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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

sian aii

Suprame Court, U.S.
| alia

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2255%3A1. Public record. Not legal advice.