Petition for Writ of Certiorari — G. H. M. M. v. Florida Board of Bar Examiners (No. 06-1216)

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Suprame Court, U.S.

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D 96121 6mar -5 2007

No.

CE OE LS eK

IN THE

Supreme Court of the United States

G.M.H, PETITIONER

FLORIDA BOARD OF BAR EXAMINERS

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

PETITION FOR WRIT OF CERTIORARI

GREGORY M. HUNSUCKER

Counsel of Record

HUNSUCKER LAW FIRM, PLLC

1020 North Gloster Street, No, 257

Tupelo, Mississippi 38804

662.422.6436

Attorney for Petitioner

CURRY & TAYLOR @® WASH O.C. @ (202) 393-4141 @ USSCINFO.cOM

Se

QUESTIONS PRESENTED

May a State deny a multi-jurisdiction attorney-

applicant, who passed that-State’s bar examinations

and is admitted in the highest court of the land, the

right to practice law in its courts and federal courts

situated therein?

May a State deny admission to a multi-

jurisdiction attorney-applicant because of a single

federal lawsuit filed to vindicate matters the State

delayed his admission to investigate?

May a State second-guess a parental decision,

made after consulting a psychiatrist, a psychologist and

three pastors, in a bar character and fitness review?

May a State require a trial by psychiatrist of

unproven allegations as a condition of processing the

application of a multi-jurisdiction attorney-applicant

with no prior mental health history?

May a State delay a due process hearing so long

it retires an application under its rules, effectively

punishing the “foreign” applicant fifteen times more

severely than its own local Bar members for the same

alleged action, and then require a new application and

fees for further “processing”?

i

TABLE OF CONTENTS

QUESTIONS PRESENTED..........ccccccscscosesessosecessesesecseees i

PRE Oe gee ieee ctitesineetesneeseseesvsecevenceneeee il

TABLE, OP BUG rere ee attata estectsnecrerevesevesveceovecescere iv

OPP TIN Die Ber i ent leat eetlencheeniccccmrereccceecnceevers 1

SURES 2 Ar ade ilidanidieahssienieveneceenevevenese 1

CONSTITUTIONAL AND STATUTORY

PROV TS IOI B20 ¥ rie 0 ititrcsseesssssvsecceessessvccnsscvseerczcecosees 2

STATEMENT OF THE CASE. ..ccercssccccscocscssscecesesesesesese 2

i. FPeRCU CUR BORN sldeettctteeseseersenvnseccecceesccevecacere 3

1S. FI nc cesscseee 7

REASONS FOR GRANTING THE WRIT.................. 13

A. A State cannot arbitrarily deny a multi-

jurisdiction attorney, who passed the State’s bar

examinations and is admitted in the highest court of

the land, the right to practice law... 14

B. A State cannot arbitrarily exclude attorneys

from the State Bar for exercising constitutional

TAG TE A, cascades abnlinneinewreveecenceecee 15

1. Denying bar admission for filing a single

lawsuit violates the First and Fourteenth

PSO ii imines ae 17

var

2. Conducting a trial by psychiatrist of unproven

allegations as part of a bar character review

violates the Ninth and Fourteenth Amendments.

3. Second guessing a parental decision, vetted

with a psychiatrist, psychologist and three

pastors, in a bar character review is

constitutionally impermissible. .................ceses0e0- 22

C. Denying due process so long that a bar

application is rendered “stale” and retired under

State rules, thereby substantively punishing the

“foreign” attorney fifteen times more than its own

attorneys for the same alleged act, violates the

Fourteenth Amendment, ...........-cccocecscscscececcssssesesocese 23

D. Denying bar admission to a multi-jurisdiction

attorney-applicant when no_ reasonable man

reviewing the evidence can fairly find substantial

doubts about the applicant’s honesty, fairness and

respect for others and for the laws of the state and

nation, violates the Fourteenth Amendment. ........ 25

CARDONE LS MONEY eniccubiispussiissdeiibiealaiibatisiiciedeiie Cecciea aaa ie 27

w

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS

oe OW | a eS Seca 14

Pe es UN OW ciate ctpiiasiiltaiicaiicesabesuie, 2,15

Fe SITs MAMI Te ciasincsdteshscestiindceinicctiesindhnientsien 2,17

Ba es III BT cciccictecesinstbincncdiniocsieoenossisensbieieniin 2,19

U.S. CONST. AMEND. XIV, SECT. 1.........ccccscsceccscsscercore 2,15

BF ic Rs Rs tic PN i cniciniiscininictnrcinineselciiicinaianans 20

STATUTES

eS eh cM Ae eee Se PSAs Ea Ee 2,15

ae Sante AE TID sinisnibacitbiteciethsaiihcthaciiaiascebbaaniaiipeitcbnnbalitiatais 1

Sati IE SII issdapsecescdnetecensciescsibtdntcirecnceaaninanisa 10

CASES

Addington v. Texas, 441 U.S. 418 (1979) wees 19

Armstrong v. Manzo, 380 U.S. 545 (1965) eee. 24

Baird v. State Bar of Aiz., 401 U.S. 1 (1971)....... passim

Barry v. Barchi, 443 U.S. 55 (1979) .....ccscsccccsssscsesecceseeee 24

BE & K Construction v.N.L.R.B., 536 U.S. 516 (2002) 18

Beli v. Nat'l Republican Cong. Comm., 187 F.Supp. 60

SR FERRE, Ce ONT OMe OP Lae IO 10

Bill Johnson’s Restaurants, Inc. v. N.L.R.B., 461 U.S.

PR I itieieishasiseahcilcieai etn ta Ms 18

Clark v. Virginia Bd. of Bar Examiners, 880 F.Supp.

Freee Mk: Me isisivncassicnecdeiis cipal piidahdtiiisnsdbaaiiiniishti 19

v

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532

ISPr Or isieteiaiesiddeahalicelcaesicisiniibaiete slike inbsnloaiicbdaliscebinebaticaiiasiosccices 24

De Jonge v. Oregon, 299 U.S. 353 (1987) cecccccesscsssesssseeoe 17

Ellen S. v. Florida Bd. of Bar Examiners, 859 F.Supp.

NPY PI GUI siciiitcssiceisuducedepussincnie iccessetntientiasicnisees: 19

Ex parte Garland, 71 U.S. 333 (1866) .sscsssssssssssesseen 14

Exxon Mobil Corp. v. Saudi Basic Industries Corp.,

Re 0 Se TI wicickciciiibiseiithbabeckpaaiecdsoeiciiaia cc ics 11, 18

Fla. Bar v. Committe, 916 So.2d 741 (Fla. 2005).......... 25

Fla. Bar v. Kelly, 813 So.2d 85 (Fla. 2002) ..........ccccec00. 25

Fla. Bar v. Rapoport, 845 So.2d 874 (Fla. 2008) ........... 15

Fla. Bar v. Richardson, 591 So.2d 908 (Fla. 1991)....... 25

Fla. Bar v. Walton, 2006 WL 3627029 (Fla. 2006)........ 25

Frazier v. Heebe, 482 U.S. 641 (1987) ...cccccccccsscsssssesceseees 15

Griswold v. Connecticut, 381 U.S. 479 (1965) ceccccccoceoee- 19

Honzawa v. Honzawa, 268 A.D.2d 327 (N.Y. App. Div.

2000), 309 A.D.2d 629 (N.Y. App. Div. 2003)................. 10

In re G'dianship of Browning, 568 So.2d 4 (Fla. 1990) 20

In re Petition of Frickey, 1994 WL 183523 (Minn. 1994)

iisiesndliebsscoiscalliabsieidcineaepeailieaadesniiadsiltaieessniestessebsipubcdihenigielanmbseiniiiwnais 19

In re T.R., 731 A.2d 1276 (Pa. 1999) ......cccccccoceccecececescere 19

Johnson v. Avery, 393 U.S. 483 (1969) 0... .cececccceseeceeees 17

Konigsberg v. The State Bar of California, 353 U.S. 252

ay Ud eiainisidarticailntiialig cites baicecdaddaimpiadoddions 1, 15, 16, 17, 26

Lambert v. Wise, Philadelphia, Pa., Ct. C.P. Nos. 2988,

PIS, ZZ (Ang. 14, 2002) -...csnnenenccoriovcossnscscsserenseensearenser 10

Leclerc v. Webb, 127 S.Ct. 344 (2006) (No. 06-11)......... 14

v1

Lewis v. Winzenreid, 435 S.E.2d 602 (Ga. 1998)........... 10

Long Beach City Employees Assoc. v. City of Long

BOCK, TID FB GOD (1GGS) .cciceceivevecccescorscstvngecesvsniententeniens 19

Matter of Respondent B, 1991 WL 63245 (Cal. Bar Ct.

aD ccsiescieichacisvsitvisisecesaiehaitisitiasipiniecipciainiiatinbadeancaliiaiait 19

Matter of The Florida Bar, 338 So.2d 205 (Fla. nay 20

Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) ....

New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 17

Parham v. J.R., 442 U.S. 584 (1979).......ccccecssscscsscsesees 18

Pitman v. Pittman-Grayson, 149 F.3d 111 (2d Cir.

FUP cvinienesiiinwin nvenssevsssenessnssuseseseusscnsensennssasconesnecseceneseneseeseecs 11

Robinson v. Becker, 595 S.E.2d 319 (Ga. App. 2004) ... 10

Schware v. Board of Bar Examiners, 353 U.S. 232

GTPEPE? <. aukcbicusspronitdiniidiubuslieniesanesinstateignabealachaionibissaiina’ 1, 16, 23

Sinclair Refining Co. v. Jenkins Petroleum Process

Ss ee Fee: IIE RIO wincccsusiscieseshicbsbaiecbamlllasaniab 10

Singletary v. Costello, 665 So.2d 1099 (Fla. 4th DCA

ICS SLT ME RC DEN NE ee EN NDI 20

Smith v. Schlesinger, 513 F.2d 462 (D.C. Cir. 1975)..... 19

Sperry v. State of Fla. ex rel. Fla. Bar, 373 U.S. 379

PT isvisssstichesuiintsineteiccnihnesiticheseinia ulgmeiusconkiabeaabiiabeslednibetabaibas 15

Stump v. Sparkman, 435 U.S. 349 (1978) ...cccseeccceseeees 10

Supreme Court of New Hampshire v. Piper, 470 US.

Sy ar UT sisiceenstirelianticssncvntesiniseihaicanieiaseecuidineseitipmaaciaatiadiiesabaaiceaias 14

Troxel v. Granville, 530 U.S. 57 (2000) oo... ecccceeeeeeee 22

U.S. Petition to Amend Rule 38(a), No. R -06- 0002 (Az.

ed 14

vit

United Mine Workers of America, Dist. 12 v. Illinois

State Bar Ass’n, 389 U.S. 217 (1967) .....cccccccccccssscceseseeeee 17

Waliace v. Calogero, 127 S.Ct. 344 (2006) (No. 05-1645)

nsesnasiesetinnanicelaseesichdaiaiiseabaabiaeticlmantiiitiakieiiiiiaiiianiaiaiciinitaaicaiis 14

West Virginia State Board of Education v. Barnette,

ST Pats GIT CI eansicsieciaichniaiidercaia ar te 22

Westmoreland v. CBS, Inc., 596 F. Supp. 1170 (S.D.

| ES LE TRIE Ee POET Wee Ie aE 10

Willner v. Committee on Character and Fitness, 373

RSC MORES at SEV RN IT TT 1,21

WJLA-TV »v. Levin, 564 S.E.2d 383 (W.Va. 2002)........ 10

RULES

Lif = fa 3 Sy AER eeRpR MME Un tera tan ent Le NoMA eae TANT eS 13

gh Fe ST yy Peni lemme Te hres 1

gS, pS 6 7 RN en ONE SE COR nS 12

UA. Pets We nihinidiiamcienidli de 13

OTHER AUTHORITIES

Bruce J. Ennis & Thomas R. Litwack, Psychiatry and

the Presumption of Expertise: Flipping Coins in the

Courtroom, 62 Cal. L. Rev. 693 (1974)....ccccccccosscsseseseoeee 19

Carole Silver, Regulatory Mismatch in the

International Market for Legal Services, 23 NW. J.

Int’l L. & Bus. 487 (2003) seepaeiinnecssitenapnuiiiovosnianseitienbiaaiaies 14

Deborah L. Rhode, Moral Character as a Professional

Credential, 94 Yale L.J. 491, 581-82 (1985) ....cccccecccscoee. 19

viii

Final Report a. . recommendations of the Supreme

Court Select Committee to Study the Florida Board of

a I CI iainveericinenseiasbsinsctichsistontsiitirtocinnssitsinins 21

Hearings on Psychological Testing Procedures and the

Rights of Federal Employees Before the Subcom. on

Constitutional Rights of the Senate Com. on the

Judiciary, 89th Cong., Ist Sess. (1965) .......ssssessesseesee 19

JAY ZISKIN, COPING WITH PSYCHIATRIC AND

PSYCHOLOGICAL TESTIMONY 1-63 (3D ED. 1981)........... 19

Jon Bauer, The Character of the Questions and the

Fitness of the Process: Mental Health, Bar Admissions

and the Americans with Disabilities Act, 49 UCLA

TEE Ppiiiciiciavesiidnsciteica shasta ccnsiebioadinostonashionconnilad 19

Laurel S. Terry, Lawyers, GATS, and the WTO

Accounting Disciplines, 22 Penn. St. Int’l. L. Rev. 695

Te Niaciniishasestasscidhslihcncnienitelabiibehaeiielinitisicticasaliuiastigeinasioabesstie 14

Sy Ca ee, I i aac ceiceidncdiesineiecsipipascndacenee 18

gg _ FERRIER ZOD YRS APT CRETE OR PO 18

NIE RI sadisatinsicecsiacistegicheiinstiialsboesnetbsinislindincbacruainci 23

Thomas Pobjecky, Everything You Wanted to Know

About Bar Admissions and Psychiatric Problems But

Were Too Paranoid to Ask, The Bar Examiner (1989) 19

Thomas Pobjecky, The Demands of Due Process in Bar

Admission Proceedings, The Bar Examiner (1996)

United States Department of Commerce, Bureau of

Economic Analysis, Private Services Trade by Type,

NT siresbiidienihasdicisbinnpastescbiacodaisesecsobdhiniasndilendinaienlanidesieneais 14

1

OPINIONS BELOW

The Florida Supreme Court’s October 6, 2006

two-sentence confidential order is unreported and

reprinted in the Appendix at la. The Board’s June 1,

2005 two-sentence confidential order is unreported and

reprinted in the Appendix at 2a.!

JURISDICTION

Jurisdiction for review of the actions of the

Board and the Florida Supreme Court,? which decided

important federal questions in a way that conflicts with

decisions of this Court, including Schware v. Board of

Bar Examiners, 353 U.S. 232 (1957), Konigsberg v. The

State Bar of California, 353 U.S. 252 (1957), Baird v.

State Bar of Ariz., 401 U.S. 1 (1971) and Willner v.

Committee on Character & Fitness, 373 U.S. 96 (1963)

and other decisions set forth below, is proper under 28

U.S.C. 1257(a).*

‘Proceedings below are confidential under FL.S.CT.R.A.B. 1-61,

and include matters under seal and confidential by court order.

*The constitutional claims made herein (except the claim of right of

an attorney to practice law in Florida federal courts after passing

the bar examination, but before admission to the Florida Bar) were

raised in the June 2006 Petition, the April 2005 Motion to Dismiss,

R3Supp.1, T2005, 134, and the February 2005 Answer and

Defenses. R3, T15. Citations to the 2,200-plus page record in the

Florida Supreme Court: R_T_I_(R=volume, T=tab, and I=item as

indexed in each tab).

°The Honorable Clarence Thomas, Associate Justice of the

Supreme Court of the United States and Circuit Justice of the

Eleventh Circuit, extended the time in which to file a petition for

certiorari up to and including March 5, 2007.

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This Constitution, and the Laws of the United

States ... shall be the supreme Law of the Land; and the

Judges in every State shall be bound thereby, any Thing

in the Constitution or Laws of any state to the Contrary

notwithstanding. U.S. CONST. ART. VI.

Congress shall make no law . . . prohibiting the

free exercise [of religion]; or abridging the freedom of

speech, or of .. . the right of the people . . . to petition the

Government for a redress of grievances. U.S. CONST.

AMEND. I.

The enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage others

retained by the people. U.S. CONST. AMEND. IX.

No State shall make or enforce any law which

shall . .. deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

U.S. CONST. AMEND. XIV, SECT. 1.

The Supreme Court shall have the power to

prescribe general rules of practice and procedure and

rules of evidence for cases in the United States district

courts ... and courts of appeals. 28 U.S.C. § 2072(a).

STATEMENT OF THE CASE

45 months have slogged away since the multi-

jurisdiction attorney-applicant (“Abe” herein) filed his

application for admission to the Florida Bar in May

3

2003. R3Supp.2, T2. The Board has failed to provide

Abe with a full due process hearing, substantively

denying him admission. The Board asserts that a

federal lawsuit filed by Abe, R3Supp.2, T6, as a direct

result of the Board’s insistence that Abe prove his

innocence of unproven allegations, is grounds to deny

him admission. R3, T20.

A. Factual Background

Since graduating Order of the Coif from a top

tier law school in 1996, R3, T9,4 Abe’s character and

fitness has been vetted favorably by the National

Conference of Bar Examiners (1996, 2002) and by an

independent State Bar investigation (2002). R5, T3, 4.

His character and fitness for a Top Secret security

clearance was vetted favorably by the United States in

1987. R5, T11. Abe has never had an ethics complaint

filed against him or been subject to any disciplinary

action.

Distinguished members of the Florida,

Oklahoma and Mississippi Bars who worked closely

with Abe, former employers, professors, physicians,

ministers, neighbors and others have this to say about

Abe:

‘Abe grew up in the home of hard-working, honest blue-collar

workers, worked as a fabricator/welder for several years and then

served his country honorably for 6 years in the United States

Navy and for another 3% years in the Department of Defense. Abe

worked full-time and attended college at night to become the first

person in his family to earn a college degree, scored in the 95'

percentile on the LSAT and excelled in law school (earning top

grades in several classes and writing a prize-winning paper).

4

1. Attorney “Steve” is a 24-year AV-rated

Florida lawyer and managing partner of the nationally

ranked Florida specialty litigation firm at which Abe

worked from May 2003 until November 2004. Steve

characterizes Abe’s legal research and analytical skills

as those of “an experienced, capable lawyer”, and

recommends Abe for admission to the Florida Bar

believing “he will make a valuable member of our bar.”

R2, T2.

2. Professor “J” is an internationally respected

scholar and professor of law who holds a formal chair at

a top American ‘aw school. Professor J, who taught Abe

three semesters in law school, remembers Abe as a

“brilliant” student with “strength of character” and

“personal integrity”. Professor J described Abe’s law

review article as a “standard reference”.’ Professor J

recommends Abe “wholeheartedly and _ without

reservation” for admission to the Florida Bar and

certified that he is qualified “in terms of skills,

knowledge and moral and ethical standards.” R2, T3.°

3. Attorney “Pete” is a 46-year AV-rated

Oklahoma lawyer, former judge and member of the

National Panel of Construction Arbitrators for the

American Arbitration Association. Attorney “Trent” is

a 15-year AV-rated Oklahoma lawyer and former

5Abe’s law review article is cited in 15 major law reviews and listed

as a reference on a course syllabus at Harvard Law School. R2, T3.

‘Professor “F” is an internationally respected scholar and

professor of law at a top tier law school who taught and supervised

Abe as a research assistant and in a civil practice clinic. Professor

F recommends Abe for admission to the Florida Bar, noting he is

“fully fit for the practice of law.” R2, T5.

5

member of the ATLA National Trial Team. Both Pete

and Trent, who interacted with Abe daily from May

2002 through April 2003, “highly recommend Abe as an

attorney.” R2, T4, R3, T7.

4. Attorney “Bill” is a 30-year AV-rated

Mississippi lawyer who, based upon his daily

observations of Abe’s work and character for 36 months,

which he found “exceptional” and “exemplary by all

measures”, “highly recommend[s]” Abe for admission to

the Florida Bar. R2, T6.’

5. Abe served honorably in the United States

Navy for 6 years, undergoing an extensive background

investigation resulting in a Top Secret security

clearance. R5, T4, 11. Abe’s character and integrity

were consistently recognized by his superior officers.

R3, T11-12.*

6. Professor “Mike”, Abe’s undergraduate

advisor and professor, vouched for Abe’s “integrity,

‘Attorney “Mike” is 36-year AV-rated attorney who dictated a

memo to Abe’s personnel file to record Abe’s ability to produce

work as a first-year lawyer that “would [be] a compliment to a

lawyer with considerably more experience. . ..” R3, T10. Based

upon their observations of Abe’s work and character for over 5%

years, Judge “R”, a 33-year practitioner and former general

jurisdiction judge, and Attorney “D”, a 16-year AV-rated

Mississippi lawyer, certified Abe’s good moral character. R3, TS.

*Vice-Admiral “RD” and Captain “GLB” issued Abe Letters of

Commendation and Appreciation, respectively, for his outstanding

performance. Lieutenant Commander “RFL” described Abe as a

person of “outstanding character” and “s true professional in all

respects.” Lieutenant “MLM” described Abe as “a man of

integrity.” Abe's Good Conduct Award is emblazoned by these apt

words: “Fidelity, Zeal and Obedience”. R3, T11.

6

honesty and forthrightness” and stated that Abe could

always be counted on to “do what is right.” R3, T12.°

oe Pastor “Mike”, Abe’s current pastor, has been

serving in the ministry for 14 years, is the senior paster

at Abe’s home church and was Abe’s children’s and

second wife’s pastor. Pastor Mike attests to Abe’s

“character and moral fitness to practice law” and

“highly recommend[s Abe] for admission to the Florida

Bar.” R3, T2383.”

8. Dr. “Mark”, a Board Certified Florida and

South Dakota psychiatrist, rendered a 14-page medical

opinion opining that Abe showed “tremendous character

and commitment to his Christian faith and to his family”

and is “emotionally [and] psychologically capable [and]

qualified to practice law in the State of Florida

unsupervised, without any conditions or restrictions.”

R5, TY, 30.

“Sterling”, Abe’s day-to-day supervisor at DOD, supports Abe’s

admission to the Florida Bar and describes Abe as “highly

respected”, and as having “excellent judgment in the diplomatic

handling of problems.” R3, T12. By affidavit, Florida mortgage

broker “Helen” testified to Abe’s “good moral character” and

“highly recommend[s Abe] for admission to the Florida Bar.” R3,

T23. Pastor David, Dean and Instructor at a Christian university

and senior pastor at Abe’s Florida church home, testified by

affidavit of Abe’s “gentle and caring heart”, “tremendous

character” and Abe’s fitness for the Florida Bar. R5, 'T26.

Pastor Mike stated it plainly: “I do not know what the Florida

bar expects to find in the character of a man .. . but I find it hard

to believe that very many applicants have ‘walked through the fire’

[Abe] has .. . with one-half the character and integrity that he has

shown.” R3, T23.

7

9. Dr. “Alexander”, a Board certified child,

adolescent and adult psychiatrist, licensed in Georvia,

Alabama and Mississippi, assessed and treated Abe’s

daughter in 2001 and spent 180 minutes with Abe in

2006. In his medical opinion, Abe is “psychiatrically,

psychologically and emotionally fit to practice law in the

State of Florida (or any other state) without any

supervision, restrictions or conditions.” R3, T23.

B. Proceedings Below

i. Abe filed his Florida bar application in May

2003, and took and passed the Florida bar examinations

in July 2003. R3Supp.2, T2. Abe self-reported false

allegations made by his ex-wife in an ex parte juvenile

court “custody” proceeding, discovered after

completing his bar application, on September 14, 2003.

R3Supp.1, T2003, 11. On December 17, 2003, and on

February 13, 2004, Abe requested the Oath of Attorney

to practice law in Florida. R3Supp.1, T2003. I6. T2004,

I7. By Notice dated February 17, 2004, the Board

required Abe to submit to a medically invasive

psychiatric/psychological evaluation (to investigate the

allegations) as a condition of further processing his

application. R3Supp.1, T2004, I8.

2. On June 28, 2004, Abe objected to the

evaluation and the Board’s refusal to provide

documents related thereto, and notified the Board of his

intention to file a lawsuit to vindicate himself of the

allegations the Board was focused upon. R3Supp.1,

T2004, 115. Abe sought provisional admission to avoid

interference with his career and ability to support his

children. Id.

8

3. On August 13, 2004, the Board required Abe

to appear at an investigative hearing regarding

allegations made in divorce and child custody

proceedings and results of the Board’s psychiatric

evaluation (investigation). Abe requested 3 hours to

make his presentation, R3Supp.1, T2004, 117; he was

given less than 15 minutes.

4. The 15-month delay and the Board’s focus on

the allegations further persuaded Abe that the Board

was going to require him to prove his innocence.

Accordingly, Abe spent hundreds of hours researching

and preparing a 41-page verified complaint to bring the

actors to court (filed but not served before the hearing),

R3Supp.2, T6, 180 minutes with a licensed Florida

psychologist (Dr. “Michael”, R5, T10) and 210 minutes

with Dr. “Mark” (R5,_T9) who each respectively

reviewed over 2,000 pages of pertinent materials,

provided an 8-page psychological evaluation, R5, T31,

and a 14-page medical opinion rejecting the allegations

and opining that Abe was fit to practice law. R5, T30."

Jn addition to Dr. “Alexander”, who opined that Abe’s ex-wife’s

“neglect and abuse” of Abe’s daughter “significantly contributed to

her current personality disorder” and to her “prototypical

borderline personality reaction . . . turning on her father’, R3, T23,

and Drs. “Mark” and “Michael”, who reject the allegations, R5,

T31, R5, T30, Counselor “Sue”, M.S.C.Ed., M.S. Th., testified by

affidavit, based upon 25 hours with Abe and his daughter, review

of documentation provided to the Board and 17 years’ experience,

of Abe’s character and fitness to practice law and her disbelief of

the allegations. R3, T23. Principal “Dawn”, B.S.Ed., M.S. Ed., S.

Ed., who taught Abe’s children and kept them while Abe was away

on business, testified by affidavit that Abe was a “good and

devoted father”, an “exemplary single parent”, and that she did not

believe the allegations. R5, T20. Neighbor “Donna”, a

grandmother, next-door neighbor and caregiver of Abe’s children

9

5. On September 15, 2004 (six days after the

scant 15 minutes Abe was given to present his case to

the investigative hearing panel, characterized by the

Chairman as a “deposition”), the Board apprised Abe it

had “decided to prepare and file Specifications” against

him on unspecified grounds. R3Supp.1, T2004, 119." On

November 24, 2004, Abe notified the Board that the

delay was forcing him to leave his job in Florida.

R3Supp.1, T2004, 123.

6. After delaying Abe’s bar application for 18

months, on December 11, 2004, the Board issued a

specification against Abe alleging that the lawsuit (filed

because of the pressure from the Board to prove his

innocence) was unprofessional, vexatious, harassing and

constituted an abuse of process. R3, T20.

during the time of the alleged conduct, testified by affidavit of her

disbelief of the allegations and described Abe as a “gentle and

caring” father. R5, T19. “Doris”, a great grandmother and House

Mother for a home for abused children at which Abe and his

children ministered, testified by affidavit that she “never saw a

man who loved his children more than [Abe]” and of her disbelief of

the allegations. R5, T21. Neighbor “Sandra”, mother of Abe’s

daughter’s best friend whose child interacted frequently with Abe,

testified that Abe was a “devoted father and Christian man” and

that she did not believe the allegations “for a second”. R5, T23.

'*Abe served the lawsuit two weeks later. R3Supp.1, T2004, 120-21.

The Board knew of Abe’s intention to file, and filing of, the lawsuit,

and that the delays in processing his application resulting from the

Board’s focus on the allegation were threatening his ability to

support his children. R3Supp.1, T2004, 115. The investigative

hearing panel clearly understood that Abe had not served the

lawsuit. R5 (Hearing Transcript at p. 82, 11.11-12). At no time

before or after the filing of the federal lawsuit did the Board state

that it would issue a “specification” against Abe if he filed or

served the lawsuit.

10

. 2 The Board asserted that Abe’s claims against

a juvenile court judge, who changed custody of his

children ex parte (without subject matter jurisdiction

to do so"), were not well-grounded, that naming his

daughter was against her best interests (her treating

child psychiatrist flatly rejects this contention) and that

Abe could not reasonably claim $110M in damages."

As explained in the 220-plus pages of briefing submitted in the

federal lawsuit, R4, Tl-3, Georgia juvenile courts are courts of

limited jurisdiction with no original subject matter jurisdiction

over custody disputes, regardless of how such disputes are

formally labeled, unless first transferred from a Superior Court,

which did not occur in Abe’s ease. 0.C.G.A. § 15-11-28(c)(1); Lewis

v. Winzenreid, 435 S.E.2d 602, 604 (Ga. 1993) (juvenile courts have

limited jurisdiction and cannot entertain “deprivation” proceedings

by non-custodial parents to obtain custody from non-resident

custodial parents). Abe’s facts were virtually identical to those in

Lewis, a decision published 10 years before the juvenile judge

(without having laid eyes on his children or him) changed custody

of Abe’s children in an ex parte “deprivation” proceeding brought

by his ex-wife in her mother’s name. Judges who act, as the

juvenile court judge did, in clear absence of jurisdiction are liable

for their actions. Stump v. Sparkman, 435 U.S. 349 (1978);

Robinson v. Becker, 595 S.E.2d 319 (Ga. App. 2004).

“The complaint left the issue of damages, a non-traversable

allegation, Sinclair Refining Co. v. Jenkins Petroleum Process

Co., 289 U.S. 689 (1933), to the jury. R3Supp.2, T6. The Board was

provided with numerous comparable authorities. See Rl (Brief in

Support of Motion to Dismiss, chart insert at pp. 57-59 comparing

Westmoreland v. CBS, Inc., 596 F. Supp. 1170 (S.D. N.Y. 1984)

($120M libel); Lambert v. Wise, Philadelphia, Pa., Ct. C.P. Nos.

2988, 2989, 2291 (Aug. 14, 2002) ($40.8M libel and conspiracy);

Honzawa v. Honzawa, 268 A.D.2d 327 (N.Y. App. Div. 2000), 309

A.D.2d 629 (N.Y. App. Div. 2003) ($500M malicious prosecution

and abuse of process against family member and law firm); W/LA-

TV v. Levin, 564 S.E.2d 383 (W.Va. 2002) ($30M defamation—

allegation of sexual assault); Bell v. Nat'l Republican Cong.

Comm., 187 F.Supp. 605 (S.D. W.Va. 2002) ($10M libel); Pitman v.

11

8. Abe timely answered the sole specification on

February 25, 2005, R3, T15 (pp. 35-42), and then by

Motion to Dismiss on April 28, 2005. R3Supp.1, T2005,

134. The Board summarily denied Abe’s Motion to

Dismiss on June 1, 2005. App. at 2a. Between March

2005 and August 2005, Abe made 14 written requests

for a formal hearing (including by formal motion never

ruled upon, R3Supp.1, T2005, 143)", provided hundreds

of pages of additional supporting documentation,

including the extensive briefing in the federal lawsuit

(the “Briefs’”'®) and additional character

recommendations, before a formal hearing was finally

scheduled some 29 months after he filed his bar

application.

9. Abe received 17-days written notice of the

scheduled October 21, 2005 formal hearing. R3Supp.1,

T2005, 165. Three days later, Abe delivered 21 bound

Pittman-Grayson, 149 F.3d 111 (2d Cir. 1998) ($15M intentional

interference with custody) in tabular form with Abe’s claims).

R3Supp.1, T2005, 124, 27-28-31, 39-41, 43, 51, 53-55, 57-58, 60.

‘The federal district court dismissed the lawsuit on motions for

summary judgment, but did not find it frivolous and ultimately

rejected the defendants’ motion for costs. In its 86-page opinion

dismissing the counts against the juvenile court judge on grounds

of judicial and Eleventh Amendment immunity, and dismissing the

counts against the remaining defendants on the ground of the so-

called Rooker-Feldman doctrine, the district court opined that the

juvenile court “deprivation” proceeding, in which Abe had never

been served or made an appearance, which was dismissed with

prejudice by the defendants in Abe’s favor, precluded him from

suing them in federal court. R3Supp.2, T6. In so doing, the district

court rejected arguments made by Abe in the Briefs, R4 T1-3, that

embraced the rationale of this Court’s unanimous decision in.

Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280

(2005), rendered weeks after the dismissal.

12

volumes of exhibits to the Board. R3Supp.1, T2005, 169.

Six days after delivering the exhibits, the Board left

Abe a voice mail stating that “certain” exhibits “arrived

too late to be provided to the hearing panel.” Despite

repeated written requests, R3Supp.1, T2005, 172, 72,

79, Abe was not told of the removal of the critical Briefs

(provided 4 months earlier) until the day before the

formal hearing, after driving over 1,000 miles.”

10. After a closed executive session, the hearing

panel denied Abe’s motion to admit the critical Briefs.

R3Supp.1, T2005, 175 (motion); R3Supp.1, T2005, 176

(Aborted Hearing Transcript at p. 12, 1.24-p.13, 1.2; p.

14, ll. 4-6). Given the refusal to consider the critical

Briefs, Abe was given a continuance with an on-the-

record assurance that a formal hearing would be

scheduled at the “earliest practicable time.” Jd. at p. 19,

11.8-9.

11. After repeated requests for a formal hearing

were denied, the Board informed Abe that his bar

application became “stale” in May 2006 under

FL.S.CT.R.A.B. 2-29, demanded he pay a “stale” file fee,

submit a new bar application, fingerprint card and

releases to “re-investigate” him. R3Supp.1, T2005, 1111.

Abe petitioned the Florida Supreme Court for relief,

which summarily denied his Petition without a hearing.

"The critical 220-plus page Briefs, analyzing the federal lawsuit

upon which the sole specification is based, were provided August

23, 2005, 4 months before the formal hearing. R3Supp.1, T2005, 162

(transmittal letter); R4, T1-3 (Briefs). The Board belatedly

justified removing the critical Briefs from Abe's exhibits by a

quizzical statement: “Due process required fair notice to the Office

of General Counsel as well as the applicant.” R3Supp.1, T2005, [84

(p.3, 14).

13

App. at la. On February 7, 2007, Abe again paid the

“stale” file fee, provided a new fingerprint card,

releases and a complete application update. On

February 16, 2007, the Board returned Abe’s “stale”

file fee, fingerprint card, releases and application

update, refusing to “initiate the updated investigation”

until Abe typed out a new bar application, further

denying Abe due process by imposing yet another 7

meaningless procedural hurdle.!®

REASONS FOR GRANTING THE WRIT

Abe humbly submits that the writ should be

summarily disposed of on the merits under U.S.S.CT.R.

16 for four principal reasons. First, denying a multi-

jurisdiction attorney, admitted to the highest court of the

land, the right to practice law violates the Fourteenth

Amendment. Second, denying admission for exercising

the right to petition for redress and exercising

fundamental parental rights violates the First and

Fourteenth Amendments. Third, denying a due process

hearing violates the Fourteenth Amendment. Fourth,

no reasonable man viewing the evidence can fairly find

“substantial doubts about [Abe’s] honesty, fairness and

respect for the rights of others and for the laws of the

state and nation.”

A. A State cannot arbitrarily deny a multi-

jurisdiction attorney, who passed the State’s

bar examinations and is admitted in the

highest court of the land, the right to

practice law.

'“Abe’s examination results will become “stale” in May 2008.

FL.S.CT. R.A.B. 4-18.2.

14

This Court has invited the Solicitor General to

brief two pending bar admission cases regarding

provincial restrictions on the practice of law by foreign

attorneys. Wallace v. Calogero, 127 S.Ct. 344 (2006)

(No. 05-1645); Leclerc v. Webb, 127 S.Ct. 344 (2006) (No.

06-11). The United States has a petition before the

Arizona Supreme Court to exempt its attorneys from

the burdens of pro hac vice admission/association of

local counsel. U.S. Petition to Amend Rule 38(a), No. R-

06-0002 (Az. Feb. 9, 2006). The fundamental right of an

attorney to practice law'® is an important issue of

national and international economic significance,” not

one of provincial grace to be arbitrarily dispensed by

States?! in practically unreviewable ad hoc decisions.

Abe is a member in good standing of three State

Bars, R5, T3, and has been a member of the Bar of this

Honorable Court in good standing since 2000, R3, T2,

when he was sponsored by a former law clerk of this

Court who was subsequently nominated for a seat on a

United States Court of Appeals. Yet Florida has

denied Abe admission without a full due process

hearing for 45 months. Abe respectfully submits that

Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 281

(1985) (practice of law a fundamental right protected by the

Privileges and Immunities Clause, U.S. CONST. ART. IV, SECT. 2).

See Laurel S. Terry, Lawyers, GATS, and the WTO Accounting

Disciplines, 22 Penn. St. Int’l. L. Rev. 695, 718 n.74 (2004) (U.S.

exported $3.38 billion in legal services in 2003) (citing United

States Department of Commerce, Bureau of Economic Analysis,

Table 1, Private Services Trade by Type, 1992-2003), Carole Silver,

Regulatory Mismatch in the International Market for Legal

Services, 23 NW. J. Int’l L. & Bus. 487, 489 (2003).

Bx parte Garland, 71 U.S. 333, 379 (1866) (office of attorney not

conferred as a mere act of grace).

15

his qualifications to practice law in the highest court of

the land should end the matter, at least insofar as

practice in Florida federal courts is concerned. US.

CONST. AMEND. XIV, SECT. 1; U.S. CoNsT. ART. VI.2

B. A State cannot arbitrarily exclude attorneys

from the State Bar for exercising

constitutional rights.

States cannot exclude persons from the practice of

law in a manner or for reasons that contravene the Due

Process or Equal Protection Clauses. U.S. CONST.

AMEND. XIV; SECT. 1; Schware, 353 U.S. at 239. Nor

can States exclude persons from the practice of law for

exercising federal constitutional rights or for reasons

that violate federal law. Konigsberg, 353 U.S. at 272;

Baird, 401 U.S. at 10 (error to refuse to process

application and not to admit to Bar).

In Schware, this Court reversed a State’s denial of

admission because “[t]here [was] no evidence in the

record which rationally justifie[d] a finding that [the

applicant] was morally unfit to practice law.” Schware,

353 U.S. at 246-247 (emphasis supplied). This Court

“Compare Frazier v. Heebe, 482 U.S. 641 (1987) (exercising

supervisory powers under 28 U.S.C. § 2072(a) to reverse residency

requirement imposed by federal district court, noting “there is no

reason to believe that nonresident attorneys who have passed [a

State’s] bar examination are less competent than resident

attorneys”) and Sperry v. State of Fla. ex rel. Fla. Bar, 373 U.S.

379 (1963) (reversing injunction against non-Florida lawyer

practicing patent law in Florida) with Fla. Bar v. Rapoport, 845

So.2d 874 (Fla. 2003) (Washington, D.C. lawyer, who was a

member in good standing of this Court’s Bar, enjoined from

practicing federal securities arbitration in Florida).

16

rejected contentions that the applicant’s arrests for

offenses for which he neither was tried nor convicted,

use of an assumed name and a former political party

membership, were sufficient to overcome the

applicant’s evidence of good reputation and character

among his teachers, fellow students and in his

synagogue. Id. at 246.

In Konigsberg, this Court held that a State’s

arbitrary and discriminatory refusal to admit an

applicant violated his due process and equal protection

rights. Konigsberg, 353 U.S. at 262. This Court again

found that the evidence did not rationally support the

grounds upon which the State relied upon to reject

admission: alleged political party membership and

severe criticism of the government. Jd. at 267-74.

In Baird, this Court held that a State’s refusal to

process an applicant’s bar application (for refusing to

answer a question on First Amendment grounds) and

failure to admit the applicant to the Bar, where there

was no record evidence that the applicant was morally

and professionally unfit, was error. Baird, 401 U.S. at

10 ( “The practice of law is ...a matter .. . of right for

one who is qualified by his learning and his moral

character.”).

1. Denying bar admission for filing a single

lawsuit violates the First and Fourteenth

Amendments.

The Board’s sole articulated, though arbitrary, basis

for denying Abe a license to practice law is a federal

lawsuit Abe filed to vindicate matters the Board

17

required Abe to undergo a stigmatizing psychiatric

evaluation to investigate. -

The prosecution of a lawsuit, whether for damages

or vindication of the truth, furthers precious and

fundamental constitutional rights upon which our

honorable profession rests. U.S. Const. AMEND. I

(“Congress shall make no law... abridging the freedom

of speech ... or of . . . the people .. . to petition the

Government for a redress of grievances.”); see Johnson

v. Avery, 393 U.S. 483, 498 n.24 (1969) (reasonable

access to courts is fundamental right); United Mine

Workers of America, Dist. 12 v. Illinois State Bar

Ass’n, 389 U.S. 217, 222 (1967) (right to petition among

most precious of liberties).”

The First Amendment right to petition through

private litigation extends to the constitutionally

protected interests of compensation, vindication of

one’s name and reputation,” evolution of the law and

avoiding force and violence by resorting to the courts.

Compare Bill Johnson’s Restaurants, Inc. v. N.L.R.B.,

“Citizens cannot, except in the most extreme circumstances, be

punished for exercising the precious right to petition “without

violating . . . fundamental principles of liberty and justice. . ..” Cf.

De Jonge v. Oregon, 299 U.S. 353, 364 (1937) (right to assemble);

New York Times v. Sullivan, 376 US. 254, 270-71 (1964)

(“[E]xercise of the right to petition ‘may well include vehement,

caustic, and . . . sharp attacks on government and public officials. .

..”); Konigsberg, 353 U.S. at 273 (Lawyers must be “free to think,

speak, and act as members of an Independent Bar.”).

“Abe’s faith places a higher value on a good name than great

riches. Proverbs 22:1; compare Milkovich v. Lorain Journal Co.,

497 U.S. 1, 12 (1990) (He who “filehes from me my good name{,}

[rlobs me of that which not enriches him, [aJnd makes me poor

indeed.”) (quoting Othello, Act III, seene iii.).

J

18

461 U.S. 731, 743 (1988) with BE & K Construction

v.N.L.R.B., 536 U.S. 516, 531-33 (2002). The First

Amendment does not require successful petitioning. Jd.

at 536 U.S. at 531-33.

A reasonable legal mind cannot view the well-pled,

verified complaint, supporting Briefs (embracing the

rationale of this Court’s later unanimous 2005 Exxon

Mobil decision), supporting medical opinions and

affidavits, and 86-page opinion of the district court, R5,

130-31, R3, T23, R3Supp.2, T6, which did not find the

lawsuit to be frivolous and ultimately denied costs to

the defendants, and conclude that the lawsuit provides

a rational basis to deny Abe admission to any Bar.

2. Conducting a trial by psychiatrist of unproven

allegations as part of a bar character review

violates the Ninth and _ Fourteenth

Amendments.

Regardless of whether a State could require all

applicants to undergo a full psychiatric evaluation as a

condition of admission and still pass muster under a

compelling interest,” rational basis* or equal protection

There is a substantial liberty interest in avoiding the stigma of

being treated for a mental illness. Cf. Parham v. J.R., 442 U.S. 584

(1979) (child’s interest in avoiding erroneous mental health

commitment greater than unfettered parental interest in child’s

welfare); Addington v. Texas, 441 U.S. 418 (1979) (requiring clear

and convincing evidence for civil commitment); see Smith v.

Schlesinger, 513 F.2d 462, 477 (D.C. Cir. 1975) (“{mJental illness is

unfortunately seen as a stigma”). Compare U.S. Const. AMEND.

IX with Griswold v. Connecticut, 381 U.S. 479 (1965) (right of

privacy deeply rooted in our nation’s philosophical and political

heritage); see Hearings on Psychological Testing Procedures and

the Rights of Federal Employees Before the Subcom. on

Constitutional Riahts of the Senate Com. on the Judiciary, 89th

19

inquiry,” it is reprehensible and unconstitutional to

require a multi-jurisdiction attorney to undergo a trial

Cong., 1st Sess. at p. 2 (1965); In re T.R., 731 A.2d 1276 (Pa. 1999)

(right of privacy precludes compelled psychological evaluation);

Long Beach City Employees Assoc. v. City of Long Beach, 719

P.2d 660, 663 (Ca. 1986) (the mind is the quintessential zone of

privacy). The right of bar examining committees to inquire into

the mental health of applicants has been the subject of intense

controversy. See, e.g., Jon Bauer, The Character of the Questions

and the Fitness of the Process: Mental Health, Bar Admissions

and the Americans with Disabilities Act, 49 UCLA L.Rev. 98

(2001); Clark v. Virginia Bd. of Bar Examiners, 880 F.Supp. 430

(E.D. Va. 1995); Ellen S. v. Florida Bd. of Bar Examiners, 859

F.Supp. 1489 (S.D. Fla. 1994) (rejecting Board’s contention of want

of jurisdiction); In re Petition of Frickey, 1994 WL 183523 (Minn.

1994) (removing mental health questions from application); Matter

of Respondent B, 1991 WL 63245 (Cal. Bar Ct. 1991) (reversing

order requiring attorney to undergo psychiatric examination).

See Deborah L. Rhode, Moral Character as a Professional

Credential, 94 Yale L.J. 491, 581-82 (1985) (“{C]urrent certification

standards license untrained examiners to draw inferences that the

mental health community would find highly dubious .... Even

trained clinicians cannot accurately predict psychological

incapacities . . . in most individual cases.”); JAY ZISKIN, COPING

WITH PSYCHIATRIC AND PSYCHOLOGICAL TESTIMONY 1-63 (3d ed.

1981); see Bruce J. Ennis & Thomas R. Litwack, Psychiatry and

the Presumption of Expertise: Flipping Coins in the Courtroom,

62 Cal. L. Rev. 693 (1974) (citing extensive authority regarding

inability of mental health professionals to make reliable predictions

of future behavior); accord Addington, 441 U.S. at 429-30. But see

Thomas Pobjecky, Everything You Wanted to Know About Bar

Admissions and Psychiatric Problems But Were Too Paranoid to

Ask, The Bar Examiner at 14 (1989) (Board’s General Counsel

since 1985 stating, based upon a 1979 National Institute of Menta!

Health survey, that “it seems logical to conclude that a significant

number of bar applicants and attorneys are afflicted with

psychiatric problems.”).

“In re Guardianship of Browning, 568 So.2d 4 (Fla. 1990) (right of

privacy consists of a “physical and psychological zone within which

20

by psychiatrist of unproven allegations as part of a bar

character and fitness review.

Here, although Abe had no prior mental health

history, the Board required Abe to undergo a

psychological and psychiatric “evaluation” after

reportedly obtaining an ex parte “individualized

assessment” and “recommendation” from its “mental

health consultant.” R3.Supp, T2004, I8 (pp.1-3). After

the “evaluation”, however, Abe learned that the

“ceonsultant’s” responses were “to [the Board’s] specific

questions concerning [Abe]”’, were “based on the

information provided ... by the [Board]’, and that the

“consultant” had “not drawn any _ conclusions

concerning [Abe’s] mental health.” R3.Supp, T2004, [8

(pp.4-5).*

an individual has the right to be free from intrusion or coercion,

whether by government or by society at large.”); Singletary v.

Costello, 665 So.2d 1099 (Fla. 4th DCA 1996) (Right of privacy

under FL. Const. ART. I, SECT. 23 embraces more privacy

interests and extends more protection than due process clause of

federal constitution). Denying Abe this venerated Florida

constitutional right arguably violates equal protection. Matter of

The Florida Bar, 338 So.2d 205, 207 (Fla. 1976) (“We do not feel

the rights afforded the accused attorney . . . should be sacrificed

for... mere... expediency. . ..”). But see Thomas Pobjecky, The

Demands of Due Process in Bar Admission Proceedings, The Bar

Examiner at 45 (1996) (Board’s General Counsel since 1985 stating

that “a bar applicant can be held to a higher standard of character

and fitness than a practicing attorney.”).

Despite repeated and specific requests for Willner materials,

before and after Abe’s April 2005 Willner motion, R3.Supp, T2005,

132, the “specific questions” and other materials requested from

the Board remain undisclosed. Willner v. Committee on Character

and Fitness, 373 U.S. 96, 103 (1963) (due process requires

“confrontation and cross-examination of those whose word

21

Dr. “Mark”, a board certified psychiatrist, reviewed

over 2,000 pages of documents (as opposed to the Board

psychiatrist’s review of a “40-page investigative

report”), spent 210 minutes with Abe (as opposed to the

Board psychiatrist’s 40 minutes), and had the benefit of

the review and opinion of a licensed psychologist (who

was, unlike the Board psychiatrist who was not, trained

and qualified to interpret the full panel of psychological

tests Abe was required to submit to), opined that the

Board psychiatrist “stepped outside the bounds of her

professional competency .. . act[ing] as judge and jury

of [Abe] rather than . . . perform[ing] a professional and

objective psychological evaluation. . ..” R5, T30 (p.14).

deprives a person of his livelihood”). Compare Final Report and

Recommendations of the Supreme Court Select Committee to

Study the Florida Board of Bar Examiners, § 5, 25 (1997)

(“members differed on whether applicants should be given the

right to respond to evidence used against them”).

(http://www floridabarwatch.org/does/flreport.pdf) (March 1, 2007)

unth Pobjecky, Demands of Due Process at 46 (Board’s General

Counsel since 1985 stating that “[t]he need for bar examiners to

maintain the confidentiality of particular information if they so

choose is essential”). Here, the “consultant” responded to the

“specific questions” about allegations that he had an “apriori

suspicion” of, R3.Supp, T2004, 18, without having talked with Abe

or his daughter, without having reviewed her inpatient or

outpatient psychiatric records, R5, T17, 18 and without talking

with her treating psychiatrists. The “consultant” apparently gave

no weight to the fact that Abe took his daughter to a child

psychiatrist after she began acting up when he remarried, R3, T23,

admitted her to a children’s inpatient psychiatric ward after she

took her first overdose, R5, T18, and ultimately sent her to live

with his ex-wife after her noor mother-daughter relationship was

identified as a possible . Urin her psychiatric problems. Jd. The

“consultant” also gave no weight to the fact that two state courts,

after the period of the alleged conduct, awarded physical custody

to Abe. See R3Supp.2, T2-4 (May 2003 application attachments).

22

Requiring a multi-jurisdiction attorney-applicant to

undergo a medically invasive trial by psychiatrist of

unproven allegations as a condition of processing his

bar application is reprehensible and violates the Ninth

and Fourteenth Amendments.

3. Second-guessing a parental decision, vetted

with a psychiatrist, psychologist and three

pastors, in a bar character review is

constitutionally impermissible.

The Board’s second-guessing of Abe’s decision as to

what was in the best interests of his children, made only

after consulting medical professionals and senior pastors,

violates Abe’s First Amendment rights to freedom of

speech, free exercise of religion and to petition for a

redress, as well as fundamental parental rights under the

substantive due process clause of the Fourteenth

Amendment. Troxel v. Granville, 530 U.S. 57, 65 (2000).

Moreover, whether the Board agrees with Abe’s

constitutionally protected religious beliefs or not,” Abe

believes that his daughter is in danger of losing her

eternal life. Revelation 21:8. Advancing Abe’s parental

interests by filing a lawsuit he resisted until the

Board’s actions forced his hand (not to mention

vindicating his name for his own livelihood and ability

to support his other daughter), are fundamental federal

constitutional interests that cannot be used as a basis to

deny him admission to the Florida Bar. The Board’s

second-guessing of Abe’s constitutionally protected

“See West Virginia State Board of Education v. Barnette, 319 U.S.

624, 642 (1943) (“If there is any fixed star in our constitutional

constellation, it is that no official, high or petty, can prescribe what

shall be orthodox in... religion. . ..”).

23

parental decisions, supported by his religious beliefs

and the medical opinion of his daughter’s treating child

psychiatrist” is plainly unconstitutional and not

rationally connected to his fitness or capacity to

practice law. Schware, 353 U.S. at 238-39.

C. Denying due process so long that a bar

application is rendered “stale” and retired

under State rules, thereby substantively

punishing the “foreign” attorney fifteen times

more severely than its own attorneys for the

same alleged act, violates the Fourteenth

Amendment.

Denying an applicant a formal hearing (as the Board

apparently does with some frequency") on a bar

application so long it becomes “stale” and is retired under

State rules is not due process.

“Dr. “Alexander” wrote: “The [Board] reportedly contends that

[Abe’s} decision to sue his daughter was not in her best interests.

However, from a psychiatric standpoint, it is definitely in [Abe’s

daughter’s] best interests to be required to report the truth under

oath and to be placed in intensive counseling.” R3, T23 (p. 6 of his

medical opinion).

*'See, e.g., Lawrence v. Rigsby, et al., ease nos. 05-16011-DD and 06-

10776-DD (11 Cir. 2006) (attorney-applicant—3 years); Stoddard

v. Fl. Bd. of Bar Examiners, 4:06CV-414 RH-WCS (N.D.Fla. 2006)

(5 years); Fla. Bd. of Bar Examiners re M.B.S., 2007 WL 268776

(Fla. 2007) (2 years); compare Fla. Bd. of Bar Examiners ex rel.

W.F.H., 933 So.2d 482 (Fla. 2006) (3 Florida Supreme Court

Justices concurring in result (denial of admission) writing

Separately to note “regret” of “fundamental lun|fairness” of

Board’s actions). Nothing is intimated about the underlying merits

of the foregoing.

24

Due process minimally requires “the opportunity to

be heard .. . at a meaningful time and in a meaningful

manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965)

(quoted case omitted); compare Barry v. Barchi, 443

U.S. 55, 66 (1979) (“To be meaningful, an opportunity

for a full hearing and determination must be afforded at

least at a time when the potentially irreparable and

substantial harm... can still be avoided. . ..”) (Brennan,

J., concurring in part).

15 months to an investigative hearing is not

meaningful, R5, B1, much less 45 months without a full

formal due process hearing, particularly when the

Board knew that Abe was going to lose his job unless it

timely finished “processing” his application.”

Moreover, denying Abe, a _ multi-jurisdiction

attorney, admission for 45 months for a single alleged

“unprofessional, vexatious, harassing and abuse of

process” lawsuit (not found to be so by a federal district

court), when Florida sanctions its own resident

attorneys only 60-91 days for the same proven conduct,

See R3Supp.1, T2004 115; R5 (Hearing Transcript at p. 82, Il.11-

12). See also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 582,

549 (1985) (When a man’s livelihood is at stake, hardship

“inevitably increases as the days go by”) (describing damages Abe

has suffered: “{a] child’s education may be interrupted, a family’s

home lost, a person’s relationship with his friends and even his

family may be irrevocably affected.”) (Marshall, J., concurring).

Until the 18-month failure to process his Florida bar application

(now 45 months) forced him to leave his plum job in Florida, Abe

worked at a nationally ranked Florida specialty litigation firm in a

position he could not have dreamed of as a boy growing up in the

foothills of Georgia.

25

violates the Due Process and Equal Protection

clauses.** :

D. Denying bar admission to a multi-jurisdiction

attorney-applicant, when no reasonable man

reviewing the evidence can fairly find

substantial doubts about the applicant’s

honesty, fairness and respect for others and

for the laws of the state and nation, violates

the Fourteenth Amendment.

What more can Abe do to prove he “is qualified by

his learning and his moral character” to be admitted to

the Florida Bar? Baird, 401 U.S. at 10.

He served his country honorably for almost 10

years, R5, T1l, 1, was found fit to hold a Top Secret

security clearance, R5, T4, earned a Good Conduct

Award and other awards and commendations. R5, T11.

He graduated Order of the Coif from a top tier law

school, R5, T5, joined a regional law firm in 1996 and

published a law review article in a national law journal

in 1997. R5, T1, 6.

“Compare the 45-month denial of admission to Abe, a multi-

jurisdiction attorney, with Fla. Bar v. Richardson, 591 So.2d 908

(F'la. 1991) (60-day suspension for filing frivolous lawsuit); and Fla.

Bar v. Kelly, 813 So.2d 85 (Fla. 2002) (91-day suspension for filing

frivolous federal lawsuit); and Fla. Bar v. Committe, 916 So.2d 741

(Fla. 2005) (91-day suspension and one-year probation for filing 2

frivolous lawsuits and abusing legal process); and with Fla. Bar v.

Walton, --- So.2d ----, 2006 WL 3627029 (Fla. 2006) (91-day

suspension and requirement to attend professional course for

incompetent representation).

26

He is a member in good standing of three State

Bars, R5, T3, the Bar of this Court, R5, T2, two federal

courts of appeal and numerous other courts. Id.

He has_- provided character and _ fitness

recommendations from a host of AV-rated attorneys he

worked for and two internationally respected law

professors, not to mention his 24-year history of

exemplary service to country, family, employers and

community, supported by evaluations and affidavits

from a host of Naval officers, four professors, four

ministers, several other lawyers, mothers of his

children’s best friends, a principal who taught and kept

his children, his daughter’s counselor, a psychologist

and two psychiatrists, all of whom unqualifiedly

support his character and fitness to practice law.

Is 1,100 years of collective human experience

attesting to one’s moral character and fitness not

enough? ,

Again, Abe must ask: What more can he do to prove

he “is qualified by his learning and his moral character”

to be admitted to the Florida Bar?

The answer: Nothing. No reasonable man

reviewing the evidence can fairly find that there are

“substantial doubts about [Abe’s] honesty, fairness and

respect for the rights of others and for the laws of the

state and nation.” Konigsberg, 353 U.S. at 264.

Accordingly, the Fourteenth Amendment compels

the State of Florida to admit Abe to the Florida Bar.

Id.; Baird, 401 U.S. at 10.

27

CONCLUSION

Abe pleads with this Honorable Court of last

resort to restore a measure of the stolen honor by

vacating the Order of the Florida Supreme Court,

ordering his admission to the Florida Bar and requiring

Respondent to pay his costs in prosecuting this matter.

In the alternative, Abe would humbly ask the

Court to grant this petition for briefing and oral

argument on the merits, or, to grant, vacate and

remand this matter with instructions to admit him to

practice in Florida federal courts, to require the Board

to prove facts by a preponderance of the evidence to a

federal district court within 30 days showing why Abe

should not be admitted to the Florida Bar, be awarded

costs in prosecuting his bar application to date, and be

permitted to pursue 42 U.S.C. § 1983 claims against

those responsible.

Respectfully submitted, this the 5' day of March 2007.

GREGORY M. HUNSUCKER

HUNSUCKER LAw Firm, PLLC

1020 North Gloster Street,

No. 257

Tupelo, Mississippi 38804

662.422.6436

Counsel of Record

la

SUPREME COURT OF FLORIDA

FRIDAY, OCTOBER 6, 2006

CASE NO.: SC06-1044

Lower Tribunal No.: 92166

FLORIDA BOARD OF BAR _ RE: G.M.H

EXAMINERS

Petitioner(s) Respondent(s)

I IAL

The Petition for Relief filed by G.M.H. in the above

cause is hereby denied. Also denied.is G.M.H.’s motion

to strike the Florida Board of Bar Examiners’ response

to the petition.

LEWIS, C.J, and WELLS, ANSTEAD, PARIENTE,

QUINCE, CANTERO and BELL, JJ., concur.

A True Copy

Test:

Thomas D. Hall

Clerk, Supreme Court

me

Served:

ELEANOR MITCHELL HUNTER

ROBERT G. BLYTHE

G.M.H.

2a

File No. 92166

BEFORE THE FLORIDA BOARD OF BAR

EXAMINERS

IN RE: APPLICATION OF )

G.M.H. )

FOR ADMISSION TO __)

THE FLORIDA BAR )

)

CONFIDENTIAL

ORDER ON APPLICANT’S MOTION TO

DISMISS

I have considered the Applicant’s Motion to

Dismiss dated April 28, 2005 and the Office of General

Counsel’s Response dated May 27, 2005. Based upon

such consideration, it is determined that

O __ the Motion to dismiss is GRANTED, and the

Specification shall be dismissed.

Vv] the Motion to dismiss is DENIED, and the

Specification shall be considered at a forma!

hearing. (Without prejudice to the Applicant’s

ability to present his case in opposition to the

Specification.) |

DONE and ORDERED at Miami, Florida this 1“ day of

June, 2005.

PAUL J. SCHWIEP, Chair

Florida Board of Bar Examiners

Copy to: G.M.H.

- Robert G. Blythe, Dep. Gen. Counsel