arizona’s “bar counsel,” trusted to police the ethical

integrity of Arizona’s 15,000 active lawyers. In 1999

Defendants convicted Plaintiff of violating Arizona’s trust

account rule:

“By claiming a lien on the entire settlement, an

amount which was ten times the amount of your

fees, and preventing the distribution of any

portion of those funds, you violated E.R. 1.15.”

Appendix, p. 21, 27.

Defendants’ skipped the text and title of E.R. 1.15 for

a reason.

1. E.R. 1.15, cirea 1994.

In 1994, E.R. 1.15 had nothing to say about liens in fee

contracts. It read as follows:

E.R. 1.15 SAFEKEEPING PROPERTY.

(a) A lawyer shall hold property of clients or

third persons that is in a lawyer's possession in

connection with a representation separate from

the lawyer's own property. Funds shall be kept

in a separate account maintained in the State

where the lawyer's office is Situated, or

elsewhere with the consent of the client or third

person. Other property shall be identified as

such and appropriately safeguarded. Complete

records of such account funds and other

property shall be kept by the lawyer and shall

be preserved for a period of five years after

termination of the representation.

(b) Upon receiving funds or other property in

which a client or third person has an interest, a

lawyer shall promptly notify the client or third

person. Except as stated in this rule or

otherwise permitted by law or by agreement

with the client, a lawyer shall promptly deliver

to the client or third person any funds or other

property that the client or third person is

entitled to receive and, upon request by the

client or third person, shall promptly render a

full accounting regarding such property.

lawyer is in possession of property in which

Rae eee Oe a

saaanciiteiaainaitniiminaliMi iii

both the lawyer and another person claim

interests, the property shall be kept separate by

the lawyer until there is an accounting and

severance of their interests. If a dispute arises

concerning their respective interests, the portion

in dispute shall be kept separate by the lawyer

until the dispute is resolved.

E.R. 1.15, Ariz.R.S.Ct.

As it was written in 1994, E.R. 1.15 only applied to

lawyers entrusted with property for safekeeping.

2. E.R. 1.15, circa 1999.

In 1999 Defendants Karman Wallwork and Schesnol

convicted Plaintiff of violating E.R. 1.15, Safekeeping

Property. They did so by discarding the cardinal rule of

statutory construction, and the text and title of E.R. 1.15:

You and Mr. Dieterle signed a fee agreement

which included a provision for a lien over the

entire settlement of his claim. However, at the

time the agreement was signed the amount of

your legal fees was not quantifiable nor could

you determine what, if any, settlement would be

reached. Once your client's case settled you

were entitled to a portion of that settlement; the

portion equal to your actual fees. As you are

undoubtedly aware, your client disputed the

amount you ultimately claimed as your fee. In

an effort to secure your fee without addressing

Mr. Dieterle's concerns, you orchestrated a plan

which would prevent the client from ever

receiving any portion of his funds without first

paying your fee. By claiming a lien on the

entire settlement, an amount which was ten

times the amount of your fees, and preventing

the distribution of any portion of those funds,

you violated E.R. 1.15.

Appendix, pp. 20-21, 26-27.

Defendants’ 1999 reconstruction of E.R. 1.15 bears

little resemblance to the written rule of law in force in 1994.

Defendants’ expanded version uses the word "lien" twice,

while the real E.R. 1.15 does not address liens at all. The real

E.R. 1.15 uses the word "property" 10 times, while Defendants’

after-the-fact version never does. Defendants’ version includes

13 instances of the words "you" and "your," while E.R. 1.15

contains none. Perhaps because they have so little in common,

Defendants’ revisionist legislation only mentions the real E.R.

1.15 once, and then without the title or authoritative text of the

Statute itself.

Defendants’ 1999 ‘anti-lien’ legislation did not become

legible to any human eye until five years after Plaintiffs 1994

contract and lien. Defendants’ law was therefore written five

years after-the-fact.

ARGUMENT ~

- Did the trial court err in denying Plaintiff's motion for

summary judgment under the ex post facto and Due

Process clauses?

A. The ex post facto ciause.

Defendants’ after-the-fact method of law enforcement

has been repugnant to core American values for a long time.

James Madison called ex post facto bills quintessentially

antisocial:

Bills of attainder, €x-post-facto laws, and laws

impairing the obligation of contracts, are

contrary to the first principles of the social

compact, and to every Principle of sound

legislation.

James Madison, Federalist No. 44, Restrictions on the

Authority of the Several States From the New York Packet.

Friday, January 25, 1788. (Emphasis added).

Alexander Hamilton called the ex post facto method a

perennial and favorite tool of tyrants:

The creation of crimes after the commission of

the fact, or, in other words, the subjecting of

men to punishment for things which, when they

were done, were breaches of no law, and the

practice of arbitrary imprisonments, have been,

in all ages, the favorite and most formidable

instruments of tyranny.

Alexander Hamilton, Federalist No. 84, Certain General and

Miscellaneous Objections to the Constitution Considered and

Answered; From McLEAN's Edition, New York, May 28,

1788. (Emphasis added).

The Federalist Papers were highly influential,’ and led

to the ratification of the United States Constitution in 1788.

From then on, every state in the Union was forbidden from

using the ex post facto method:

Section 10. No state shall enter into any treaty,

alliance, or confederation; grant letters of marque and

reprisal; coin money; emit bills of credit; make

anything but gold and silvet-eeit-atender in payment

of debts; pass any bill of attainder, ex post facto law, or

law impairing the obligation of contracts, or grant any

title of nobility.

Article I, § 10, United States Constitution. (Emphasis added).

This Court says that the ex post facto clause was

designed to serve fundamental justice, and to give fair warning

so the citizenry could rely on legislative enactments until

explicitly changed. Carmell v. Texas, 529 U.S. 513 (2000),

citing Miller v. Florida, 482 U.S. 423, 430 (1987). And

throughout its history, this Court has condemned the ex post

facto methodology: “[L]aws of this character are oppressive,

unjust, and tyrannical; and, as such, are condemned by the

universal sentence of civilized man.” Ogden v. Saunders, 12

Wheat. 213, 266 (1827). “In each instance, the government

refuses, after-the-fact, to play by its own rules, altering them in

a way that is advantageous only to the State, to facilitate an

' Chief Justice John Marshall said of the Federalist

papers: “No tribute can be paid to them which exceeds their

merit” McCulloch v. Maryland, 17 U.S. 316 (1819).

easier conviction.” Carmell v. Texas, 529 U.S. 513 (2000).

1999 came after 1994 by half a decade. Defendants

cheated Plaintiff out of five years of fair warning, and

manipulated state law in a manner condemned by the universal

sentence of civilized man. Defendants’ retroactive state action

violates the ex post facto clause of the Constitution of the

United States absolutely, and as a matter of law.

The first canon of statutory construction is obvious:

"Read the statute."" This cannon appears to have no practical

value in the Ninth Circuit.

The trial judge skipped the ex post facto clause as a

matter of policy: “Because the court concludes that it has no

jurisdiction to consider the plaintiff's claims, it is axiomatic

that it may not reach the merits of any of the plaintiff's clainis,

including his federal constitutional claims.” Appendix, p. 7, n.

3. The Ninth Circuit did likewise in a two page memo, roughly

half of which was consumed by the caption. For their part,

Arizona’s ethical leaders swapped the Constitutional rule of

law for Illinois case law,’ which they cited for the proposition

that Arizona’s legal ethics laws are not penal. Defendants’

Ninth Circuit brief, p. 20.

Actually, bar disciplinary proceedings are not just

penal, they are quasi-criminal. See In re Ruffalo, 390 U.S. 544,

* “The first canon of statutory construction is

obvious: ‘Read the statute.’” Justice John Paul Stevens, The

Shakespeare Canon of Statutory Construction, University of

Pennsylvania Law Review (v.140: no. 4, April 1992).

> How state case law can overwrite a federal law

written at a Constitutional Convention is unclear.

551 (1968), reh'g denied, 391 U.S. 961; /n Re Wilson, 106 Ariz.

34, 470 P.2d 441, 442 (1970). And in Arizona, discipline and

penalties account for Rules 46-68, of the Arizona Supreme

Court.

The text of the ex post facto clause makes no distinction

between criminal and quasi-criminal penal laws. Neither does

the United Nations,’ or this Court.* The ex post facto clause

bars any !aw which imposes a penalty for an act innocent when

done. See United States v. Arzate-Nunez, 18 F.3d 730, 733 (9th

Cir. 1994). Defendants fined Plaintiff, and have had him on

probation for the past four years. Fines and probation are

penalties, not perquisites.

In summary, Defendants’ 1999 law banning liens in fee

contracts came five years after Plaintiff's 1994 contract.

Writing and enforcing a new penal law five years after-the-fact

violates the ex post facto clause in Article I, § 10 of the United

States Constitution. It is also the polar opposite of American

Due Process.

* “No one shall be held guilty of any penal offence

on account of any act or omission which did not constitute a

penal offence, under national or international law, at the time

when it was committed.” Universal Declaration of Human

Rights, Preamble and Article 11, § 2 (1948).

> “In each instance, the government refuses, after-

the-fact, to play by its own rules, altering them in a way that

is advantageous only to the State, to facilitate an easier

conviction.” Carmell v. Texas, 529 U.S. 513 (2000).

B. The Due Process clause.

The Due Process clause says: “[N]or shall any State

deprive any person of life, liberty, or property, without due

process of law.” Fourteenth Amendment, Constitution of the

United States. In 1950, this Court elaborated on the American

principle of Due Process:

It is now the settled doctrine of this Court that

the Due Process Clause embodies a system of

rights based on moral principles so deeply

imbedded in the traditions and feelings of our

people as to be deemed fundamental to a

civilized society as conceived by our whole

history. Due: Process is that which comports

with the deepest notions of what is fair and

right and just.

Solesbee v. Balkcom, 339 U.S. 9, 16(1950) (Justice Frankfurter

dissenting).

It would seem self-evident that a legal weapon

condemned by the universal sentence of civilized man would

also offend America’s deepest notions of what is fair and right

and just. Laws written after-the-fact are written to order;

tailored with 20-20 hindsight, to precisely match the

respondent’s undeniable, and previously legal conduct. The

respondent’s factual ‘guilt’ is a legal certainty. For practical

purposes, the accused receives the impossible burden of

proving himself innocent, of something he clearly did, back

when it used to be legal. Procedural protests are treated as

“remorselessness.” (Verified Complaint, Dkt. 1, para. 49) The

ex post facto is a perennial favorite for tyrants because it is

impossible to defend.

American due process requires warning before-the-fact.

By definition, the ex post facto method gives no warning until

after-the-fact. The ex post facto law is therefore the polar

opposite of due process.

While dodging the text and purpose of the Due Process

clause before the Ninth Circuit, Arizona’s legal leaders® found

time to make a joke out the American doctrine of strict

construction:

Implicit in Plaintiff's insistence upon “strict

construction” is the notion that the text of a

statute, and nothing more, informs its

application. This is nonsensical. Every law

student, Plaintiff included, quickly learns that

statutory interpretation, whether the statute is

characterized as criminal, remedial or in any

other way, is often informed by the use of

materials extrinsic to the statute itself, including

legislative history, references to dictionary

definitions of terms, and the reviser’s notes, as _

well as the history of a statute showing its

revisions and their purposes. Every law

student, Plaintiff included, necessarily learns

that the judicial interpretation given statutes is

often dispositive of the meaning attached to a

statute, and is often far more important than the

text of the statute itself.

Defendants’ Ninth Circuit brief, p. 14.

° Since violating the federal Constitution, Arizona

ethics lawyers Karman and Wallwork have both been made

President of the Bar of Arizona Appendix. pp. 45-49.

Defendants’ legal satire confounds the American form

of government, the difference between laws that give and laws

that take, the Preamble to the state regulatory laws at issue,’ the

cardinal rule of statutory construction, and a large body of

United States Supreme Court precedent.

It is an ancient rule of statutory construction that penal

Statutes should be strictly construed against the government or

parties seeking to enforce statutory penalties, and in favor of

the persons on whom penalties are sought to be imposed. See

e.g. United States v. Fruit Growers Ex. Co., 279 U.S. 363, 369

(1929); Busic v. United States, 446 U.S. 398, 407 (1980). "The

rule that penal laws are to be construed strictly, is perhaps not

much less old than construction itself." United States v.~”

Wiitberger, 5 Wheat (18 U.S.) 76, 93 (1820).

Bar disciplinary proceedings are quasi-criminal in

nature. /n re Ruffalo, 390 U.S. 544, 551 (1968), reh'g denied,

391 U.S. 961; In Re Wilson, 106 Ariz. 34, 470 P.2d 441, 442

(1970). Respondents are therefore entitled to procedural due

process, /n re Hoover, 155 Ariz. 192, 745 P.2d 939, 943

(1987), and disciplinary rules must be read strictly, resolving

any ambiguity in favor of the person charged. U.S. v. Brown,

72 F.3d 25, 29 (Sth Cir. 1995); Matter of Thalheim, 853 F.2d

383, 388 (Sth Cir. 1988).

Far from construing E.R. 1.15 strictly, Defendants

rewrote it entirely,” five years after-the-fact. Defendants’ open

’ "The comments are intended as guides to

interpretation, but the text of each rule is authoritative."

Rule 42, Ariz.R.S.Ct., Preamble, Scope.

* If it were actually law, Defendants’ 1999 version of

E.R. 1.15 would need both a new title, and a new subsection

mockery of the doctrine of due process and strict construction

would not stand the law school laugh test. In the Ninth Circuit,

it doesn’t have to. The lower courts both skipped the

Constitutional rule of law, in favor of their own unpublished

case law. |

The trial court erred in denying Plaintiff's motion for

summary judgment on his claims arising under the ex post

facto and Due Process clauses of the Constitution of the United

States. ;

ae 4 May lower courts rely on unpublished case law, to the

exclusion of Constitutional rules of law, acts of

Congress, and published decisions of this Court?

America’s highest laws are published in the

Constitution of the United States. Acts of Congress are

published in the United States Code. This Court’s decisions

are published in three different reporter systems.

In place of the top three tiers of America’s published

laws, the trial judge substituted a pair of unpublished lower

court decisions; one by the Ninth Circuit, and one by himself.

(d):

E.R. 1.15 SAFEKEEPING PROPERTY;

ATTORNEY LIENS

(a) (no change)

(b) (no change)

(d) A lawyer shall not enter into an agreement for

services that contains a lien securing payment.

_ A. Unpublished Ninth Circuit decisions.

Unpublished Ninth Circuit decisions are written by law

clerks, not Article III judges.” While the Ninth Circuit says its

“memdispos” should not be cited as precedent by lawyers or

judges in the Ninth Circuit," they all do it anyway. The trial

court skipped the Constitutional rule of law, and treated an

unsigned, unpublished Ninth Circuit memo as ‘blinding’"' legal

precedent.

B. Unpublished District Court decisions.

If unpublished decisions bearing the names of three

” See PLEASE DON’T CITE THIS!, Alex Kozinski

and Stephen Reinhardt, California Lawyer, June 2000.

Appendix, pp. 39-44.

“CITATION OF UNPUBLISHED

DISPOSITIONS OR ORDERS: (a) Not Precedent :

Unpublished dispositions and orders of this Court are not

binding precedent, except when relevant under the doctrine

of law of the case, res judicata, and collateral estoppel. (b)

Citation : Unpublished dispositions and order of this Court

may not be cited to or by the courts of this circuit, except in

the following circumstances.” Rule 36-3. None of the

exceptional circumstances apply here, but Rule 36-3 is

reproduced in its entirety at Appendix, pp. 35-36.

"" Judicial precedents have traditionally been labeled

“persuasive” or “binding,” with the difference depending on

the two courts involved, and the facts of the two cases. The

trial judge skipped the facts, skipped the law, and took

“judicial notice,” of an unsigned, publically unseen memo,

written by a clerk, at the most reversed circuit in the nation.

Article III judges are unreliable as precedent, one wonders why

an unpublished decision bearing only one judge’s name would

be more reliable. Unburdened by logic or legal analysis, the

trial court simply took “judicial notice” of his own prior

unpublished work. Appendix, p. 6-7, n. 2.

By choosing to follow his own unpublished work

instead of the Constitution of the United States, the tial court

reduced the judgments issuing from the Sandra Day O’Connor

Courthouse to a procession of narcissistic legal lemmings,

blindly following the sound of their own voice, without a trace

of rational thought.

Two hundred years ago, applying the Constitutional

rule of law in a case arising thereunder was considered “the

very essence of judicial duty.” Marbury v. Madison, | Cranch

137 (1803). These days, federal judges routinely swap

unpublisned legal memos for laws ratified by three quarters of

the nation. If Chief Justice John Marshall’s operator’s manual

for the federal judiciary has become an anachronis:i, then this

Court should say so, publically. The tide is low, and people

have a right to know.

c Do federal judges ever abstain in favor of patently

unconstitutional state action?

There is no abstention clause in the Constitution of the

United States. There never has been. There is however a

clause requiring judicial officers to support the Constitution:

The Senators and Representatives before

mentioned, and the Members of the several

State Legislatures, and all executive and judicial

Officers, both of the United States and of the

several States, shall be bound by Oath or

Affirmation, to support this Constitution.

Article VI, § 3, Constitution of the United States.

There is no federal abstention statute, and never has

been. Congress has however passed a statute requiring federal

judges to support and defend the C onstitution of the United

States: .

An individual, except the President, elected or

appointed to an office of honor or profit in the

civil service or uniformed services, shall take

the following oath: "I, AB, do solemnly swear

(or affirm) that | will support and defend the

Constitution of the United States against all

enemies, foreign and domestic . . ..

5 U.S.C. § 3331.

Abstention is a judge-made procedural doctrine.

Parrington, Rooker-Feldman, Younger, etc. are case decisions.

If federal judges may swap procedural case law for the very

essence of the Constitution they swear to support and defend,

their oaths become meaningless, as do the rules in the

Constitution itself. The abstention case law doctrine is not

supposed to overwrite America’s highest laws:

The _ principles of abstention under which a

federal court must refrain from interfering in

certain state proceedings, for reasons of

federalism and comity, do not apply in those

cases where the state proceeding is motivated

by a desire to harass, or is in bad faith, or where

a statute challenged in the action is flagrantly

and patently vocative of express constitutional

prohibitions in every clause, sentence and

paragraph, and in whatever manner and against

whomever an effort might be made to apply it.

Moore v. Sims, 442 U.S. 415, 424 (1979), citing Huffman v.

Pursue, 420 U.S. 592, 611 (1969), reh'g denied 421 U.S. 971

(emphasis added).

Defendants wrote their own ‘anti-lien’ version of E.R.

1.15 five years after-the-fact. Ex post facto laws are “flagrantly

and patently vocative of express constitutional prohibitions,”

specifically, the ex post facto and Due Process clauses

discussed at length in Section | above.

Ex post facto laws are also patently unconstitutional “in

every clause, sentence and paragraph, and in whatever manner

and against whomever an effort might be made to apply it.” See

Ogden v. Saunders, 12 Wheat. 213, 266 (1827)(“[L]aws of this

character are oppressive, unjust, and tyrannical; and, as such, are

condemned by the universal sentence of civilized man.”).

When federal citizens use state government in a manner

expressly forbidden by the piain text of our nation’s paramount

law, federal judges are not supposed to look the other way. If

they are going to anyway, perhaps they should muster the

fortitude to do so publically. Abstention in favor of patently

unconstitutional state action 1s comparable to a surgeon

walking away from the table, so the cancer and the patient can

work it out on their own. It is a cop, that doesn’t want to get

involved in crime.

While abstaining in favor of a form of government that

James Madison called contrary to the first principles of the

social compact, the trial court complained that Plaintiff's ex

post facto claims were “inextricably intertwined with the

underlying state court decision.” There is no ex post fuct case

in which the ex post facto claim is not intertwined with the

underlying retroactive state action; the retroactive state process

is the very source of the constitutional violation. Ignoring the

retroactive state process in an ex post facto case is like ignoring

the crime in a criminal case. Constitutional claims are always

inextricably interwoven with the underlying state action from

which they arise. That is true whether the state action violates

the ex post facto clause, Due Process, Equal Protection, Free

Speech, strict construction, efc.

By abstaining in favor of patently unconstitutional state

action, the trial court also abstained in favor of a form of state

action that is legally “null and void.” Throughout American

history, acts repugnant to the Constitution have been

considered null and void.'? Defendants’ state action is

'? E.g.,"A law violating a constitution established by

the people themselves, would be considered by the Judges as

null and void." James Madison, 2 Farrand, The Records of

the Federal Convention of 1787, 93, note 23. “Thus, the

particular phraseology of the constitution of the United

States confirms and strengthens the principle, supposed to be

repugnant to the Constitution, and therefore legally null and

void. Federal judges who abstain in favor of the null and void

make a farce of federalism.

The trial court punctuated his farce by violating a cluster

of abstention rules. For example, abstention is precluded where

the state tribunal is acting beyond its authority. Sycuan Band of

Mission Indians v. Roache, 54 F.3d 535, 541 (9th Cir. 1994),

cert. denied, 133 L.Ed.2d 203. Defendants' legal process began

and continued in violation of their own jurisdictional mandate."

This is in part a First Amendment case, involving an ex post

facto quasi-criminal process, in which speech was both forced

and abridged. (Verified Complaint, Dkt. 1, paras. 95-100).

Abstention is particularly inappropriate in First Amendment

cases. See Yniguez v. Mofford, 730 F.Supp. 309, 316 (D.Ariz.

1990), reversed on other grounds, Yniguez v. Arizonans for

Official English, 69 F.3d 920 (9th Cir. 1995), vacated and

remanded, Arizonans for Off. Eng. v. Arizona, 137 L.Ed 2d 170

(1997). See also Ripplinger v. Collins, 868 F.2d 1043, 1056

(9th Cir. 1989).

essential to all written constitutions, that a law repugnant to

the constitution is void; and that courts, as well as other

departments, are bound by that instrument. Marbury v.

Madison, | Cranch 137 (1803).

'* Verified complaint, Dkt. 1, paras. 50-52, 72-74.

See also "Bar counsel shall investigate all information

coming to the attention of the state bar which, if true, would

be grounds for discipline or transfer to disability inactive

status." Rule 49 (c)(1), Ariz.R.S.Ct. “If the allegations, if

true, would not constitute misconduct or incapacity, under

these rules, the matter shall be dismissed, but may be

referred to the peer review committee.” Rule 53(b)(1 ),

Ariz.R.S.Ct.

Even where all the requirements for federal abstention are

met, abstention is inappropriate where bad-faith prosecution or

harassment is present, Lebbos v. Judges of Superior Court, 883

F.2d 810, 814 (9th Cir. 1989), and where the state tribunal is

incompetent by reason of bias. See Gibson v. Berryhill, 411 U.S.

564, 577-79 (1973); Hirsh v. Justices of Supreme Court of

California, 67 F.3d 708, 713-15 (9th Cir. 1995). The ex post facto

law is tyranny’s timeless calling card, and perhaps the world’s best

documented example of bad-faith harassment and bias.

Abstaining in favor of the best known government

abuses is standing down, when the federal bench is most

expected to stand firm, and put the Constitution into practical

effect. Abstention in favor of retroactive state action makes the

ex post facto clause an American first principle with absolutely

no practical meaning, and disregards the very purpose of §

1983:

The very purpose of § 1983 was to interpose the

federal courts between the States and the

people, as guardians of the people's federal

rights -- to protect the people from

unconstitutional action under color of law,

‘whether that action be executive, legislative or

judicial.'

Mitchum v. Foster, 407 U.S. 225, 242 (1972).

The trial court erred in abstaining in favor of

Defendants’ patently unconstitutional, retroactive state action.

4. Should the trial judge have been recused?

This case was originally assigned to the Honorable John

W. Sedwick, a federal judge from Alaska who was visiting the

District of Arizona. Defendants’ first act was to steer the case

to a fellow Arizona attorney. Defendants filed a motion to

transfer. gave Judge Rosenblatt a copy, and skipped Judge

Sedwick. Defendants told Judge Rosenblatt that his

“familiarity with both the case law governing such matters, and

his earlier handling of the prior case will enable him to dispose

of the new action and avoid substantial duplication of judicial

effort.”'* They were right about the effort.

q is

While this Court once called applying the constitutional

rule of law “the very essence of judicial duty,” the trial judge

said otherwise: “Because the court concludes that it has no

jurisdiction to consider the plaintiff's claims, it is axiomatic

that it may not reach the merits of any of the plaintiff's claims,

including his federal constitutional claims.” Appendix, p. 7, n.

Self-imposed constitutional ignorance should easily

qualify as the kind of extreme legal favoritism that makes fair

judgment of the legal issues impossible. Liteky v. United

States, 510 U.S. 540, 555 (1994). In a case arising under the

Constitution, fair judgment can never be rendered in a

constitutional vacuum. And in the American federal judiciary,

there can be no greater prejudice than that of a federal judge

who has closed his eyes on the constitution.'* A federal judge

blind to the Constitution is not fit to serve as trier of law in a

'* Dkt. 7, Defendants’ November 28, 2000 motion to

transfer, p. 2, lines 12-14.

’ “Those, then, who controvert the principle that the

constitution is to be considered, in court, as a paramount law

are reduced to the necessity of maintaining that courts must

close their eyes on the constitution, and see only the law.”

Marbury v. Madison, | Cranch 137 (U.S. 1803).

case arising thereunder. |

While ignoring the Constitution he is sworn to support

and defend, the trial judge found time to threaten Plaintiff with

Rule 11 sanctions,'* for maintaining a case arising under the

Constitution of the United States. The trial court also implied

Plaintiff was violating unnamed ethical rules,'’ and allowed the

Defendants to conceal subpoenaed documents relevant to their

motion to dismiss.'*

Plaintiff is “citizen of the United States,” and this is a

case arising under the Constitution of the United States. When

they bring their social disputes to federal court, American

citizens have a right to a detached, fair and impartial judge.

See Kern v. Levolor Lorentzen, Inc., 899 F.2d 772, 779 (9th

Cir. 1990). “What matters is not the reality of bias or

prejudice, but its appearance.” U.S. ex. rel. Hochman v.

Nackman, 145 F.3d 1069, 1076 (9th Cir. 1998), citing 28

U.S.C. 455(a); Liteky v. United States, 510 U.S. 540 (1994).

Judge Sedwick was a federal judge who was not a member of

the same trade group as the Defendants and the trial judge. He

should have decided the legal issues, and the constitutionally

adverse Judge Rosenblatt should have been recused.

'° “But, take a hard look, Mr. Gilchrist. You're a

hard man to convince, but there may well have to be Rule 11

sanctions if there is no substantial difference in these cases

and the court ends up with the same ruling.” Dkt. 25, Ex. 18.

” Dkt. 25, pp. 3-5.

'* Plaintiff subpoenaed his ethics file from the State

Bar of Arizona. Dkt. 25, pp. 10-13. The State Bar refused to

provide anything other than what it styled “the public record

portion” of the file, citing a state statute.

5, Does Arizona’s immunity statute violate the Equal

Protection Clause?

The trial court dismissed Plaintiff's diversity claims

without comment. As a result, the trial court never read,

addressed or applied the state immunity statute under which he

gave the Defendants absolute immunity from Plaintiff's

diversity’ claims. Those who read the Arizona Supreme

Court’s Rule 54(1) will find a state statute that gives legal

protection to everyone in a quasi-criminal state process, except

the respondent:

Immunity From Civil Suit. Communications to

the court, state bar, commission, hearing

committees or hearing officers, mediators, the

peer review committee, monitors of the

Membership Assistance or Law Office

Management Assistance Programs, probable

cause panelists or bar counsel relating to lawyer

misconduct, lack of professionalism or

disability and testimony given in_ the

proceedings shall be absolutely privileged

"Conduct by persons acting under color of state

law which is wrongful under 42 USC § 1983 or § 1985(3)

cannot be immunized by state law. A construction of the

federal statute which permitted a state immunity defense to

have controlling effect would transmute a basic guarantee

into an illusory promise; and the supremacy clause of the

Constitution insures that the proper construction may be

eriforced." Martinez v. California, 444 U.S. 277, 284, n.8,

(1980), reh'g denied, 445 U.S. 920. If valid, state Rule 54(1)

would only immunize Defendants from Plaintiff's state

based claims.

conduct, and no civil action predicated thereon

may be instituted against any complainant or

witness. Members of the board, commission,

hearing committees or hearing officers,

mediators, the peer review committee, monitors

of the Membership Assistance or Law Office

Management Assistance Programs, probable

cause panelists, bar counsel and staff shall be

immune from suit for any conduct in the course

of their official duties.

Rule 54(1), Ariz.R.S.Ct. (Emphasis added).

Rule 54(1) is facially invalid, and represents a

purposeful discrimination between classes of persons.

Complainants and witnesses can speak freely, while

Respondents cannot. The chilling effect on Plaintiff's

unprotected speech in this case was anything but trivial.

For anyone who reads it, the unequal protections of the

Arizona Supreme Court's immunity rule are glaring. The trial

court solved Rule 54(1)’s equal protection problems by not

looking at it.

The Ninth Circuit did the same. It’s two page memo

contains no reference to Plaintiff’ s diversity Claims, Rule 54(1),

or the Equal Protection Clause it violates. These days, in the

Ninth Circuit, the Constitutional rule of law literally does not

rate an honorable mention.

* Prior to their frivolous bar complaint, the highly

litigious Dieterles had sued Respondent/Plaintiff for a non-

existent cause of action, and accused him of libel and

slander. (Verified Complaint, Dkt. 1, para. 16, 98).

CONCLUSION

Two hundred years ago, this Court decided Marbury v.

Madison, | Cranch 137 (U.S. 1803). In addition to laying the

groundwork for judicial review, Chief Justice John Marshall’s

landmark decision had a good deal to say about the federal

judiciary’s relationship with the Constitution of the United

States:

Those, then, who controvert the principle that

the constitution is to be considered, in court, as

a paramount law are reduced to the necessity of :

maintaining that courts must close their eyes on

the constitution, and see only the law.

‘

So if a law be in opposition to the constitution:

if both the law and the constitution apply to a

particular case, so that the court must either

decide that case conformably to the law,

disregarding the constitution; or conformably to

the constitution, disregarding the law; the court

must determine which of these conflicting rules

governs the case. This is of the very essence of

judicial duty.

The judicial power of the United States is

extended to all cases arising under the

constitution. Could it be the intention of those

who gave this power to say that in using it the

constitution should not be looked into? That a

case arising under the constitution should be

decided without examining the instrument

under which it arises?

This is too extravagant to be maintained.

In some cases, then, the constitution must be

looked into by the judges. And if they can open

it at all, what part of it are they forbidden to

read or to obey?

Ought the judges to close their eyes on the

constitution, and only see the law?

Why otherwise does it direct the judges to take

an oath to support it? This oath certainly applies

in an especial manner, to their conduct in their

official character. How immoral to impose it on

them, if they were to be used as the instruments,

and the knowing instruments, for violating what

they swear to support!

The oath of office, too, imposed by the

legislature, is completely demonstrative of the

legislative opinion on this subject. It is in these

words: "I do solemnly swear that | will

administer justice without respect to persons,

and do equal right to the poor and to the rich;

and that I will faithfully and impartially

discharge all the duties incurabent on me as,

according to the best of my abilities and

understanding agreeably to the constitution and

laws of the United States."

Why does a judge swear to discharge his duties

agreeably to the constitution of the United

States if that constitution forms no rule for his

government? If it is closed upon him, and

cannot be inspected by him?

If such be the real state of things, this is worse

than solemn mockery. To prescribe, or to take

this oath, becomes equally a crime.

Marburv v. Madison, | Cranch 137 (U.S. 1803).

The trial court’s unpublished 21st century answer to

Marbury v. Madision was to skip the Constitutional rule of law,

as a matter of policy: “Because the court concludes that it has no

jurisdiction to consider the plaintiffs claims, it is axiomatic that

it may not reach the merits of any of the plaintiff's claims,

including his federal constitutional claims.” Appendix, p. 7, n. 3.

Lawyers possess specialized training that gives them

the power and temptation to manipulate the American justice

system for their own ends. Shapero v. Kentucky Bar Ass'n.,

486 U.S. 466, 489 (1988)(O'Connor, J., dissenting, joined by

Rehnquist, C.J., and Scalia, J.). The Defendants are three of

Arizona’s most ethical lawyers, trusted to police the integrity

of Arizona’s legal trade.

Left to their own devices,”! Defendants Karman

*' “The State Bar is an arm of the Supreme Court in

this state and | think that it is incumbent upon this court to

exercise some degree of oversight with respect to its

activities. That does not mean that we should micromanage

its activities and we will not attempt to do that. It does mean

that the court should pay attention to what is going on in that

organization. I don't believe the court has ever really

exercised a sufficient degree of oversight.” Arizona

Supreme Court Chief Justice Thomas A. Zlaket, Dkt. 9, Ex.

29.

Wallwork and Schesnol betrayed the public trust by joyriding

witha critical office of state government, and misusing Arizona

law in a retroactive form repugnant to the Constitution of the

United States, and “condemned by the universal sentence of

civilized man.” Ogden v. Saunders, 12 Wheat. 213, 266

(1827).

The trial judge is an Arizona attorney too. When

confronted with his colleagues’ unconstitutional misuse of state

government, the trial judge turned a blind eye, and abstained.

He was affirmed by a clerk and a computer at the most reversed

Circuit in the nation. The clerk may be a lawyer; the computer

is not. Neither the clerk nor the computer is an Article III

judge.

Over the course of two hundred years, the “very essence

of judicial duty” has degraded to the very essence of judicial

bureaucracy. The tide is low. —

The writ should be granted.”

July 4, 2003.

DAVID GILCHRIST

210 Hauoli Street

Wailuku, Hawaii USA 96793

(808) 986-0908

22 "No nation can answer for perfect exactitude of

proceedings in all their inferior courts. It suffices to provide

a supreme judicature where all error and partiality will be

ultimately corrected." -Thomas Jefferson to George

Hammond, 1792. ME 16:255.

APPENDIX

FILED

JUN 17 2003

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

NOT FOR PUBLICATION

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID GILCHRIST, No. 02-16609

Plaintitf-Appellant, D.C. No. CV00-

V. 01561-PGR

KIRK V. KARMAN, husband;

et.al. MEMORANDUM!

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Paul G. Rosenblatt, District Judge, Presiding

Submitted June 9, 20037

Before: RYMER, THOMAS, and SILVERMAN, Circuit

' This disposition is not appropriate for publication

and may not be cited to or by the courts of this circuit except

as may be provided by 9th Cir. R. 36-3.

* This panel unanimousiy finds this case suitable for

decision without oral argument. See Fed. R. App. P.

34(a)(2).

A-l

Judges.

David Gilchrist, an attorney, appeals pro se the district

court's judgment dismissing his 42 U.S.C. § 1983 action

alleging that certain representatives of the State Bar of Arizona

("SBA") violated both his constitutional rights and Arizona law

by concluding, after an investigation, that he withheld disputed

funds from a client and refused to cooperate during the course

of an ethics investigation. We have jurisdiction under 28

U.S.C. § 1291. We review de novo the district court's dismissal

for lack of subject matter jurisdiction. Parrington v. Gedan,

961 F.2d 852, 864 (9th Cir. 1992). We affirm.

The district court properly dismissed Gilchrist's action

under the Rooker-Feldman doctrine because all of his claims

were inextricably intertwined with the SBA's decision that he

committed ethics violations. See id. at 864-65.

The district court did not abuse its discretion by denying

Gilchrist's motion to recuse Judge Rosenblatt because adverse

rulings alone generaily do not support a finding of judicial bias.

See Leslie v. Grupo ICA, 198 F.3d 1152, 1160-61 (9th Cir.

1999): see also 28 U.S.C. § 455(a).

Contrary to Gilchrist's contention, the district court did

not violate Ninth Circuit Rule 36-3. See 9th Cir. R. 36-3(b)(11);

see also Sorchini v. City of Covina, 250 F.3d 706, 708 (9th Cir.

2001) (per curiam) (rule "permits the citation to an unpublished

disposition where the very existence of the prior case is

relevant as a factual matter to the case being briefed")

(emphasis in original)).

Gilchrist's remaining contentions lack merit.

AFFIRMED.

A-2

_x_ FILED LODGED

___ RECEIVED __ COPY

AUG 0 5 2002

CLERK UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

By__s/DS DEPUTY

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

David Gilchrist, ) JUDGMENT IN A CIVIL

) CASE

)

Plaintiff, ) CV 00-1561-PHX-PGR

V. )

Kirk V. Karman, et. al.

Defendants

Jury Verdict. This action came before the Court for a

trial by jury. The issues have been tried and the jury has

rendered its verdict.

X Decision by Court. This action came for consideration

before the Court. The issues have been considered and a

decision has been rendered.

(TIS ORDERED AND ADJUDGED that the Court has granted

A-3

the Defendants’ Motion to Dismiss to the extent that this action

is dismissed in its entirety pursuant to Fed. R.Civ.P 12 (b) (1)

for lack of subject matter jurisdiction. Therefore, the Plaintiff

shall take nothing. This complaint and action are hereby

dismissed.

August 5, 2002 RICHARD H. WEARE

District Court Executive/Clerk

s/Kathleen W. Garchey

(By) Deputy Clerk

cc: (all counsel)

A-4

_x_ FILED LODGED

___ RECEIVED _ COPY

AUG 05 2002

CLERK UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

By_s/DS DEPUTY

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

David Gilchrist,

Plaintiff, No. CV 00-1561 PHX PGR

Vv.

ORDER

Kirk V. Karman, et al.,

Defendants

Nene” ‘Nee? Nee” eee” eae Nee” Sees? “Ne Nee” Ne”

Pending before the Court is Plaintiff's motion for

summary judgment on his claims arising under the ex post facto

and Due Process clauses of the Constitution of the United

States (doc. #16) and Defendants' Cross-Motion to Dismiss

(doc. #21). Having considered the parties' memoranda, the

Court finds that this action should be dismissed in its entirety

for lack of subject matter jurisdiction.

The plaintiff, a practicing attorney appearing pro se in

this action, has sued three officials of the State Bar of Arizona,

and their spouses, for the officials' actions in subjecting the

A-5

plaintiff to a State Bar disciplinary action.' The plaintiff's

complaint raises federal civil rights claims pursuant to 42

U.S.C. § 1983, alleging that the disciplinary action violated the

ex post facto and bill of attainder clauses of the Constitution,

violated the plaintiff's First Amendment rights, and violated his

14th Amendment rights to due process and equal protection,

and state law claims pursuant to diversity jurisdiction for

defamation, abuse of process, and negligence; the complaint

seeks nominal, compensatory and punitive damages, and

unspecified declaratory and injunctive relief regarding Arizona

Supreme Court Rules 49(c)(1), 51 (h) and (Rule 53 (b) (1), and

Rule 54(1).2 The claims arise from a disciplinary investigation

' The defendant officials are Kirk Karman, Nicholas

Wallwork, and Jacqueline Schesnol.

> This action is in effect a continuation of an earlier

action filed in this Court by the plaintiff acising from the

same disciplinary action and alleging essentially the same

claims. In the first action, Gilchrist v. Arizona Supreme

Court, CV 99-0629 PHX PGR, the plaintiff sued the Arizona

Supreme Court, the State Bar of Arizona, various State Bar

officials, and a former client and the client's counsel. The

Court entered an opinion on March 8, 2000 (doc. #58) that

dismissed the first action in its entirety due to the

jurisdictional bar of the Rooker-Feldman doctrine and,

alternatively, on Younger abstention and on federal and state

law immunity grounds. The Ninth Circuit affirmed that

dismissal on appeal in an unpublished decision entered on

March 12, 2001 in No. 00-15739, 10 Fed.Appx. 468, 2001

WL 294326.

Notwithstanding the plaintiff's apparent belief to the

contrary, the Court notes that it may take judicial notice of

its own unpublished opinion in the first action, In re Turner,

199 B.R. 694, 695 (9th Cir.BAP 1996)("[A] Court may take

A-6

and proceeding that was commenced against the plaintiff by the

State Bar in June 1998 after it received an ethics complaint

against the plaintiff concerning his conduct involving a fee

dispute with a former client. The State Bar, through informal

reprimand orders issued by defendant Karman on May 19, 1999

and defendant Wallwork on September |, 1999, both of which

were allegedly written by defendant Schesnol, concluded that

plaintiff had violated ER 1.15 and placed him on probation,

ordered him to attend a one-day ethics enhancement course,

and to pay $300.00 in costs.

The defendants contend in part in their Cross-Motion to

Dismiss, in an argument inexplicably ignored by the plaintiff,

that this action should be dismissed pursuant to the Rooker

Feldman doctrine. Since Rooker-Feldman is a jurisdictional

doctrine, Olson Farms, Inc. v. Barbosa, 134 F.3d 933, 937 (9"

Cir. 1998), it is the first issue that the Court must decide and,

given the Court's conclusion that the doctrine is applicable to

the entirety of this action, it is the only issue that the Court

need decide.’

judicial notice of its own opinions, whether published or

not."), and may take judicial notice of the Ninth Circuit's

unpublished decision in the first action pursuant to Ninth

Circuit Rule 36-3(a) and (b) (i) and (ii).

* Because the Court concludes that it has no

jurisdiction to consider the plaintiff's claims, it is axiomatic

that it may not reach the merits of any of the plaintiff's

claims, including his federal constitutional claims. As the

Supreme Court has made clear, "[j]urisdiction is power to

declare the law, and when it ceases to exist, the only function

remaining to the court is that of announcing the fact and

dismissing that cause." Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83, 118 S.Ct. 1003 (1998)(quoting

A-7

Under the Rooker-Feldman doctrine, a federal district

court does not have subject matter jurisdiction to review federal

or state law claims, including federal constitutional challenges

pursuant to 42 U.S.C. § 1983 seeking damages and injunctive

or declaratory relief, that are inextricably intertwined with the 5

underlying state court decision. Courts have consistently

concluded that the Rooker-Feldman doctrine is generally

applicable to collateral attacks on attorney disciplinary

proceedings because such proceedings are generally judicial in

nature. District of Columbia Court of Appeals v. Feldman, 460

U.S. 462, 479, 103 S.Ct. 1303, 1313 (1983). Such proceedings

are considered judicial in nature even if they just involve state

bar proceedings. Nargy v. Dean, 32 F.3d 1521, 1525 (11th Cir.

1994)("The defendants correctly note that the Rooker-Feldman

doctrine has been applied to state bar proceedings."); Samuel

v. Michaud, 980 F.Supp. 1381, 1414 (D.Id. 1996), affd, 129

F.3d 127 (9th Cir. 1997)("[T]he court notes that the

Rooker-Feldman doctrine applies here because the state bar 1s

an arm of the state courts, and the state bar disciplinary hearing

is judicial in nature and effect."). The doctrine applies to a

state bar disciplinary decision notwithstanding that the highest

state court has not issued a final decision on the matter.”

Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)). See

also, Parrington v- Gedan, 961 F.2d 852, 865 (9" Cir.

1992)(The court noted that the Rooker-Feldman doctrine

prevented it from considering the merits of an attorney's

constitutional claims arising from disciplinary action taken

against him.)

* There is nothing in the record of this action, nor in

the record of the first action, that establishes that the plaintiff

has made any attempt to challenge the State Bar's

disciplinary sanction through any of the state's administrative

or judicial appeal procedures.

A-8

Allstate Insurance Co, v. West Virginia State Bar, 233 F.3d

813, 816-17 and 820 (4th Cir. 2000)(Court, in rejecting an

argument that a decision of a state bar committee was not the

decision of a state court, concluded that the Rooker-Feldman

doctrine precluded a challenge to a decision of the state bar's

committee on unlawful practice of law); see also, Worldwide

Church _of God _v. McNair, 805 F.2d 888, 891 (9th Cir.

1986)(Court concluded that Rooker-Feldman doctrine applies

where the state court decision under attack is not that of the

state's highest court.) In short, the Rooker-Feldman doctrine

has been rightly said to have "eliminate[d] most avenues of

attack on attorney discipline." Johnson v. Supreme Court of

[linois, 165 F.3d 1140, 1141 (7th Cir.), cent. denied, 528 U.S.

916 (1999). i

The Court concludes that the Rooker-Feldman doctrine

is applicable to this action .° First, the Court accepts the

* The Court notes that even were it to find that the

Rooker Feldman doctrine is not applicable because the

underlying State Bar disciplinary proceeding was still

on-going at the time this action was commenced, it would

still dismiss this action in its entirety on the alternative bases

which it used to dismiss the plaintiff's first action, i.e. the

Younger abstention doctrine, federal quasi-judicial and/or

quasi-prosecutorial immunity, and state law immunity

pursuant to Ariz.Sup.Ct.R. 54(1). Furthermore, even if the

Court were to find that the plaintiff's reiterated challenge to

the constitutionality of Ariz.Sup.Ct.R. 54(1) is a generalized

challenge outside the scope of the Rooker-Feldman doctrine,

the Court would conclude that the plaintiff's challenge is

legally untenable given the fact that both this Court and the

Ninth Circuit expressly found in the plaintiff's first action,

wherein the plaintiff raised the same constitutional

arguments concerning the rule, that the rule is constitutional.

A-9

plaintiff's position that the underlying State Bar disciplinary

action against him has concluded.°

Second, that Court concludes that all of the plaintiff's

federal claims and state claims are inextricably intertwined

with a the underlying State Bar disciplinary proceeding. As the

Ninth Circuit has made clear, "[i]f in order to resolve the claim,

the district court would have to go beyond mere review of the

state rule as promulgated, to an examination of the rule as

applied by the state court to the particular factual circumstances

of the plaintiffs case, then the court lacks jurisdiction."

Worldwide Church of God, 805 F.2d at 892 (emphasis in

original; internal quotation marks and brackets omitted). In this

case, the Rooker-Feldman doctrine is implicated because it is

clear from the plaintiff's complaint that he is challenging the

manner in which the defendants interpreted and applied certain

ethical and procedural rules in his disciplinary proceeding, e.g.

their alleged "one-time expansion of E.R. 1.15", their alleged

"manipulation of E.R. 8.4 (c)", their alleged violation of their

own internal rules and the Rules of the Arizona Supreme Court,

etc., and his allegations obviously call into question the

propriety of the disciplinary sanction order. Simply put, a

finding in the plaintiff's favor on any of his claims in this

action, whether based on federal constitutional law or state law,

would necessarily impugn the validity of the underlying

disciplinary sanction order, and that is a result barred by the

Rooker-Feldman doctrine. Therefore,

6 While the Court does not necessarily accept the

plaintiff's contention that the underlying disciplinary action

concluded on September 1, 1999 when the second informal

order of reprimand was entered, there is nothing in the |

record before the Court that establishes that the disciplinary

action is in fact still on-going.

A-10

IT IS ORDERED that the Plaintiffs motion for

summary judgment on his claims arising under the ex post facto

and Due Process clauses of the Constitution of the United

States (doc. #16) is denied. IT IS FURTHER OF.DERED that

the defendants’ Cross-Motion to Dismiss (doc. #1 6) is granted

to the extent that this action is dismissed in its entirety pursuant

to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.

The Clerk of the Court shall enter judgment accordingly.

Dated this Sth day of August, 2002.

s/Paul G. Rosenblatt

Paul G. Rosenblatt

United States District Judge

i iin

_x_ FILED LODGED

~_ RECEIVED ___ COPY

JULY 15 2002

CLERK UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

By_s/DS DEPUTY

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

David Gilchrist,

Plaintiff, No. CV 00-1561 PHX PGR

ORDER

Kirk V. Karman, et al.,

Defendants

Nee eee ie ie ie

Pending before this Court is Plaintiffs Motion to Recuse

the Honorable Paul G. Rosenblatt (Doc. #25).' Plaintiff claims

this matter should be re-assigned because Judge Rosenblatt is

not impartial and is biased against Plaintiff.

I. LEGAL STANDARD

' The Court notes that Plaintiff argues the merits of

his case in part of the recusal motion. This Court has only

- undertaken to deal with the portion of the motion that relates

specifically to the request to recuse Judge Rosenblatt.

A-12

recuse in a particular case. 28 U.S.C. § 144 states:

Whenever a party to any proceeding ina district

court makes and files a timely an sufficient

affidavit that the judge before whom the matter

is pending has a personal bias or prejudice.

either against him or in favor of any adverse

party, shall proceed no further therein, but

another judge shall be assigned to hear such

proceeding. The affidavit shall state the facts

and the reasons for the belief that bias or

prejudice exists, and shall be filed not less than”

ten days before the beginning of the term at

which the proceeding is to be heard, or good

cause shall be shown for failure to file it within

such time. A party may file only one such

affidavit in any case. It shall be accompanied

by a certificate of counsel of record stating that

it is made in good faith.

Two statutes govern whether a federal judge must

28 U.S.C. § 144 (2002).

28 U.S.C. § 455 states:

(a) Any justice, judge, or magistrate of the

United States shall disqualify himself in any

proceeding in which his impartiality might

reasonably be questioned. (b) He shall also

disqualify himself in the following

circumstances: | Where he has a personal bias

or prejudice concerning a party, or personal

knowledge of disputed evidentiary facts

A-13

concerning the proceeding; . ..”

28 U.S.C. § 455 (2002).

The Supreme Court has offered further guidance

regarding when recusal is required: First, judicial rulings alone

almost never constitute a valid basis for a bias or partiality

motion. See United States v. Grinnell Corp., 384 U.S. at 583.

In and of themselves (i.e., apart from surrounding comments or

accompanying opinion), they cannot possibly show reliance

upon an extrajudicial source; and can only in the rarest

circumstances evidence the degree of favoritism or antagonism

required (as discussed below) when no extrajudicial source is

involved. Almost invariably, they are proper grounds for

appeal, not for recusal. Second, opinions formed by the judge

on the basis of facts introduced or events occurring in the

course of the current proceedings, or of prior proceedings, do

not constitute a basis for a bias or partiality motion unless they

display a deep-seated favoritism or antagonism that would

make fair judgment impossible. Thus, judicial remarks during

the course of a trial that are critical or disapproving of, or even

hostile to, counsel, the parties, or their cases, ordinarily do not

support a bias or partiality challenge. They may do so if they

reveal an opinion that derives from an extrajudicial source; and

they will do so if they reveal such a high degree of favoritism

or antagonism as to make fair judgment impossible.

United States v. Liteky, 510 U.S. 540, 555 (1994). Thus, the

Supreme Court has made clear 26 that an extrajudicial source

is typically required for recusal to be appropriate. /d. The only

exception to the extrajudicial source requirement is when

actions by the judge reveal a lack of impartiality so high that

? The remaining portions of 28 U.S.C. § 455 are not

at issue in this case.

A-14

fair judgment would be impossible. /d. Additionally, even

when an extrajudicial source exists, the mere existence of an

extra judicial source is not, in and of itself, sufficient to justify

"bias or prejudice" recusal. /d. at 554. Finally, "[a]lso not

subject to deprecatory characterization as ‘bias' or prejudice’

are opinions held by judges as a result of what they learned in

earlier proceedings." /d. at 551.

Comments "/n/ot establishing bias or partiality ... are

expressions of impatience, dissatisfaction, annoyance, and even

anger, that are within the bounds of what imperfect men and

women, even after having been confirmed as federal judges,

sometimes display. A judge's ordinary efforts at courtroom

administration--even a stern and short-tempered judge's

ordinary efforts at courtroom administration--remain immune."

Id. at 555-5o.

The moving party bears the burden of proving facts

sufficient to justify recusal. Denardo v. Municipality of

Anchorage, 974 F.2d 1200,1201(9' Cir.1992). While the Court

must accept the facts alleged as true, Willenbring v. United

States, 306 F.2d 944, 946 (9th Cir. 1962), the Court will not

base recusal on conclusory allegations. United States v. $292.

888.04 US. Currency, 54 F.3d 564, 566 (9"" Cir. 1995).

Il. DISCUSSION

Plaintiff claims that Judge Rosenblatt is biased against

him. The Court has reviewed all of the facts cited by Plaintiff

and the Court finds that none of the statements, orders, or

actions of Judge Rosenblatt justifies recusal in this case.

Specifically, Plaintiff claims that Judge Rosenblatt is biased

against him because he directed Plaintiff to only contact

counsel for Defendants instead of Defendants personally. Doc.

#25 at 4-5. Clearly, this is a ruling within the case of the type

A-15

that can rarely justify recusal. Additionally, nothing in Judge

Rosenblatt's order shows bias in favor of or against either party.

Such order certainly does not rise to the level of Plaintiffs

conclusory allegation that Judge Rosenblatt's order to Plaintiff

shows Judge Rosenblatt believes Plaintiff is an "unethical

lawyer."

Plaintiff also claims that Judge Rosenblatt is prejudiced

against him because Judge Rosenblatt advised Plaintiff that if

his current case is not substantially different from a previous

case he filed, Plaintiff may be subject to Rule 11 sanctions.

Doc. #25 at 5. Judge Rosenblatt's qualification of his statement

with “if“clearly shows that Judge Rosenblatt had not prejudged

the current case. Therefore, no prejudice or bias is shown.’

Plaintiff also alleges that Judge Rosenblatt's comments

regarding potential Rule [1 sanctions shows that Judge

Rosenblatt may intend to rely on an unpublished Ninth Circuit

opinion, which, Plaintiffclaims, shows a pro-defense bias. Doc.

#25-at 7. Reliance on an opinion of the Court of Appeals does

not show a bias in favor of either party. Additionally, as the

Court noted in Liteky, if Judge Rosenblatt does rely on opinions

‘ Though not directly relevant, Plaintiff complains

that Judge Rosenblatt referred to Rule tI, which Plaintiff

claims was pre judgment on Plaintiffs future response to

Defendant's Motion to Dismiss. Doc. #25 at 5. Plaintiff s

basis for this complaint is that Rule 11 only applies to

signatures on pleadings, and thus Judge Rosenblatt's

statement must have been referring to Plaintiff s to-be-filed

response to the defense motion to dismiss. This Court

assumes that Plaintiff signed his complaint, subject to Rule

11. Therefore, Plaintiff is mistaken that Judge Rosenblatt

must have been referring to his to-be-filed response because

Judge Rosenblatt could have been referring to the complaint.

A-16

formed in a prior proceeding, recusal would only be required if

such reliance shows a deep-seated favoritism or antagonism

that makes fair judgment impossible. There are no facts in this

case to support any suggestion of favoritism or antagonism.

Finally, and most importantly, Plaintiff does not allege that

Judge Rosenblatt has actually relied on any prior proceeding

yet. Plaintiff only speculates that Judge Rosenblatt may do so

in the future. Clearly a party's speculation regarding what a

Judge may do cannot form the basis for recusal.*

Plaintiff additionally makes some arguments regarding

Judge Rosenblatt's order in a different case in which Plaintiff

was a party. This Court does not sit as a court of appeals over

Judge Rosenblatt, and will not consider the merits or substance

of any of Judge Rosenblatt's prior orders. Plaintiff's entire

argument focuses on what Plaintiff believes are legal errors.

See Doc. #25 at 7-10. However, none of Plaintiff's arguments

shows bias or prejudice. Accordingly, recusal is not required

based on Judge Rosenblatt's orders issued in another case

involving Plaintiff. Plaintiff goes on to argue that Judge

Rosenblatt's order regarding the timing of discovery shows

favoritism toward Defendants. Doc. #25 at 10-13. As

indicated above, a court's ruling during a case typically can not

form the basis of a recusal motion. Additionally, none of the

facts alleged by Plaintiff (specifically that Judge Rosenblatt

* Though not directly relevant, Plaintiff implies that

Judge Rosenblatt intends to violate Circuit Rule 36-3 by

citing an unpublished opinion. While Plaintiff is correct that

Rule 36-3 generally prohibits the citation of unpublished

opinions, the Rule has exceptions. Specifically, 36-3(b)(i)

states that unpublished opinions can be cited for purposes of

law of the case, res judicata, or collateral estoppel. Thus, to

the extent any of these theories are applicable, citation to an

unpublished opinion is appropriate.

A-17

decided to stay discovery until resolution of a motion to

dismiss, which necessarily resulted in a stay of Plaintiff s

pending subpoena) shows any bias or prejudice. Thus, recusal

on this basis is not required.

In his reply, Plaintiff states, "Judge Rosenblatt's

self-imposed constitutional ignorance more than qualifies as the

kind of extreme legal favoritism that makes fair judgment of

the legal issues impossible." Doc. #30 at 2. Clearly this is a

request for this Court to review the substance and merits of

Judge Rosenblatt's orders in a previously filed case. This is a

matter for appeal, not for this Court. Further, Plaintiff has

already availed himself of the opportunity to appeal the order

in question. This is not a appropriate basis for a motion to

recuse as it cites no actual bias or prejudice, only Plaintiffs

disagreement with Judge Rosenblatt's legal analysis.

Plaintiff's additional allegation in his reply is that Judge

Rosenblatt is applying the procedural rules differently between

Plaintiff and Defendants. Doc. #30 at 4. Plaintiff has stated

that when Defendants' moved to exceed the page limit in filing

a motion, that request was immediately granted. Conversely,

according to Plaintiff, when Plaintiff requested to exceed the

page limit, no order was forthcoming (granting or denying the

request).

This Court's independent review of the docket in this

case shows that Plaintiff is correct. However, an important

intervening circumstance occurred between Defendants' request

and Plaintiffs request. The circumstance was that after

Defendants' request was granted, but before Plaintiff made his

request, Plaintiff advised Judge Rosenblatt that he intended to

move for recusal. Since Plaintiff advised Judge Rosenblatt that

he intended to move for recusal, the only order issued by Judge

Rosenblatt was the Order referring the Motion to Recuse to the

A-18

undersigned Judge. Thus, the Court does not find that such

action by Judge Rosenblatt shows anything but judicial

impartiality.

Moreover, this Court is not the appropriate forum to

review Judge Rosenblatt's decisions. This Court is only to

consider whether there is a bias or prejudice against Plaintiff.

This Court does not find that even if Judge Rosenblatt granted

a request to exceed page limit quickly with respect to one party,

but took longer to render a decision with respect to the other

party that such action shows bias or prejudice sufficient to

justify recusal.

Ill. CONCLUSION

Based on the foregoing, the Court has determined that

neither 28 U.S.C. § 144 nor 28 U.S.C. § 455 require the recusal

of Judge Rosenblatt in this case. Accordingly,

IT IS ORDERED that Plaintiff s Motion to Recuse Judge

Rosenblatt (Doc. #25) is denied;

IT IS FURTHER ORDERED that Defendant's Motion to Strike

Portions of Plaintiffs Motion to Recuse (Doc. #27) is denied as

the Court has addressed any issues raised therein in footnote 1.

DATED this 12 day of July, 2002.

s/James A. Tielborg

James A. Tielborg

United States District Judge

FILED

MAY21 1999

STATE BAR OF ARIZONA

BY s/Elena Farris

BEFORE THE PROBABLE CAUSE PANELIST

OF THE STATE BAR OF ARIZONA

IN THE MATTER OF A MEMBER _) No. 98-1005

OF THE STATE BAR OF ARIZONA,)

) Frederick &

David J. Gilchrist, Judy Dieterle

Bar No. 011492

INFORMAL

REPRIMAND,

) PROBATION

) ANDCOSTS

)

) ORDER OF

Respondent. )

)

The undersigned Probable Cause Panelist of the State

Bar, having reviewed this matter pursuant to Rule 53(b),

Ariz.R.S.Ct., finds that probable cause exists to believe that

respondent has violated Rule 42, Ariz.R.S.Ct., to wit:

You and Mr. Dieterle signed a fee agreement which included

a provision for a lien over the entire settlement of his claim.

However, at the time the agreement was signed the amount of

your legal fees was not quantifiable nor could you determine

what, if any, settlement would be reached. Once your client's

case settled you were entitled to a portion of that settlement; the

portion equal to your actual fees. As you are undoubtedly

aware, your Client disputed the amount you ultimately claimed

as your fee. In an effort to secure your fee without addressing

A-20

Mr. Dieterle's concerns, you orchestrated a plan which would

prevent the client from ever receiving any portion of his funds

without first paying your fee. By claiming a lien on the entire

settlement, an amount which was ten times the amount of your

fees, and preventing the distribution of any portion of those

funds, you violated E.R. 1.15.

IT IS THEREFORE ORDERED that:

(1) Pursuant to Rules 52(a)(5) and 53(b), Ariz.R.S.Ct.,

respondent is informally reprimanded for such conduct.

(2) Pursuant to Rules 52(a)(6) and 53(b), Ariz.R.S.Ct.,

respondent is hereby placed on probation under the following

terms and conditions:

(a) Respondent shall attend a one-day Professional

Enhancement Program and shall be responsible for the

attendance fee. Respondent must contact Yigael M. Cohen,

Director of Lawyer Regulation, State Bar of Arizona, (602)

340-7244, within 20 days from the date this order is mailed;

(b) The period of probation shall be in effect until such time

as respondent has completed the one-day Professional

Enhancement Program;

the terms of probation to the State Bar's Phoenix office:

(d) If respondent fulls to comply with any of the foregoing

conditions, and information thereof is received by the State

Bar, bar counsel shall file with the probable cause panelist a

Notice of Non-Compliance. The probable cause panelist shall

determine whether the conditions of probation have been

breached and, if so, to order appropriate action and response to

A-21

such breach. If there is an allegation that respondent has fulled

to comply with any of the foregoing conditions, the burden of

proof thereof shall be on the State Bar to prove non-compliance

by a preponderance of the evidence.

(3) Pursuant to Rules 52(a)5 and 54(k)4, this order will be

entered in the respondent's permanent record at the State Bar,

and pursuant to Rule 61(a)(2), is not confidential. It may also

be considered by a hearing officer or committee, the

Disciplinary Commission or the Supreme Court in |

recommending or imposing discipline in a subsequent

disciplinary proceeding against respondent.

IT IS FURTHER ORDERED, pursuant to Rule 52(a)(8),

Ariz.R.S.Ct., that the costs and expenses of these proceedings :

in the sum of $300 are imposed against respondent, payable

within twenty (20) days after receipt of this order.

DATED this 19 day of May, 1999.

s/Kirk v. Karman

Kirk v. Karman

Probable Cause Panelist

State Bar of Arizona

Copies mailed this 15" day

of June, 1999, to:

David J. Gilchrist

Attorney at Law

3523 Malina Place :

Kihei, HI 96753-9240

Yigael M. Cohen

Director of Lawyer Regulation

A-22

EEE oe

111 West Monroe, Suite 1800

Phoenix, AZ 85003

by: s/Donna J. Westfall

JNS:dfw

A-23

FILED

SEP 01 1999

STATE BAR OF ARIZONA

BY s/Elena Farris

BEFORE THE PROBABLE CAUSE PANELIST

OF THE STATE BAR OF ARIZONA

IN THE MATTER OF A MEMBER _) No. 98-1005

OF THE STATE BAR OF ARIZONA,)

) Frederick &

David J. Gilchrist, ) Judy Dieterle

Bar-No. 011492 )

) ORDER

) VACATING

Respondent. ) INFORMAL

) REPRIMAND,

) PROBATION

) AND COSTS

The undersigned Probable Cause Panelist of the State Bar,

having reviewed a request to vacate the Order of Informal

Reprimand, Probation and Costs, concludes that the Order of

Informal Reprimand, Probation and Costs entered in this matter |

on May 19, 1999 should be vacated for cause shown and in the

interest of justice, pursuant to Rule 55(1), Ariz.R.S.Ct.

IS THEREFORE ORDERED that the Order of Informal

Reprimand, Probation entered on May 19, 1999, is hereby

vacated.

IT IS FURTHER ORDERED that a separate Order of Informal

Reprimand, Probation and Costs be issued in this matter nunc

pro tunc to May 19, 1999.

DATED this I“ day of September, 1999,

s/Nicholas Wallwork

Nicholas Wallwork

Probable Cause Panelist

State Bar of Arizona

Copies mailed this 2™ day of

September, 1999, to:

David J. Gilchrist, Esq.

3523 Malina Place

Kihei, HI 96753-9240

by: s/J. Lundberg

INS:

A-25

FILED

SEP 01 1999

STATE BAR OF ARIZONA

BY s/Elena Farris

BEFORE THE PROBABLE CAUSE PANELIST

OF THE STATE BAR OF ARIZONA

IN THE MATTER OF A MEMBER _ ) No. 98-1005

OF THE STATE BAR OF ARIZONA,) :

) Frederick &

David J. Gilchrist, Judy Dieterle

Bar No. 011492

INFORMAL

REPRIMAND,

) PROBATION

) ANDCOSTS

) (NUNC PRO

) TUNC)

)

) ORDER OF

Respondent. )

)

The undersigned Probable Cause Panelist of the State

Bar, having reviewed this matter pursuant to Rule 53(b),

Ariz.R.S.Ct., finds that probable cause exists to believe that

respondent has violated Rule 42, Ariz.R.S.Ct., to wit:

You and Mr. Dieterle signed a fee agreement which included

a provision for a lien over the entire settlement of his claim.

However, at the time the agreement was signed the amount of

your legal fees was not quantifiable nor could you determine

what, if any, settlement would be reached. Once your client's

case settled you were entitled to a portion of that settlement; the

portion equal to your actual fees. As you are undoubtedly

aware, your client disputed the amount you ultimately claimed

A-26

as your fee. In an effort to secure your fee without addressing

Mr. Dieterle's concerns, you orchestrated a plan which would

prevent the client from ever receiving any portion of his funds

without first paying your fee. By claiming a lien on the entire

settlement, an amount which was ten times the amount of your

fees, and preventing the distribution of any portion of those

funds, you violated E.R. 1.15.

IT IS THEREFORE ORDERED that:

(1) Pursuant to Rules 52(a)(5) and 53(b), Ariz.R.S.Ct.,

respondent is informally reprimanded for such conduct.

(2) Pursuant to Rules 52(a)(6) and 53(b), Ariz.R.S.Ct.,

respondent is hereby placed on probation under the following

terms and conditions:

(a) Respondent shall attend a one-day Ethics Enhancement

Program. Respondent must contact Yigael M. Cohen, Director

of Lawyer Regulation, State Bar of Arizona, (602) 340-7250,

within 20 days from the date this order is mailed;

(b) The period of probation shall be in effect until such time

as respondent has completed the one-day Ethics Enhancement

Program.

Program within nine (9) months from the original order of May

19, 1999.

(d) If ‘respondent fails to comply. with the foregoing

conditions, or otherwise objects to any other terms of this order

within 20 days of the date this order is mailed, this order will

then be vacated and an order of probable cause shall be entered

pursuant to Rule 53(b)5, Ariz.R.S.Ct.

A-27

(3) Pursuant to Rules 52(a)5 and 54(k)4, this order will be

entered in the respondent's permanent record at the State Bar

and, pursuant to Rule 61(a)(2), is not confidential. It may also

be considered by a hearing officer or committee, the

Disciplinary Commission or the Supreme Court in

recommending or imposing discipline in a subsequent

disciplinary proceeding against respondent.

IT IS FURTHER ORDERED, pursuant to Rule 52(a)(8),

Ariz.R.S.Ct., that the costs and expenses of these proceedings

in the sum of $300.00 are imposed against respondent, payable

within twenty (20) days after receipt of this order. The State

Bar of Arizona has previously received respondent's payment

of $300.00.

THIS ORDER shall be entered nunc pro tunc to May 19, 1999.

DATED this |" day of September, 1999.

s/Nicholas J. Wallwork

Nicholas Wallwork

Probable Cause Panelist

State Bar of Arizona

Copies mailed/hand-delivered this

2™ day of September, 1999, to:

David J. Gilchrist, Esq.

3523 Malina Place

Kihei, Hawaii 96753-9240

Yigael M. Cohen

Director of Lawyer Regulation

State Bar of Arizona

111 West Monroe, Suite 1800

A-28

Phoenix, Arizona 85003-1742

by s/ J. Lundberg

JINS:jll

FILED

Oct 29 10 22 AM ‘99

K. MIYAMURA

CLERK SUPREME COURT

NO. 22785

IN THE SUPREME COURT OF THE STATE OF HAWAI'I

OFFICE OF DISCIPLINARY ) CONFIDENTIAL

COUNSEL, ) ODC 9-330-6160

)

Petitioner, )

vs. )

)

DAVID J. GILCHRIST, )

)

Respondent. )

ORDER

Upon consideration of the Office of Disciplinary

Counsel's ex parte petition for issuance of reciprocal discipline

notice under Rule 2.15(b) of the Rules of the Supreme Court of

the State of Hawai'i (RSCH), the memorandum, affidavits, and

exhibits thereto, Respondent Gilchrist's response to our

September 10, 1999 notice and order, and the record, it appears

(1) that on May19, 1999, the State Bar of Arizona informally

reprimanded Respondent David J. Gilchrist, and (2) RSCH

2.15(c) requires this court to impose the identical discipline

upon the attorney unless this court finds .that upon the face of

the record upon which the discipline is predicated it clearly

appears that (i) the Arizona procedure was so lacking in notice

or opportunity to be heard as to constitute a deprivation of due

A-30

process, or (11) there was such an infirmity of proof establishing

the misconduct as to give rise to the clear conviction that this

court could not, consistent with its duty, accept as final the

conclusion on that subject, or (iii) the misconduct established

warrants a substantially different discipline in this state. It

further appears that based on the record before united States,

there is no evidence that Respondent Gilchrist was ever in

possession of property in which both he and another person

claimed interests, as is required by E.R. 1.15 of the Arizona

Rules of Professional Conduct and Rule 1.15(a), (c), and (f) of

the Hawai'i Rules of Professional Conduct. Thus, we cannot,

consistent with our duty, accept the Arizona Bar's conclusion

that Respondent Gilchrist violated Arizona E.R. 1.15.

Therefore, IT IS HEREBY ORDERED that the Office of

Disciplinary Counsel's ex parte, petition is denied. pursuant to

RSCH 2.15(c).

DATED: Honolulu, Hawai'i, October 29, 1999.

s/Ronald T.Y. Moon

RONALD T.Y. MOON

Chief Justice

s/Robert G. Klein

ROBERT G. KLEIN

Associate Justice

s/Steven H. Levinson

STEVEN H. LEVINSON

Associate Justice -_—~

s/Paula A. Nakayama

PAULA A. NAKAYAMA

Associate Justice

A-31 ©

s/Mario R. Ramil

MARIO R. RAMIL

Associate Justice

A-32

CONSTITUTIONAL PROVISIONS

Article | § 10 of the Constitution of the United States

provides in pertinent part:

No state shall enter into any treaty, alliance, or

confederation; grant letters of marque and

reprisal; coin money; emit bills of credit; make

anything but gold and silver coin a tender in

payment of debts; pass any bill of attainder, ex

post facto law, or law impairing the obligation

of contracts, or grant any title of nobility.

The First Amendment of the Constitution of the United

States provides:

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the

Government for a redress of grievances.

The Fourteenth Amendment of the Constitution of the

United States provides in pertinent part:

All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

A-33

its jurisdiction the equal protection of the laws.

The United Nations’ Universal Declaration of Human

Rights includes the-following provision:

No one shall be held guilty of any penal offence

on account of any act or omission which did not

constitute a penal offence, under hational or

international law, at the time when it was

committed. Nor shall a heavier penalty be

imposed than the one that was applicable at the

time the penal offence was committed.

Universal Declaration of Human Rights, Preamble and Article

11, § 2 (1948). See also Norway Constitution, Article 97 (17

May 1814); Luxembourg Constitution, Article 14 (17 Oct

1868); Finland Constitution, Section 6a (17 July 1919);

Japan-Constitution, Article 39 (3 Nov 1946); South Korea

Constitution, Article 13 (17 July 1948); Kuweit C onstitution,

Article 32 (11 Nov 1962); Constitution of the Republic of

Singapore, Article 11, § 2 (16 September 1963); Yemen

Constitution, Article 81 (13 March 1973); Syria Constitution,

Article 30 (13 March 1973) Sweden Constitution, Article 10(1

January 1975); Portugal Constitution, Article 18 (2 April

1976); Iran Constitution, Article 169 (24 Oct 1979); Brazil

Constitution, Article XL (5 October 1988); Croatia

Constitution, Article 31 (Dec 1990); New Zealand Bill of

Rights Act 1990, (1990); Tunisia Constitution, Article 13,

(1991); Macedonia Constitution, Article 52, § 4 (17 November

1991); Romania Constitution, Article 15 (8 December 1991 );

Slovenia Constitution, Article 155 (23 December 1991 ); Congo

Constitution, Article 15 (15 March 1992); Yugoslavia

Constitution, Article 117 § | (27 April 1992): Paraguay

Constitution, Article 14 (20 June 1992);Estonia Constitution,

Article 23 (28 June 1992); Madagascar Constitution, Article 13

A-34

net eee ee

(19 August 1992); Angola Constitution, Article 36 §§ 3-4 (25

August 1992); Constitution of the Russian Federation, Article

54 (12 December 1993); Armenia Constitution, Article 42 (5

July 1995).

gence BES ae

STATUTES

42 U.S.C. § 1983 provides:

Civil action for deprivation of rights.

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress, except

that in any action brought against a judicial

officer for an act or omission taken in such

officer's judicial capacity, injunctive relief shall

not be granted unless a declaratory decree was

: violated or declaratory relief was unavailable.

For the purposes of this section, any Act of

Congress applicable exclusively to the District

of Columbia shall be considered to be a statute

of the District of Columbia.

PT Tr ms ae ™ i

The Ninth Circuit’s Rule 36-3 provides:

CITATION OF UNPUBLISHED DISPOSITIONS OR

ORDERS

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(a) Not Precedent : Unpublished dispositions and orders of this

Court are not binding precedent, except when relevant under

the doctrine of law of the case, res judicata, and collateral

estoppel.

(b) Citation : Unpublished dispositions and order of this Court

may not be cited to or by the courts of this circuit, except in the

following circumstances.

(i) They may be cited to this Court or to or by any other court

in this circuit when relevant under the doctrine of law of the

case, res judicata, or collateral estoppel.

(ii) They may be cited to this Court or by any other courts in

this circuit for factual purposes, such as to show double

jeopardy, sanctionable conduct, notice, entitlement to

attorneys’ fees, or the existence of a related case.

(111) They may be cited to this Court in a request to publish a

disposition or order made pursuant to Circuit Rule 36-4, or in

a petition for panel rehearing or rehearing en banc, in order to

demonstrate the existence of a conflict among opinions,

dispositions, or orders.

or order must be attached to the document in which it is cited,

as an appendix.

The Arizona quasi-criminal statute known as E.R. 1.15

SAFEKEEPING PROPERTY provides:

(a) A lawyer shall hold property of clients or

third persons that is in a lawyer's possession in

connection with a representation separate from

the lawyer's own property. Funds shall be kept

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EOS td ONE LTH tc.

I AS ies ae tae cape e poe Ty oe

in a separate account maintained in the state

where the lawyer's office is situated, or

elsewhere with the consent of the client or third

person. Other property shall be identified as

such and appropriately safeguarded. Complete

records of such account funds and other

property shall be kept by the lawyer and shall

be preserved for a period of five years after

termination of the representation.

(b) Upon receiving funds or other property in

which a client or third person has an interest, a

lawyer shall promptly notify the client or third

person. Except as stated in this rule or

otherwise permitted by law or by agreement

with the client, a lawyer shall promptly deliver

to the client or third person any funds or other

property that the client or third person is

entitled to receive and, upon request by the

client or third person, shall promptly render a

full accounting regarding such property.

lawyer is in possession of property in which

both the lawyer and another person claim

interests, the property shall be kept separate by

the lawyer until there is an accounting and

severance of their interests. If a dispute arises

concerning their respective interests, the portion

in dispute shall be kept separate by the lawyer

until the dispute is resolved.

The Arizona quasi-criminal law known as E.R. 4.2

COMMUNICATION WITH PERSON REPRESENTED BY

COUNSEL provides:

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In representing a client, a lawyer shall not

communicate about the subject of the

representation with a party the lawyer knows to

be represented by another lawyer in the matter,

unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.

Rule 54(1) of the Arizona Supreme Court provides:

Immunity From Civil Suit. Communications to

the court, state bar, commission, hearing

committees or hearing officers, mediators, the

peer review committee, monitors of the

Membership Assistance or Law Office

Management Assistance Programs, probable

cause panelists or bar counsel relating to lawyer

misconduct, lack of professionalism or

disability and testimony given in_ the

proceedings shall be absolutely privileged

conduct, and no civil action predicated thereon

may be instituted against any complainant or

witness. Members of the board, commission,

hearing committees or hearing officers,

mediators, the peer review committee, monitors

of the Membership Assistance or Law Office

Management Assistance Programs, probable

cause panelists, bar counsel and staff shall be

immune from suit for any conduct in the course

of their official duties.

Rule 54(1), Ariz.R.S.Ct. (Emphasis added).

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PLEASE DON'T CITE THIS!

Why We Don't Allow Citation to Unpublished Opinions

By Alex Kozinski and Stephen Reinhardt

Like other courts of appeals, the Ninth Circuit issues two types

of merits decisions: opinions and memorandum dispositions,

the latter affectionately known as in memdispo. Opinions

contain a full-blown discussion of legal issues and are certified

for publication in the Federal Reporter. Once final, they are

binding an all federal judges in the circuit- district, bankruptcy,

magistrate, administrative, and appellate. Until superseded by

an en banc or Supreme Court opinion, they are law of the

circuit and may be cited freely; indeed, if they are directly on

point, they must be cited.

The rule is different for memdispo. Pursuant to Ninth Circuit

Rule 36-3, memdispo are not published in the Federal Reporter,

nor do they have precedential value. Although memdispo can

be found on Westlaw and Lexis, they may not be cited. So far

as Ninth Circuit law is concerned, memdispo are a nullity.

Few procedural rules have generated as much can control as the

rule prohibiting citation of memdispo. At bench and bar

meetings, lawyers complain at length about being denied this

fertile source of authority. Our Advisory Committee on Rules

of Practice and Procedure, which is composed mostly of

lawyers who practice before the court, regularly proposes that

memdispo be citable. When we refuse, lawyers grumble that we

just don't understand their problems.

In fact, it's the lawyers who don't understand our problems.

Court of appeals judges perform two related but separate tasks.

The first is error-correction: We review several thousand cases

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every year to ensure that the law is applied correctly by the

lower courts, as well as by the many administrative agencies

whose decisions we review. The second is development of the

circuit's law: We write opinions that announce new rules of law

or extensions of existing rules.

Writing a memdispo is straightforward. After carefully

reviewing the briefs and record, we can succinctly explain who

won, who lost, and why. We need not state the facts, as the

parties already know them; nor need we announce a rule

general enough to apply to future cases. This can often be

accomplished in a few sentences with citations to two or three

key cases.

Writing an opinion is much harder. The facts must be set forth

in sufficient detail so lawyers and judges unfamiliar with the

case can understand the question presented. At the same time,

it is important to omit irrelevant facts that could form a

spurious ground for distinguishing the opinion. The legal

discussion must be focused enough to dispose of the case

before us yet broad enough to provide useful guidance in future

cases. Because we normally write opinions where the law is

unclear, we must explain why we are adopting one rule and

rejecting others. We most also make sure that the new rule does

not conflict with precedent or sweep beyond the questions

fairly presented.

While a memdispo can often be prepared in a few hours, an

opinion generally takes many days (often weeks, sometimes

months) of drafting, editing, polishing, revising. Frequently,

this process brings to light new issues, calling for further

research, which, in turn, may send the author back to square

one. In short, writing an opinion is a tough, delicate, exacting,

time-consuming process. Circuit judges devote something like

half their time, and their clerks' time to cases in which they

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write opinions, dissents, or concurrences.

Once an opinion is circulated, the judges on the panel and their

clerks scrutinize it very closely. Often they suggest

modifications, deletions, or additions. It is quite common for

judges to exchange lengthy memoranda about a proposed

opinion. Sometimes, differences can't be ironed out.

precipitating a concurrence or dissent. By contrast, the phrasing

(as opposed to the result) of a memdispo is given relatively

little scrutiny by the other chambers; dissents and concurrences

are rare.

Opinions take up a disproportionate share of the court's time

even after they are filed. Slip opinions are circulated to all

chambers, and many judges and law clerks review them for

conflicts and errors. Petitions for rehearing en banc are filed in

about three-quarters of the published cases. Based on the

petition and an independent review of the case, off-panel judges

frequently point out problems with opinions, such as conflicts

with circuit or Supreme Court authority. A panel may modify

its opinion; if it does not, the objecting judge may call for a

vote to take the case en banc. In 1999 there were 44 en banc

calls, 21 of which were successful.

Successful or not, an en banc call consumes substantial court

resources. The judge making the call circulates one or more

memos criticizing the opinion, and the panel must respond.

Frequently, other judges circulate memoranda supporting or

opposing the en banc call. Many of these memos are as

complex and extensive as the opinion itself. Before the vote,

every active judge must consider all of these memos, along

with the panel's opinion, any separate opinions, the petition for

rehearing, and the response thereto. The process can take

months to complete.

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If the case goes en banc, eleven judges must make their way to

San Francisco or Pasadena to hear oral argument and confer.

Because the deliberative process is much more complicated for

a panel of eleven than a panel of three, hammering out an en

banc opinion is even more difficult and time-consuming than

writing an ordinary panel opinion.

Now consider the numbers. During calendar year 1999, the

Ninth Circuit decided some 4,500 cases on the merits,

approximately 700 by opinion and 3,800 by memdispo. Each

active judge heard 450 cases as part of a three-judge panel and

had writing responsibility in a third of those cases. That works

out to an average of 150 dispositions - 20 Opinions and 130

memdispos - per judge. In addition, each of us was required to

review, comment on, and eventually join or dissent from 40

opinions and 260 memdispos circulated by other judges with

whom we sat.

Writing 20 opinions a year is like writing a law review article

every two and a half weeks, joining 40 Opinions is akin to

commenting extensively once a week or so on articles written

by others. Just from the numbers, it's obvious that memdispos

get written a lot faster than opinions- about one every other

day. It is also obvious that explaining to the parties who wins.

who loses, and why takes far less time than preparing an

opinion that will serve as precedent throughout the circuit and

beyond. Moreover, we seldom review the memdispos of other

panels or take them en banc. Not worrying about making law

in 3,800 memdispos frees us to concentrate on those

dispositions that affect others besides the parties to the appeal

- the published opinions.

If memdispo could be cited as precedent, conscientious judges

would have to pay much closer attention to their precise

wording. Language that might be adequate when applied to a

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particular case might well be unacceptable if applied to future

cases raising from different fact patterns. And, though three

judges might agree on the outcome of the case before them,

they might not agree on the precise reasoning or the rule to be

applied to future cases. Unpublished concurrences and dissents

would become much more common, as individual judges would

feel obligated to clarify their differences with the majority,

even when those differences had no bearing on the case before

them. In short, we would have to start treating the 130

memdispo for which we were responsible, and the 260

memdispo we receive from other judges, as mini-opinions. We

would also have to pay much closer attention to the memdispo

written by judges on other panels - at the rate of 10 a day.

Obviously, it would be impossible to do this without neglecting

our other responsibilities. We write opinions in only 15 percent

of the cases already and may well have to reduce that number.

Or we could write opinions that are less carefully reasoned. Or

spend less time keeping the law of the circuit consistent

through the en banc process. Or reduce our memdispo to

one-word judgement orders, as have other circuits. None of

these are palatable alternatives, yet something would have to

give.

Lawyers argue that we need not change our internal practices,

that we should just keep doing what we're doing but let

memdispo be cited as precedent. But what does precedent

mean? Surely it suggests that the three judges on a panel

subscribe not merely to the result but also to the phrasing of the

disposition.

With memdispo, this is simply not true. Most are drafted by

law clerks with relatively few edits from the judges. Fully 40

percent of our memdispo are in screening cases, which are

prepared by our central staff. Every month, three judges meet

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with the staff attorneys who present us with the briefs, records,

and proposed memdispo in 100 to 150 screening cases. If we

unanimously agree chat a case can be resolved without oral

argument, we make sure the results is correct, but we seldom

edit the memdispo, much less rewrite it from scratch. Is it

because the memdispo could not be improved by further

judicial attention? No, it's because the result is what matters in

those cases, not the precise wording of the disposition. Any

refinements in language would cost valuable time yet make

little difference to the parties. Using the language of a

memdispo to predict how the court would decide a different

case would be highly misleading.

We are a large court with many judges. Keeping the law of the

circuit clear and consistent is a full-time job, even without

having to worry about the thousands of unpublished

dispositions we issue every year. Trying to extract from

memdispo a precedential value that we didn't put into them may

give some lawyers an undeserved advantage in a few cases, but

it would also damage the court in important and permanent

ways. Based on our combined three decades of experience as

Ninth Circuit judges, we can say with confidence that citation

of memdispo is an uncommonly bad idea. We urge lawyers to

drop it once and for all.

Judge Reinhardt has served on the Ninth U.S. Circuit Court of

Appeals since 1980, Judge Kozinski since 1985.

Alex Kozinski and Stephen Reinhardt, California Lawyer, June,

2000 (Emphasis added).

For Immediate Release

Contact: Matthew Silverman, Director of Communications

Phone: (602) 340-7226 / Pager: (602) 251-7965

Kirk v. Karman Takes Over Leadership of State Bar of Arizona

June 13, 2000 (Phoenix) - Kirk v. Karman, an attorney whose

law practice serves people in Pinal County, is about to become

the new President of the State Bar of Arizona. Karman's

one-year term officially begins June 17, 2000 during the State

Bar's annual convention.

As a sole practitioner, Karman runs The Karman Firm, where

his legal practice focuses on family law, criminal law and civil

litigation. The Karman name is well known throughout Pinal

County where Kirk Karman and his father Howard have been

practicing for more than 65 years, combined.

Kirk Karman is an active leader in the legal profession. His

service on the State Bar Board of Governors dates back to

1992. He is currently Chair of the State Bar Personnel

Committee and previously served as a Probable Cause Panelist

in the State Bar's discipline system.

Mr. Karman is a former President of the Pinal County Bar

Association (1986), served on the Board of Governors of the

Arizona Association for Criminal Justice (1989-1990), was a

member of the State Bar's Board of Legal Specialization

(1988-1992) and also served as a Regional Coordinator of the

1986 Arizona High School Mock Trial Program.

Kirk learned some of his exceptional leadership abilities from

his father. Howard Karman was President of the State Bar of

Arizona from 1971 to 1972 and President of the Arizona Bar

Foundation from 1984 to 1985. The Karman's are the third

father-son team in State Bar history.

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A Case Grande, Arizona native, Kirk Karman earned his law

degree from the University of Arizona College of Law.

http://www.azbar.org/StateBarInfo/prsc.cfm?Releasel D=35

"Being afraid to do the right thing because you want to get

re-elected is a valid concern, but that is not always the best way

to help this organization succeed." President Kirk v. Karman,

Arizona Attorney, July 2000.

“This is where we are with MDP. If we stick our heads in the

sand we will be late and have a big problem. In the future

looking back, we will think MDP is a normal practice of law

just like computers are a part of the practice of law now. If we

don't get started, however, we will get left behind and someone

else will offer these services. And, of course, I'm interested in

lawyers being successful. That is what the State of Arizona is

here for.” President Kirk v. Karman Arizona Attorney, July

2000.

“I've always enjoyed criminal cases the most, probably

because | get a chance to put on a show. I had a client who

walked into a convenience store and fatally shot the store clerk.

He confessed and was charged with first-degree murder. He

was facing the death penalty. At trial, | got his confession

suppressed and convinced the jury that he was not guilty. It

took the jury only 12 minutes to leave the courtroom, go into

the jury room, vote and return to the courtroom to announce the

verdict.” President Kirk v. Karman, Arizona Business Gazette,

August 31, 2000.

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SR RII PAN eh AY

RE a ee aR ee

;

“Being a lawyer has changed dramatically over the last 20

years... . The result is a deterioration of lawyer behavior and

the public perception of lawyers.” President Kirk v. Karman,

Arizona Attorney, August/September 2000.

“{M Jost lawyers are aware that the State Bar of Arizona has

improved its discipline system to the point that our system is

the best in the nation.” President Kirk v. Karman, Arizona

Attorney, August/September 2000.

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Media E-Center

For Immediate Release

Contact: Matt Silverman (602)340-7226, pager (602) 251-7965

Nicholas J. Wallwork,

Leading Phoenix Lawyer,

To Become State Bar of Arizona President

June 08, 2001 (PHOENIX) — Nicholas J. Wallwork, managing

shareholder of the Phoenix law firm Beshears Muchmore

Wallwork, will become president of the State Bar of Arizona

June 15 at the State Bar of Arizona’s annual convention.

As president, Wallwork will oversee the State Bar’s 29-

member Board of Governors and work with the Arizona

Supreme Court in establishing policies and procedures for the

oversight of the legal profession in Arizona. One of the Bar’s

top priorities is promoting a just society under law and

supporting attorneys so they can provide clients a strong voice

in the justice system. Wallwork will use his leadership position

to emphasize the profession’s core values, including integrity,

independence, professionalism and a commitment to clients.

Wallwork is highly regarded as a strong and capable leader,

well-respected by both the bench and bar in Arizona. He has

extensive professional experience in civil litigation, especially

of complex and class action cases, including disputes involving

technology and commercial matters. He also practices in

environmental and toxic tort law and is past chair of the State

Bar's Environmental & Natural Resources Law Section and

editor in chief of the Arizona Environmental Law Manual.

Recognized for his expertise in technology law and the use of

technology to manage complex legal matters, Wallwork has

written and spoken extensively and served in numerous

leadership positions in those areas. He is the founding Chair of

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the State Bar of Arizona's Internet, E-commerce & Technology

Law section, a longtime member of the State Bar's Technology

Task Force and a past member of the Supreme Court's

Commission on Technology.

Wallwork graduated from the University of Virginia School of

Law. He has lived in Arizona since 1983 with his wife and two

children.

http://www.azbar.org/StatéBarInfo/prsc.cfm?Releasel D=78

A-49:

THE MAJESTY OF THE LAW, circa 1803

“Why does a judge swear to discharge his duties

agreeably to the constitution of the United States if that

constitution forms no rule for his government? If it is closed

upon him, and cannot be inspected by him? If such be the real

state of things, this is worse than solemn mockery. To

prescribe, or to take this oath, becomes equally a crime.”

“The judicial power of the United States is extended to

all cases arising under the constitution. Could it be the

intention of those who gave this power to say that in using it

the constitution should not be looked into? That a case arising

under the constitution should be decided without examining the

instrument under which it arises? This is too extravagant to be

maintained.”

Marbury v. Madison, | Cranch 137 (U.S. 1803).

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Tei PRN ie yy gale tne ARB OREN stip spices

Paes Re

PM alte hse

THE MAJESTY OF THE LAW, circa 2003

“Because the court concludes that it has no jurisdiction

to consider the plaintiff's claims, it is axiomatic that it may not

reach the merits of any of the plaintiff's claims, including his

federal constitutional claims.” Appendix, p. 7, n. 3.

Paul G. Rosenblatt

federal judge

Sandra Day O’Connor Courthouse

District of Arizona

“He really served his country in amazing ways.”

“He was a major figure in American history.”

Sandra Day O’Connor

federal judge

United States Supreme Court

(on Chief Justice John Marshall)

BookTv, C-SPAN2, April 9, 2003.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.