# Petition for Writ of Certiorari — Gilchrist v. Karman

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 875

## Text

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No. "
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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May lower courts rely on unpublished case law, to the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ra May lower courts rely on unpublished case law, to the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A. Unpublished Ninth Circuit decisions.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B. Unpublished District Court decisions.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? ...........--- How state case law can overwrite a federal law
written at a Constitutional Convention is unclear.

8

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).

9

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.

10

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.

1]

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

12

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)

(c) (no change)

(d) A lawyer shall not enter into an agreement for
services that contains a lien securing payment.

13

_ 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.

14

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.

15

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,

16

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

17

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

18

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.

19

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

20

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.
3.

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).

21

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.

22

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.

23

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).

24

a

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?

25

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

26

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.

27

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.

28

ee

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

'
i

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

V.

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;

(c) Respondent shall report, in writing, his compliance with
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

es
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.

(c) Respondent shall attend the Ethics Enhancement
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

A-35

(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.

(c) Attach Copy : A copy of any cited unpublished disposition
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

A-36

© ELE

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.

(c) When in the course of representation a
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:

A-37 °

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).

A-38

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

A-39 |

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

A-40

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.

A-41

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

A-42

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

A-43

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1806%3A1. Public record. Not legal advice.