Petition for Writ of Certiorari — McKenzie v. Rehnquist

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Supreme Court, U,8,

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00 149 sy 27

No. TSS a ae eee

In the

Supreme Court of the United States

MONICA M. McKENZIE, JEFFREY L. RUSSELL, ROGER

LOWENSTEIN, BENITA KICHLER, RICHARD J. PACIULIAN, LUISITO

L. LOPEZ, ARTHUR MINTZ, HOWARD SOBEN, DAVID ZISSER,

Petitioners,

versus

Hon. WILIAM H. REHNQUIST, CHIEF JUSTICE OF THE JUDICIAL

CONFERENCE OF THE UNITED STATES, Hon. JUAN R.

TORRUELLA, Hon. JOSEPH L. TAURO, Hon. JON O. NEWMAN, Hon.

PETER C. DORSEY, Hon. DOLORES K. SLOVITER, Hon.

EDWARD N. CAHN, Hon. J. HARVIE In WILKINSON III, Hon. W.EARL

BRITT, Hon. HENRY A. POLITZ, Hon. WILLIAM H.

BARBOUR, JR., Hon. BOYCE F. MARTIN, JR., Hon. THOMAS A.

WISEMAN, JR., Hon. RICHARD A. POSNER, Hon. MICHAEL M.

MIHM, Hon. RICHARD S. ARNOLD, Hon. DONALD E. O’BRIEN, Hon.

PROCTOR HUG, JR., Hon. LLOYD D. GEORGE, Hon.

STEPHANIE K. SEYMOUR, Hon. CLARRENCE A. BRIMMER, Hon.

JOSEPH W. HATCHETT, Hon. WM. TERRELL HODGES, Hon.

HARRY T. EDWARDS, Hon. JOHN GARRETT PENN, Hon. GLENN L.

ARCHER, JR., Hon. GREGORY W. CARMAN,

Respondents.

On Petition for Writ of Certiorari to The United States Court of Appeals for

the District of Columbia

PETITION FOR A WRIT OF CERTIORARI

Joseph R. Giannini

Counsel of Record

2950 Bentley Ave. #2

Los Angeles, CA 90064

(310) 914-8493

Curry & Taylor (202) 393-414 1/ussupremecourt@hotmail.com

oe -

QUESTIONS PRESENTED FOR REVIEW

1. The First Amendment safeguards beyond the reach of

governmental interference the constitutional freedoms to speech

(advocacy), association, and to petition for redress of

grievances. Inseparable and interwoven and with these First

Amendment freedoms, this Court has held an attorney’s

opportunity ‘o practice law is a constitutionally protected

Privilege and Immunity. This Court has held geographical

isolation or difficulty in supervising a nationwide bar

membership does not justify discrimination in bar admission.

Federal substantive law and procedure are uniform. Do United

States District Court “local” rules that categorically grant

general bar admission privileges to newly minted attorneys

from the forum State, and categorically deny general bar

admission privileges to highly qualified and experienced

attorneys from outside the forum State — violate the First

Amendment, the Equal Protection Clause, or the attorney’s

constitutionally protected Privileges and Immunities?

2. Congress has declared in 28 U.S.C. § 2071(a) that

United States District Court “local” rules shall be consistent

with Acts of Congress and the national rules. Congress has

declared in 28 U.S.C. § 2072(b) that “local” rules shall not

modify, abridge, or enlarge any substantive rights. Are federal

district court “local” attorney admission rules that categorically

enlarge the First Amendment liberties and Privileges and

Immunities of forum State attorneys, and categorically modify

and abridge the First Amendment liberties and Privileges and

Immunities of experienced federal practice attorneys from

outside the forum State, lawful?

3. Do “local” rules that are adopted by United States

District Judges, that grant enormous federal substantive

privileges to one State’s attorneys that are denied to another

State’s attorneys, violate the Supremacy Clause, or the Full

Faith and Credit Clause?

TABLE OF CONTENTS

COU TIONS PITTI oi sscisctiininisiccnachinkicic in naseaaies i

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FA icici cctidicistniasntnnlitinenitsibrihieaena aaa l

SEATS OP THI EAI nics vicccsssissssinescisdsiinncctecicecstasceactbans 2

REASONS FOR GRANTING THE WRIT .........sccccsessssesssesseeesenseeees 6

CN sisi sivcine epccisiciscnin einen ee 17

APPENDIX

CORCURT CISC FOIE vv civecensnisnnisncasticnicsnceannseiicn la

DISTRICT COURT MEMORANDUM OPINION ..........s2s0seeeseeees 4a

SUSIE CI CI iit ic eitiestinegiincdcicidinddbicncdi l6a

ORDER DENYING REHEARING ...........scccccsesssssesssssssceeseees 17a

RELEVANT CONSTITUTIONAL , STATUTORY,

ORDINANCE PROVISIONS INVOLVED .........cccccecceccccccceseeees 18a

ill

TABLE OF AUTHORITIES

CASES

Austin v. New Hampshire, 402 U.S. 656 (1975)... 17

Barnard v. Thorstenn, 482 U.S. 546 (1989) .........:cccsscessseeseeeees 8

California Democratic Party v. Jones,

SOIT CO) nen sceensssssccnscsnsineconevsessescensenvese 19, 20, 21

City of Lakewood v. Plain Dealers Publishing Company 486

U.S. 750, 108 S.Ct. 2138, 2152 (1988) ...........crccsescrcsserseres 24

Congress. In U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779

CIID saiisiiesscssnsdsaincrsennssesconssnnennsnonsssnserssnsnenessnvessesssesensioresen 22

Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S.

Fe ED iaciinseshannsavcerecnsnsteaminhinissererovecnsesonnsoemnqoioensees 18

Department of Labor v. Triplett, 494 U.S. 715 (1990).............. 4

Dred Scott v. Sandford 60 U.S. (19 Howard) 393 (1856) and In

re Lockwood, 154 U.S. 116 (1894) ........ccccsecseseereeeeees 2, 14

Frazier v. Heebe, 482 U.S. 641, 649 (1987).........csccceseeees passim

FTC v. Superior Court Trial Lawyers Assn. 493 U.S. 411

EI disk shcccccnicsnvetesemesnionsacsnnsensscsearssascnssasvessosenesnrsteereqnocsvecs 10

Giannini v. Real, 911 F.2d 354 (9th Cir. 1990) cert. denied 498

ee PE in iiccsia llainicsersdbeiresscivocsvensssnnensenscusasesetovensess 25

Keller v. State Bar of California, 496 U.S. 1, 13 (1990)........... 9

Leis v. Flynt, 439 U.S. 438, 443 (1979) .......cscssesesseseeceeeeenenes 23

Matter of Rouss, [221 N. Y. 81, 84, 116 N.E. 782, 783............ 2

Members of City Council of Los Angeles v. Taxpayers for

Vincent, 466 U.S. 789, 804 (1984).........cccccsecssessesseeeeeenees 18

Missouri. In Bradwell v. Illinois 83 U.S. (16 Wall) 130 (1872)

ahs saliptdvapiemiuwppasnenapenanbasnbeniqeseeeeens 14

New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).. 18

Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972)......... 20

Saenz v. Roe, 526 U.S. 489 (1999) 00... cecsceeseeeteeeeteeeneeeenees 17

Schlumberger Technologies, Inc. v. Wiley, 113 F.3d 1553 (11th

ON I sini Sarscitilsisenenbvandvaihirtensoeetiinianopescronmivavensinetceneces 24

Schneider v. United States, 308 U.S. 147, 163 (1939)........... 21

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

PE ila cds stabi gbshndtwenidinrdnitsaccetaresesoonsesyeninaszesessovnse 8, 12, 16

Theard v. United States, 354 U.S. 278, 281 (1957)... l

U.S. v. Childress, 58 F.3d 693, 736 (D.C.Cir. 1995)............... 24

U.S. v. Ferguson, 54 F.3d 825 (D.C. Cir. 1995) ........cssessssseseeee 9

United States v. Allegheny County, 322 U.S. 164, 176 (1944)21

United States v. Playboy Entertainment Group, Inc., 529 U.S.

OD sd septa ciecebbenpenanteednsicnaniddiascbiaaebeaatbianieaadiiiaisinlatie 19

United States v. Ries, 100 F.3d 1469 (9th Cir. 1996) cert.

CORTE: EFT AK. CORO BOTY veneisacsittnnaitasventtaamhcepcisneieiie: 24

STATUTES/RULES

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Be CER © Sa thiines skieniicicesnssibiabiiiarniicldielanciuaammiamanie 15

er As SE Aart Ee wissciconihesieetapuiaininiepiriileaitiaacaitii 15, 16, 17, 35

Fe es BR NTA iiviccshvibinsintitcbbesittiinbilcesaivsiiadaniaiaieaians passim

2B USA. OB S31, FSd, BOT PST Vv visivensecdsnseishdeiniideaiboancieitle ads 15

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Be CRs: BET AE wsinersssominincineisiaaibaaiaaiiaioacadaielan 15, 25

FRIAR Wi aicssssictnnniissiscitsciiiaaesliokashesenealnscieidasalitieap alma dinaaiaaae a 7, 22

PRA Sion isccsicssantiinnnercertnsiitsiccininnettcaiiacpaiianbaiabedigttigalinind 22, 30

MISCELLANEOUS

Admissions To the Federal Courts

SGD FAR Fi SES CAG OO vsknttivctivciitwinpccbniiectanciniblads 13

Federal Judicial Center, Manual for Cooperation Between State

ted Famers Cam On CTO) ia tsicinsthcenscetlinceshicnsticthceattniiiicadnsasiis 9

Judicial Conference, Working Papers of the Committee on

Rules of Practice and Procedure (Sep. 97).....:..c.sccsscesseeeee 12

OPINION BELOW

The United States Court of Appeals for the District of

Columbia Judgment, entered without an Opinion and not

reported, is set forth at Appendix, p. 1-3. The United States

District Court for the District of Columbia Judgment and Order

entering a Rule 12(b)(6) dismissal and denying petitioner’s

Motion for Summary Judgment are not reported, and are set

forth at App. p. 4-16.

STATEMENT OF SUPREME COURT JURISDICTION

The statutory provision for this Court’s jurisdiction is 28

U.S.C. § 1254. The decision of the United States Court of

Appeals for the District of Columbia to be reviewed was

entered November 24, 1999. A petition for rehearing en banc

was timely filed. An order denying rehearing en banc was filed

February 29, 2000. An order enlarging the time to file for

certiorari review until July 28, 2000 was filed on March 11,

2000 by JUSTICE JOHN PAUL STEVENS.

STATEMENT OF THE CASE

1. Introduction

A citizen’s right to associate and petition with counsel

in all federal courts is Constitutionally based and expressly

authorized by statute. 28 U.S.C. § 1654 (App. p. 18) The

central question sought to be reviewed is the legality of those

United States District Court “local” rules, that categorically

grant general bar admission privileges to newly minted

attorneys licensed in the forum State, and categorically deny

general bar admission privileges to highly qualified and

experienced attorneys licensed outside the forum State.

This Court in Theard v. United States, 354 U.S. 278,

281 (1957) recognized,

“The matter was compendiously put by Mr.

Justice Cardozo, while Chief Judge of the

New York Court of Appeals. "‘Membership

in the bar is a privilege burdened with

conditions’ (Matter of Rouss, {221 N. Y. 81,

84, 116 N.E. 782, 783]). The appellant was

received into that ancient fellowship for

something more than private gain. He became

an officer of the court, and, like the court

itself, an instrument or agency to advance the

ends of justice.”

This Court in Frazier v. Heebe, 482 U.S. 641, 649

(1987), held “the location of a lawyer's office simply has

nothing to do with his or her intellectual ability or experience in

litigating cases in Federal District Court.” (Emphasis added)

This Petition for Certiorari raises the closely related question

referred to and left unanswered in Frazier v. Heebe, namely,

whether Federal District Court local rules that categorically

discriminate, regardless of individual merit or need, against

federal practice lawyers licensed outside the forum State have

“anything to do with the lawyer’s intellectual ability or

experience in litigating cases in Federal District Court”? Jbid.

This question will be first viewed in light of this Court’s

analysis in Frazier v. Heebe. Recent public testimony

denouncing these local rules by respected arms of the bar will

be examined, and the challenged local rules will be shown to be

the progeny of the despised Supreme Court decisions in Dred

Scott v. Sandford 60 U.S. (19 Howard) 393 (1856) and Jn re

Lockwood, 154 U.S. 116 (1894). This issue will then be filtered

through the even more stringent “local” rule standards enacted

by Congress after Frazier v. Heebe was decided. This issue will

be directly examined in light of this Court’s First Amendment

jurisprudence concerning the freedoms of speech (advocacy),

association, and petition for redress of grievances in a federal

pubic forum. The challenged rules will be shown to be an

unprincipled and violent invasion of our Constitution and our

mother principles articulated in the Declaration of

Independence.

This Court should exercise its inherent supervisory

jurisdiction, as well as its statutorily delegated responsibility

over federal rules and procedure, and grant review because of

the nationwide reach of the questions presented that plumb the

limits of District Judge rule-making and because of the

astonishing specter of impropriety flowing from the decisions

below. The Court of Appeals one paragraph Judgment entered

without Opinion and without oral argument affirms a non-

published trial Court decision that was also entered without oral

argument; and petitioners were denied leave to amend their 50-

page Complaint. These procedural shortcuts in a case

challenging Federal District Judge “local” rule-making power,

and parochial hometown “local” attorney admission rules

throughout our Union that are alleged to be unconstitutional,

offends common notions of due process. The rule of men afraid

of a superstitious taboo has trumped the rule of law. Petitioners

submit the appellate Court’s one paragraph secret Judgment in

this First Amendment public forum case where our CHIEF

JUSTICE and other federal judges serving throughout our

Union are named defendants, is an admission by silence that the

petitioners’ arguments are unanswerable. Petitioners submit the

challenged “local” rules are conspicuously outmoded and

unlawful. In these circumstances, this Honorable Court has a

public trust and fiduciary duty to grant certiorari and answer

these questions presented.

y & The Petitioners, Respondents, and the Challenged

“Local” Rules

The petitioners are eminent, ethically qualified, and

experienced mobile federal practice attorneys. This Court has

often recognized that pro hac vice admission is not equivalent

to general admission. The petitioners who have been received

into that ancient fellowship for something more than private

gain, and who are instruments to advance the ends of justice,

seek general admission and full Federal District Court equal

bar membership privileges.

At the time the Complaint was filed, all of the

petitioners lived and lawfully worked as attorneys in

California.’ Two of the petitioners have since moved out-of-

* California Rule of Professional Conduct “1-100 (B)(1) Law Firm means:

two or more lawyers whose activities constitute the practice of law, and who

share its profits, expenses, and liabilities.” [defines “lawyers” as including

out-of-state lawyers and members of State Bar]

state. MONICA M. McKENZIE was in-house corporate

counsel for a publicly traded company. JEFFREY L. RUSSELL

is a _ retired Asst. United States Attorney. ROGER

LOWENSTEIN is a Harvard Law School graduate and former

Chief Federal Public Defender for the District of New Jersey.

BENITA KICHLER, was trademark counsel for a Fortune 500

company, overseeing 10,000 national and international

trademarks. RICHARD J. PACIULAN is a patent lawyer

admitted for over 20 years to the bar of the U.S. Patent and

Trademark Office. LOUISITO L. LOPEZ is an immigration

law specialist. ARTHUR MINTZ is a former bankruptcy

receiver. HOWARD SOBEN is a tax specialists and corporate

counsel for a charitable organization. DAVID ZISSER is a

federal tax and bankruptcy law specialist.

The respondents are the individual members of the

United States Judicial Conference. Except for CHIEF JUSTICE

REHNQUIST, each of the respondents also wears a “second

hat” as Chief Judge or representative of the Judicial Councils

for the Circuits. These respondents are also sued in that

representative official capacity. Congress, in 1988, delegated to

the respondents an affirmative and continuous supervisory duty

under 28 U.S.C. §§ 331-32 to review and superintend “local”

rules to make certain they are in accordance with the rule-

making standards set forth in 28 U.S.C. §§ 2071-72 as revised.

This subject will be subsequently addressed in greater detail.

The petitioners in their Complaint have requested

Declaratory Relief declaring that Federal District Court local

rules that categorically prohibit out-of-state attorneys from

general admission are unlawful. Petitioners have also requested

Injunctive Relief barring further enforcement of the challenged

rules. The trial Court held the petitioners have standing, or

could demonstrate standing if permitted to amend their

Complaint. The petitioners aver they are still being injured by

the challenged “local” rules, facially and as applied. The

petitioners also submit they have third party standing to assert

the First Amendment rights of their clients to associate and

petition. Department of Labor v. Triplett, 494 U.S. 715 (1990).

? This Court in Triplett reasoned, 494 U.S. at 720,

When, however, enforcement of a restriction against the

litigant prevents a third party from entering into a

The “local” attorney admission rules for the 93 United

States District Courts generally fall into three categories. The

first category authorizes general admission reciprocity to all

licensed sister-state attorneys.’ Petitioners do not challenge the

“local” rules of these 29 District Courts. The second category is

exemplified by the “local” rule of the United States District

_ Court for the District of Columbia.* This “local” rule is

challenged, and in pertinent part, declares out-of-state attorneys

get general admission reciprocity in the Federal District Court

for the District of Columbia, if District of Columbia local

federal bar members get general admission reciprocity in the

applicant’s hometown Federal District Court. The petitioners

were directly injured by this rule. The. trial Court denied

petitioners’ application to appear through their chosen counsel,

and refused to permit filing of their Complaint for almost two

months. Petitioners were required to prove they could not find

local lead counsel willing to champion this locally unpopular

federal claim. These challenged rules are not merely procedural

regulations, they impose substantive qualifications that

handicap the constitutional and statutory right to petition the

Federal District Courts.

The third category confines ge eneral admission to

members of the bar of the forum State.” The majority of local

attorney admission rules are in this challenged category. In the

third type, there is a sub-category. Three out of the four United

States District Courts for the Districts in California are in this

group. This putative fellowship not only confines general

admission to forum State attorneys, but goes further and

categorically forecloses even pro hac vice admission, if the

sister-state attorneys resides or works in the State of

relationship with the litigant (typically a contractual

relationship), to which relationship the third party has a

legal entitlement (typically a constitutional entitlement),

third-party standing has been held to exist.

> See App. Table p.20

* See App. Table 2 p. 20

* See APP. Table 3 p. 21

California.© These rules do not leave open any alternative

channel.

The petitioner instruments of justice are gagged and

categorically barred from associating and petitioning with their

clients regardless of individual merit or need, and thwarted

from championing locally unpopular causes in United States

District Courts that they pay for with their federal tax dollars.

Our Union cornerstones “all men are created equal,” and that

there shall be “no taxation without equal representation,” are

trampled by these challenged rules that either fully ban or

cripple access to United States District Courts.

3. The Decisions Below Ignore Material Facts That

Demonstrate The Challenged “Local” Rules Are

Arbitrary And Not Necessary, And They Prostrate The

Standard Of Review This Court Applied In Frazier v.

Heebe |

This Court in Frazier v. Heebe, supra, 482 U.S. 641 (1987),

in exercising its supervisory powers, over challenged Louisiana

Federal District Court local rules, applied a two pronged

heightened scrutiny “rational and necessary” standard of

review. This Court held, “We find both [local rule]

requirements to be unnecessary and irrational.” Jd. at 646. This

Court reasoned, “Complete exclusion is unnecessary.” Jd. at —

648. There is obviously no “necessary” prong in rational basis

review.

This Court, as a matter of law, as previously mentioned

held, “the location of a lawyer's office simply has nothing to do

with his or her intellectual ability or experience in litigating

cases in Federal District Court.” Jd. at 649. This Court also

recognized that, “Rules that discriminate against nonresident

attorneys are even more difficult to justify in the context of

federal court practice than they are in the area of state court

practice, where laws and procedures may differ substantially

from State to State.” Frazier v. Heebe, 482 U.S. at 647 n. 7.

And, “There is a growing body of specialized federal law and a

more mobile federal bar, accompanied by an increased demand

® See App. Table 4 p. 22

for specialized legal services regardless of state boundaries.”

Ibid.

Initially, the trial Court Opinion flagrantly misstates the

central facts. It states incorrectly that there is no federal

discrimination because,

“Under the local rules challenged here, all

lawyers of all states are presumably required

to be members in good standing of the bar of

- the state in which the federal court sits.”

(emphasis in original) (App. p. 9)

This factual conclusion is untrue and bizarre; 29 federal

district courts have adopted “local” rules that were cited to the

trial judge that extend equal Privileges and Immunities, equal

First Amendment freedoms, equal Full Faith and Credit, and

general admission to all sister-state attorneys in good standing.

Likewise, it is hard to fathom any “presumption” in the “you

get reciprocity if we get reciprocity” challenged Federal District

of Columbia local rule.

The decisions below, if truth and honesty is permitted,

also whitewash facts that show that there is not any reasonable

“competence” or “ethical” justification that would warrant

categorical forum State membership as an_ essential

precondition to Federal District Court general admission.

As to “competence,” Congress, in enacting 5 U.S.C. §

500 (App. p. 18) and in ratifying national appellate rule FRAP

46 (App. p. 18) has explicitly declared the necessary

qualifications and preconditions for practice before federal

administrative agencies and in the United States Courts of

Appeal. Membership in the bar of any single State is not an

essential precondition. The doors of these federal fountains of

justice are open to attorneys from every State. In a word, these

Acts of Congress and national rules extend equal First

Amendment freedoms, equal Privileges and Immunities, and

equal “Full Faith and Credit.”

As noted by this Court in Frazier v. Heebe, federal

jurisdiction does not stop at the State boundary. Federal

substantive law and procedure is uniform, supreme, and has

little to do with the law of any single State except in diversity

cases. Even in diversity cases, federal procedure is applicable,

and there can be a question of which State’s law should be

applied. Petitioners’ specialized area of federal practice, in

general, is not even tested on a bar exam. More particularly,

studies by the United States Judicial Conference indicate that

there is a direct competence correlation with experience, and

the best measure of competence is experience.

These facts illustrate there is no “competence”

justification that would warrant the categorical granting of

general admission privileges to newly minted attomeys forum

State attorneys, and categorical rejecting of general admission

privileges to experienced federal practice attorneys licensed

outside the forum State. Experienced federal practice attorneys

do not present a “clear and present danger” that would justify

these “local” rule prior restraints in a federal public forum.

There is also no reasonable “ethical” justification that

would warrant forum State bar membership as a categorical

precondition for district court admission. The material facts

whitewashed are as follows:

e This Court has squarely held geographical isolation or

difficulty in policing a nationwide bar membership does not

justify discrimination in bar admission. See Barnard v.

Thorstenn, 482 U.S. 546 (1989)

e This Court has squarely held an aitorney’s opportunity to

practice law is constitutionally protected Privilege and

Immunity, and there is no reason to presume or conclude an

out-of-state attorney will conduct his practice in a dishonest

manner. Barnard v. Thorstenn; Supreme Court of New

Hampshire v. Piper 470 U.S. 274 (1985).

” “(N)o one has yet devised an examination which will test one’s ability to

be a courtroom advocate.” See Report and Tentative Recommendations of

the Committee to Practice in the Federal Courts in the Judicial Conference

of the United States. 79 F.R.D: 187, 196. “Lawyers with previous trial

experience are much more likely to turn in very good performances, and it

permits the inference that experience improves the quality of trial

performance.” /d. at 196. There is a correlation between the quality of trial

performance and the prior experience of the attorneys evaluated. 83 F.R.D.

at 222.

e Federal courts are prohibited from relying conclusively on

State findings as the basis for attorney discipline. See

Federal Judicial Center, Manual for Cooperation Between

State and Federal Courts (1997) p. 78-79 (citing the Theard

doctrine, which holds although attorneys may be admitted

via the State, they are not necessarily automatically

terminated through the same channel).

e Even assuming the District Court wanted to reftr the

attorney to the forum State for ethical investigation, most

States claim ethical jurisdiction over any attorney who

works within the State, even if he or she is not locally

admitted. For example, under California Rule of

Professional Conduct 1-100 (D)(2)* (enacted in 1992), the

State Bar of California has jurisdiction over any sister-state

attorney working in California regardless of whether he or

she is admitted in California.

e Likewise, the law is clear that a State has ethical jurisdiction over

all of its attorneys regardless of where they work. See U.S. v.

Ferguson, 54 F.3d 825 (D.C. Cir. 1995)(holding New Mexico

ethics rule applies to a licensed New Mexico attorney working as

an Assistant U.S. Attorney in Washington, D.C.) Therefore, the

licensing State also has ethical jurisdiction regardless of the

geographical location where the attorney is working.

e In Keller v. State Bar of California, 496 U.S. 1, 13 (1990),

this Court, in 4 unanimous decision, held the State Bar of

California was equivalent to a “labor union,” and that it had

violated its members First Amendment rights.

Subsequently, the entire State Bar of California discipline

staff was shut down and sent home for wide spread abuse

and criminal lobbying. It is plainly irrational for “local”

rules to condition membership on a “labor union” that has

been shut down for ethical violations, and also has been

held by a 9-0 vote to have trespassed its members First

Amendment rights.

* “As to lawyers from other jurisdictions who are not members: These rules

shall also govern the activities of lawyers while engaged in the performance

of lawyer function in this state.”

Furthermore, the decisions appealed also overlook the

purpose and effect of the challenged “local” rules is anti-

competitive. Economic protection is not a legitimate federal

governmental interest. The District of Columbia local rule, i.e.,

you get reciprocity if we get reciprocity, demonstrates the sole

justification for this rule is private gain and economic

protection. A desire to grant a monopoly to members of the

local bar is an illegitimate justification. See FTC v. Superior

Court Trial Lawyers Assn. 493 U.S. 411 (1989)

“(U)itimately competition will produce not

only lower prices, but also better goods and

services.’ National Society of Professional

Engineers v. United States, 435 S. 679, 695

(1978). This judgment ‘recognizes that all

elements of a bargain — quality, service,

safety, and durability — and not just the

immediate cost, are favorably affected by

the free opportunity to select among

alternative offers." Trial Lawyers, supra,

493 U.S. at 423.

“That is equally so when the quality of legal

advocacy rather, than engineering design, is

at issue.” Jd. at 424.

The unreported trial Court decision and the one

paragraph Court of Appeals Judgment also cast aside this

Court’s application of the “rational and necessary” standard of

review. Instead, the trial Court applied the pure rational basis

standard. It is self-evident this Court applied a heightened

scrutiny “rational and necessary” standard, and not a rational

basis standard. First, as noted above, there is no “necessary”

prong in rational basis review. Second, Frazier v. Heebe was

also filed under the First Amendment. /d. at 643 n. 1. This

Court never reached the constitutional questions. Had this

Court reached the constitutional questions, it would have been

constrained to apply the strict scrutiny standard. The First

Amendment in plain and unmistakable language makes clear

the freedoms to speak as one chooses, and to associate with

whom one chooses, and to petition the Government for redress

of grievances — withdraws the entire subject from the national

authority. It is axiomatic that governmental interference in the

guaranteed First Amendment freedoms to speech, association,

and petition are subject to strict scrutiny review. Moreover, if

rational basis review were applicable, the Bill of Rights could

be swallowed whole anytime the government chooses. The Bill

of Rights would be nothing but a solemn mockery. Yesierday’s

newspapers would have the same force as our Constitution.

Petitioners submit the challenged rules that ban or

handicap access to United States Courts cannot pass the

“rational and necessary” standard of review articulated by this

Court in Frazier v. Heebe, 482 U.S. at 646, and they are thus

unlawful. In an era of a global economy, multi-jurisdictional

practice of law, mobile federal practice specialists, computers,

e-mail, and electronic information, the challenged rules are as

out of place as racial prejudice and courtroom spittoons.

4. The Decision Appealed Ignores Public Testimony That

Vilifies The Subject “Local” Rules By Respected Arms

Of The Bar: The Rules Are A Living Monument To The

Pre-Brown v. Board of Education Era of Jurisprudence

Many respected commentators have publicly declared

that the local attorney monopoly provided by the challenged

local district court rules stain the integrity of federal bench and

bar — and should be eliminated. The American Bar

Association has officially recommended a policy of reciprocal

admission in the federal district court. The ABA House of

Delegates, almost five years ago in 1995, adopted the following

formal conclusion and resolution #8: °

CONCLUSION — Given the global nature

of law practice today, parochial local rules

are inefficient, unduly costly to clients

and/or lawyers and anti-competitive.

BE IT RESOLVED, THAT the American

Bar Association supports efforts to lower

barriers to practice before U.S. District

Courts based on state bar membership by

eliminating state bar membership

requirements in cases in U.S. District

Courts, through amendment of the Federal

Rules of Civil and Criminal Procedure to

prohibit such local rules.”

This ABA House of Delegates resolution was served on

the respondent United States Judicial Conference and

accompanied by a report from Donna A. Killoughey, Chair of

the ABA Section of Law Practice Management. The report

emphasizes that local rules that require forum State bar

membership as a condition to admission in the U.S. District

Court are an “exclusionary and anti-competitive practice” that

“inhibits competition, restricts lawyers from representing

clients without incurring substantial cost of local counsel and

drives up costs to clients.”'° There has been no Judicial

Conference action taken with reference to this ABA

recommendation that calls for amending these rules. Except,

perhaps for filing it underneath the CHIEF JUSTICE’S (8-1)

dissenting opinion in Supreme Court of New Hampshire v.

Piper, 470 U.S. 274 (1985). It is further widely reported in the

legal newspapers the CHIEF JUSTICE hates his administrative

duties with the Judicial Conference. There has been no

publication of this proposed rule or opportunity to comment,

which petitioners submit is a violation of the Judicial

Conferences rules. Defense counsel below admitted that no

action has been taken on the ABA’s recommendation.

The National Bankruptcy Review Commission,

established by the Bankruptcy Reform Act of 1994, has

officially recommended national lawyer admission in

bankruptcy courts.

Professor Charles Wolfram, the Reporter for the

American Law Institute, concludes, “[T]o an observer,

membership in the bar of the federal courts looks like the work

* See Judicial Conference, Working Papers of the Committee on Rules of

Practice and Procedure (Sep. 97) p. 37

Ibid.

of petty fiefdoms of medieval Europe . . . Someday, sensibly

admission to the federal courts will be federal in nature.”

Wolfram, Modern Legal Ethics (1986), § 15.2.4 p. 853. See

also New York County Lawyers’ Association Report Of The

Committee On The Federal Courts On Pro hac vice Admissions

To the Federal Courts 169 F.R.D. 390, 415 (1997)

Conclusion: Stunning changes in technology and the

increasingly national scope of federal practice have

made the Association Rule an expensive and

burdensome anachronism. Too many litigants and

attorneys no longer recall the origina) reasons for the

rule which now appears to many to be nothing more

than judicially-sanctioned feather-bedding. These

‘territorial restrictions ‘on interdistrict competition

among attorneys’ which unjustifiably increase the cost

of legal_services to consumers by compelling

unnecessary retention of additional lawyers’ must be

eliminated. The Association Rule gives rise to criticism

by the general public about the legal process and clearly

injures the image of both the bench and bar. For too

long the legal community has not heeded the need for

change. The case for eliminating the Association Rule is

presently overwhelming. The time to act is now.

(emphasis added)

The above comments denouncing the challenging local

rules are just the tip of an iceberg of opposition by respected

commentators and practicing specialists in federal law. The

non-published one paragraph Judgment whitewashes these

public testimonials by respected integral arms of the profession.

This dysfunctional judicial decision-making stems from the

recognition that the legal questions presented in this case are

best addressed and answered by this Honorable Court.

Additionally, as stated by Justice Oliver Wendell Homes, Jr.,

“jt is in the nature of man’s mind. A thing which you have

enjoyed and used as your own for a long time, whether property

or an opinion, takes root in your being and cannot be torn away

without your resenting the act and trying to defend yourself,

however you came by it.””'

The challenged rooted rules, however, are the offspring

of the most reviled decisions in the history of this Court. In

Dred Scott v. Sandford 60 U.S. (19 Howard) 393 (1856) it was

held the “privileges and immunities” guaranteed to all citizens

of the United States do not apply to Negroes. Accordingly,

Dred Scott, who was born a Negro slave, was not permitted the

“privilege and- immunity” under the Constitution to sue in the

courts of Missouri. In Bradwell v. Illinois 83 U.S. (16 Wall)

130 (1872), this Court held a State could refuse to admit a

woman to the practice of law solely because of her sex. A

concurring opinion of three Justices pointed to the differences

between a male and female which proved conclusively that the

right to practice law could not be claimed as a fundamental

“privilege or immunity.” Jd. at 141-142. “[T]he paramount

destiny and mission of a woman are to fulfil (sic) the noble and

benign offices of wife and mother. This is the law of the

Creator. And the rules of civil society must be adapted to the

general constitution of things.” J/bid. Likewise, In re

Lockwood, 154 U.S. 116 (1894), Belva Lockwood, an

experienced female attorney, was denied admission to practice

in the State of Virginia despite a statute which authorized

admission to the bar of any person who had been admitted to

the bar of another state. Following Bradwell, the Court held

admission to practice law was not a “privilege or immunity”

protected by the Constitution. These holdings are obviously

from another era. The challenged local rules, however afford

the petitioners the same constitutional rights as Dred Scott and

Belva Lockwood. While these reviled Supreme Court decisions

have been overturned, the challenged local rules remain as the

putative federal law.

Supreme Court Justice Robert Jackson has been quoted,

“the fact is the most important part of a judge’s work is the

exercise of judgment and that the law in a court is never better

than the common sense judgment of the judge that is

'! The Essential Holmes p. 176 (edited by Richard A. Posner)(1992)

presiding.”'? It follows then that the law applied in the Federal

District Court can never be better than the judgments of this

Honorable Court. Thus, petitioners submit this Court should

grant certiorari review and answer the questions presented.

5. The Decision Appealed Flies In The Face Of The

Statutory Standard of Review For Local Rules

Proscribed by 28 U.S.C. §§ 2071-72

After this Court’s decision in Frazier v. Heebe,

Congress subsequently (in 1988) substantially rewrote the law

applicable to Federal District Court “local” rules. Congress

proscribed an even more rigorous and exacting standard of

review. As a result of the widespread Opposition to the

proliferation of balkanized “local” district court rules, Congress

enacted Title IV of the 1988 Judicial Improvements and Access

to Justice Act (Pub.L. 100-702). That law entirely revised 28

U.S.C. §§ 331, 332, 2071-2077. Congress found that there was

“a proliferation of local rules, many of which conflict with the

national rules of general applicability.” See generally Siegel,

Commentary on 1988 Revision (text after 28 U.S.C.A. 2071) p.

520-23. The main Congressional objections to the “local” rule

making process was that they were often enacted without public

notice or opportunity to comment from anyone other than the

local bar; and there was virtually no opportunity for judicial

review, as the judges who make the rules determine whether

they are lawful. An affirmative mandatory supervisory

obligation was placed on the respondents to periodically review

all local rules to “for consistency with federal law,” and to

promote uniformity of procedures, and the expeditious conduct

of court business. 28 U.S.C. § 331; See also 28 U.S.C. §

332(d)(4). There is no such thing as a rule becoming sacrosanct

merely for having passed judicial council scrutiny the first time.

(text after 28 U.S.C.A. 2071 at 522). It is subject to on-going

scrutiny, as are all rules in existence on December 31, 1988.

Ibid.

As rewritten and effective January 1, 1989, 28 U.S.C. §

2071(a) provides,

'? Eugene C. Gerhart, America’s Advocate: Robert Jackson, p. 59.

The Supreme Court and ail courts

established by Act of Congress may from

time to time prescribe rules for the conduct

of their business. Such [local] rules shall be

consistent with Acts of Congress and rules

of practice and procedure under Section

2072 of this title. (Emphasis added)

28 U.S.C. § 2072 (b) [also incorporated in 28 U.S.C. §

207 l(a) by reference] in pertinent part provides,

Such [local] rules shall not abridge, enlarge

or modify any substantive right. (Emphasis

added)

“Shall” means mandatory. There is no room for the exercise of

discretion. The Congressional limit on power to adopt “local”

rules makes perfect sense. Congress and the President in our

tripartite republican system have the power to make the law.

They stand for reelection and answer to the people. The role of

federal judges is not to legislate, but to decide cases and

controversies. In making “local” rules, Congress, by statute, has

expressly preempted and deliberately curtailed the rule making

authority of District Judges. It is plain these balkanized

hodgepodge rules offend the intent of Congress to promote

federal uniformity. Likewise, according to the Great Chief

Justice John Marshall “the judicial opinions of all parts of the

Union should be the same.” 8 The Papers of John Marshall

148-49 (Chapel Hill: U. N.C. Press, 1995)

A. The Decision Appealed Is Fundamentally Flawed As

The Challenged Local Rules Abridge, Enlarge, And

Modify Constitutionally Protected Privileges and

Immunities

In Supreme Court of New Hampshire v. Piper, supra, 470

U.S. 274 (1985), this Court held an attorney’s opportunity to

practice law is a “fundamental right” for a variety of reasons.

The Court, in applying the strict scrutiny standard of review,

explained:

The lawyer's role in the national economy is

not the only reason that the opportunity to

practice law should be considered a

"fundamental right." We believe that the

legal profession has a noncommercial role

and duty that reinforce the view that the

practice of law falls within the ambit of the

Privileges and Immunities Clause.[fnl 1]

Out-of-state lawyers may - and often do -

represent persons who raise unpopular

federal claims. In some cases, representation

by nonresident counsel may be the only

means available for the vindication of

- federal rights.'?

The 14" Amendment also has a textual Privileges and

Immunities Clause. If an attorney’s opportunity to practice law

is constitutionally protected by Article IV § 2 Privileges and

Immunity, it follows an attorney’s opportunity to practice law is

also incorporated and equally protected by the 14° Amendment

Privileges and Immunities Clause. This Court in Saenz v. Roe,

526 U.S. 489 (1999) crushed the fiction arising from the 1870

Slaughterhouse Cases'‘ there was a constitutional difference

between Article IV § 2 Privileges and Immunities and 14”

Amendment Privileges and Immunities. If the States cannot

discriminate against citizens and residents concerning

constitutionally protected Privileges and Immunities under the

14" Amendment, it follows that neither can District Judges.

This Court has repeatedly held that even Congress cannot

abridge 14 Amendment protections. The constitutional norm

under the Privileges and Immunities Clause is comity. Austin v.

New Hampshire, 402 U.S. 656 (1975).

The challenged “local” rules dishonor the norm of comity

made mandatory by the “shall be consistent” language of 28

U.S.C. § 2071(a), and are thus unlawful. These challenged rules

further contravene 28 U.S.C. § 2072(b) as they abridge and

modify the Privileges and Immunities of out-of-state bar

'3 Td. at 281

* 16 Wall (83 U.S.) 36 1873

members, and enlarge the Privileges and Immunities of forum

State bar members. The District of Columbia rule, i.e. you get

reciprocity, if we get reciprocity — abridges, enlarges, and

modifies constitutionally protected Privileges and Immunities

in one stroke. The First Amendment freedoms are also

constitutionally protected Privileges and Immunities.

B. The Decision Appealed Is Fundamentally Flawed As

The Challenged Local Rules Abridge, Enlarge, And

Modify The First Amendment Freedoms To Speech,

Association, And Petition For Redress Of Grievances In

A Public Forum

The First Amendment freedoms are modified and

infringed by the challenged local rules. Obviously, the privilege

to petition the Federal District Court is not free, as only forum

State attorneys are entitled to petition, and the attorneys from

49 States have to pay these attorneys a royalty fee to obtain

limited partial petition rights. The local rules are statutorily

unlawful as they enlarge the First Amendment rights of forum

State attorneys, and modify and abridge the First Amendment

rights of out-of-State attorneys. The same holds true with

litigants who also have a First Amendment right to associate

and petition.

The home-town decisions below also fail to examine or

adhere to this Court’s First Amendment jurisprudence. The

subject trinity of sacred freedoms encompasses both protected

expression and conduct in a public federal forum. The First

Amencment reflects “a profound national commitment to the

principle that debate on public issues should be uninhibited,

robust, and wide-open.” New York Times Co. v. Sullivan, 376

U.S. 254, 270 (1964). The First Amendment is a prized

American privilege to speak one's mind in all public

institutions, and it includes the opportunity for vigorous

advocacy. Id. at 269 The government can exclude a speaker

from a traditional public forum, "only when the exclusion is

necessary to serve a compelling state interest and the exclusion

is narrowly drawn to achieve that interest." Cornelius v.

NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800

(1985). In the realm of private speech or expression,

government regulation may not favor one speaker over another.

Members of City-Council of Los Angeles v. T, axpayers for

Vincent, 466 U.S. 789, 804 (1984).

It is difficult to fathom any rights with more

constitutional protection than the trinity of separate and

cumulative First Amendment freedoms asserted in this Petition;

and petitioners’ clients’ First Amendment freedoms asserted via

third party standing. The challenged local rules plainly

encumber the First Amendment freedoms. The challenged local

rules are plainly not “uninhibited, robust, and wide-open.” The

decisions below rocket over these issues, and do not even

address the association, petition, and third-party issues.

Last term, in United States v. Playboy Entertainment

Group, Inc., 529 U.S. ____ (2000), this Court struck down a

Congressional statute that required cable television operators

who provide channels primarily dedicated to sexually oriented

programs either to fully scramble or otherwise block those

channels or to limit their transmission to hours when children

are unlikely to be viewing. All nine justices agreed that the

speech involved was defined by its contents, and the challenged

law was a “content” based restriction. That is the speech

involved applies only to channels dedicated to “sexually

explicit adult programming or other programming as defined as

indecent.” All nine justices agreed that the standard of review

was strict scrutiny, including the less restrictive alternative test,

and that the government had the burden of proof. The Court

split as to whether that strict scrutiny test had been met. As

stated in the majority opinion, “Laws designed or intended to

suppress or restrict ific ers contradict basic First

Amendment principles.” (emphasis added) Jd. at _. In other

words, as again elucidated in Playboy, the First Amendment

applies to the message and the messenger. Speaker

discrimination is a son of “content” discrimination. The

challenged rules are content and speaker discrimination as they

are “designed or intended to suppress or restrict specific

speakers” /bid., like petitioners and others similarly situated. As

such, the challenged rules “contradicts basic First Amendment

principles.” bid. It is plain that if restrictions placed on

sexually explicit programming must pass strict scrutiny review,

restrictions placed on petitioner members of the bar must also

pass strict scrutiny review.

Petitioners’ submit these challenged local general

admission rules are “overbroad.” They constitute either

“speaker discrimination” or “viewpoint discrimination.” Only

local attorneys are fully privileged to speak or state their views.

The petitioners do not present a “clear and present danger” that

would justify this kind of “speaker discrimination” and “prior

restraint” in a public federal forum.

Additionally, last term in California Democratic Party

v. Jones, 530 U.S. __ (2000), this Court held that California’s

blanket primary violates the political party’s First Amendment

right of association. There, as in this petition, the challenged

local rules force petitioners to adulterate their selection process,

by forcing association to persons otherwise unaffiliated, and

this compelled association is unlawful as it changes the party’s

intended message and messenger.

Similarly, last term in Boys Scouts of America v. Dale,

530 U.S. ___ (2000), this Court held New Jersey’s public

accommodation law that supported a gay scoutmaster violated

the Boys Scouts’ First Amendment right of expressive

association. This opinion written by CHIEF JUSTICE

REHNQUIST reaffirmed the principle that forced membership

is unconstitutional if the person’s presence affects in a

significant way the group’s ability to advocate public or private

viewpoints. In the instant petition, the challenged local rules

affect in a significant way both the petitioners’ ability to

advocate public or private viewpoints, and their First

Amendment rights to associate and petition for redress of

grievances. Following California Democratic Party and Boy

Scouts the challenged local rule forced association and petition

is unlawful, because the rules cannot pass a narrowly tailored

compelling state interest test. CHIEF JUSTICE

REHNQUIST’S majority opinion in Boy Scouts is

irreconcilable with the putative defense of the challenged local

rules asserted by his counsel.

Additionally, this Court in First Amendment

jurisprudence, in conjunction with the Equal Protection Clause,

has ruled that classifications that discriminate in the ability to

exercise First Amendment rights are not subject to rational

review, but instead are subject to strict scrutiny review. Police

Dept. of Chicago v. Mosley, 408 U.S. 92 (1972). The

challenged local rules discriminate in the ability to exercise

First Amendment rights because forum State attorneys can

speak (advocate), associate with whom they choose, and

petition on behalf of their clients and associates, and other

federal practice specialists from outside the forum State cannot.

Following Mosley, once a forum is opened up to assembly or

speaking by some favored members of the bar, government

may not prohibit others members of the bar from assembling or

speaking or petitioning, without passing a strict scrutiny

standard of review.

The suggestion petitioners can associate and petition in

other public forums and federal courtrooms, they just cannot

associate and petition in the subject district courts, shrinks

petitioners, as well as their client’s and associate’s, most sacred

First Amendment rights — into cheap trinkets. One is not to

have the exercise of his liberty of expression in appropriate

places abridged on the plea that it may be exercised in some

other place. See Schneider v. United States, 308 U.S. 147, 163

(1939). This Court has “consistently refused to overlook an

unconstitutional restriction upon some First Amendment

activity simply because it leaves other First Amendment

activity unimpaired.” California Democratic Party, supra, 530

US.at__.

Petitioners submit the challenged local rules cannot pass

Statutory review because they modify and enlarge First

Amendment rights. The challenged local rules also cannot pass

First Amendment strict scrutiny review.

C. The Decision Appealed Is Fundamentally Flawed As

The Challenged Local Rules Abridge, Enlarge, And

Modify Rights Protected By The Supremacy Clause

The decisions below conspicuously fail to address the

petitioners’ argument that the subject local rules violate the

Supremacy Clause. In McCullough v. Maryland,'* it was held

the Supremacy Clause precludes a state from levying a tax on

the operations of the United States government. This Court has

held that “possessions, institutions and activities of the Federal

Government itself in the absence of congressional consent are

not subject to any form of state taxation.”'® Congress has

'S17US. (4 Wheat) 316 (1819)

'® United States v. Allegheny County, 322 U.S. 164, 176 (1944)

specifically declared in 28 U.S.C. §§ 2071-72 that “local” rules

shall be consistent with national rules and Acts of Congress.

The privilege to use federal administrative agencies and

appellate courts are not conditioned on the payment of local bar

user fees. The challenged “local” rules violate the Supremacy

Clause because they condition the privilege to petition the

federal district court on the payment of local bar taxes. Local

Federal District Judges in the absence of Congressional

authorization do not have the authority to “tax” or place any

encumbrance on the use of the federal courthouse. Federal

District Courts obviously do not have the right to condition

federal bar membership on owning local property in the forum

State. It follows then, that the challenged local rules, which add

forum State conditions to exercise federal rights, violate the

Supremacy Clause.

D. The Decision Appealed Is Fundamentally Flawed As

The Challenged Local Rules Are Inconsistent With 5

U.S.C § 500, FRAP 46, And Title VII

The challenged local rules that confine bar admission to

lawyers of one State, or some other limited reciprocity, are

further inconsistent with numerous other Congressional

statutes. Neither 5 U.S.C § 500(b) nor FRAP 46(a) restrict bar

membership to the tawyers of any one State. Instead, as the

Constitution is color blind, Congress has affirmatively opened

the doors to the federal court to merit and bar members from

each and every State.

The challenged Federal District Court local rules are

inconsistent with 5 U.S.C § 500 and FRAP 46 because they add

substantive qualifications that were not imposed by Congress. It

is plain that “local” rules cannot lawfully add conditions to

those expressly stated by Congress. In U.S. Term Limits, Inc. v.

Thornton, 514 U.S. 779 (1995), the State of Arkansas attempted

to impose term limits on federal elected officials. This Court

held the State, even by way of State constitutional amendment,

does not have the power to directly or indirectly add to the

qualifications prescribed in the Constitution. By parallel

reasoning, it follows Federal District Court local rules cannot

add to, or modify, the norm of comity expressly prescribed by

Congress in enacting 5 U.S.C. 500 and in affirming national

rule FRAP 46.

Congress, in enacting 28 U.S.C. §§ 2071-72, has

expressly stripped district court judges of the ability to modify

its Acts. The Congressional mandate is that “local” rules shall

be consistent with Acts of Congress and the national rules of

practice and procedure.” Thus, the challenged local rules are

statutorily unlawful as they add and modify qualifications to

those expressly declared by Congress, and they enlarge the

substantive rights of forum State attorneys.

The challenged rules further trespass the Title VII

Regulations. Contrary to the conclusion of the trial Court, Title

VII is applicable to all federal licensing. Congress, acting

through the E.E.O.C., has specifically concluded that there is a

need for uniform federal selection in licensing and

certification.'’ An express Congressional purpose of Title VII is

2 apply to federal licensing.'® Title VII applies to any selection

for any employment, membership or licensing

decision.” Under Title VII Part 1607, when two or more

selection procedures apply, and are available for the same

purpose, the selection procedure that is the least restrictive

alternative applies.” Title VII is interpreted broadly | to reach all

disparate or unequal treatment selection procedures.”' The local

rules for admission obviously concern federal licensing and

certification. There is no business necessity for the challenged

disparate federal licensing procedures. The decisions below, by

preconceived design, whitewash all of this law without any

explanation. There is not an atom of difference between

admission rules and federal licensing opportunities that

discriminate based on outdated notions of race or gender, and

the challenged local rules that stereotype based on outdated

notions of which State in our nation the attorney originates.

'” See App. Table 5 p 22. ; 29 CRF § 1607-UNIFORM GUIDELINES ON

EMPLOYEE SELECTION PROCEDURES (1978); 29 CRF § 1607.1

Statement of purpose.

'§ See App. Table 5 p. 23 ; 29 CRF § 1607.1 B -- Purpose of guidelines.

'? See App. Table 5 p. 23 ; 29 CRF § 1607.2 B -- -- Employment decisions

0 See App. Table 5 p 24 ; 29 CRF § 1607.3 Discrimination defined.-

Relationship between use of selection procedures and discrimination.

B. Consideration of suitable alternative selection procedures.

2! See App. Table 5 p. 23 ; 29 CRF § 1607-11 Disparate treatment,

6. The Trial Court’s Application Of The Rational Basis

Standard of Review Is Clearly Erroneous, And The

Decision Appealed Relies On Law That Is Not Relevant

Or Is Facially Flawed

The only Supreme Court decision the trial Court relied upon

was Leis v. Flynt, 439 U.S. 438, 443 (1979), recognizing “The

Constitution does not require that because a lawyer has been

admitted in one state; he or she must be allowed to practice in

another.” (App. p. 9) Leis v. Flynt is not applicable, however,

because it was not decided under the First Amendment, the

Sixth Amendment, or the Privileges and Immunities Clauses.

Leis v. Flynt is also inapplicable because it predates Supreme

Court of New Hampshire v. Piper, Frazier v. Heebe, and the

1988 Judicial Improvements Act. Moreover, Leis v. Flynt has

been overruled sub silentio in virtually every circuit.“ This

Court has also subsequently squarely held it is unconstitutional

to grant an official “unfettered discretion to deny a permit

application.” City of Lakewood v. Plain Dealers Publishing

Company 486 U.S. 750, 108 S.Ct. 2138, 2152 (1988) In

essence, JUSTICE JOHN PAUL STEVENS dissent in Leis v.

Flynt, has in 21 years superceded the majority.

Additionally, the First Amendment, Supremacy Clause,

and 1988 Judicial Improvement Act claims presented in this

case are one of first impression. The subject Federal District

Court rules have never been challenged or examined in light of

these claims by any federal court anywhere in a published

decision. The trial Court summarily dismissed these claims by

applying a rational basis standard of review: Despite the

obvious fact that rational basis standard of review flies in the

” See U.S. v. Childress, 58 F.3d 693, 736 (D.C.Cir. 1995)(“The deprivation

of his counsel of choice would entitle [petitioner] to a reversal of his

conviction as a matter of constitutional right.) Accord United States v. Ries,

100 F.3d 1469 (9" Cir. 1996) cert. denied. 117 S.Ct. 2526 (1997)(held a

defendant’s right to the counsel of his choice includes the right to have an

out-of-state lawyer admitted pro hac vice.”); Schlumberger Technologies,

Inc. v. Wiley, 113 F.3d 1553 (11® Cir. 1997)(held binding circuit precedent

requires a showing of unethical conduct of such a nature as to justify

disbarment of a lawyer admitted generally to the bar of the district court in

order to justify the denial of an applicant's pro hac vice admission.)

teeth of the “shall be consistent,” and “shall not abridge,

modify, or enlarge” conditions made mandatory by 28 U.S.C.

§§ 2071-72. The rational basis standard for local rules has been

supplanted and expressly preempted by Congress: Not to

mention the Constitution.

The trial Court also applied the rational basis standard, and

departed from the heightened scrutiny applied in Piper and

Frazier, based on the decision in Giannini v. Real, 911 F.2d

354 (9° Cir. 1990) cert. denied 498 U.S. 1012, (1991), and

other similar earlier circuit court decisions. The trial Court’s

ostrich like reliance on Giannini v. Real, cited ten times as the

basis for this decision, is misplaced for several reasons. That

decision entered ten years ago, was not argued or decided under

the First Amendment, Supremacy Clause, or the arguments

submitted in this case. That case was decided before Saenz, and

not under the 14" Amendment Privileges and Immunities.

There would never be any advance in civil rights law if Courts

did not incorporate the most recent decisions in their analysis;

or if attorneys upon losing a case were thereafter barred from

arguing a similar case.

Equally important, Giannini v. Real, is facially wrongly

decided. This case was decided on May 8, 1990, yet it cites the

outdated law, as it existed prior to the 1988 amendments to 28

U.S.C. § 2071-72. See 911 F.2d at 360 where the Ninth Circuit,

in Section B, analyzes the issue under the Rules of the Supreme

Court. Compare that to 28 U.S.C.A. § 2071 and the

immediately following Commentary on 1988 Revision by the

reporter David D. Siegel, p. 521; is

“. . in the 1988 amendment and its reference

to the Supreme Court in the second sentence

was struck out and a reference to § 2072

substituted. The change . . .adopted with the

district courts primarily in mind, requires

rules promulgated on the authority of § 2071

to conform to the requirements of § 2072

instead of merely to rules promulgated by

the Supreme Court.”

There is an enormous difference between the law as

amended effective January 1, 1989, both in language and intent,

and the prior law denounced by Congress that was relied upon

by the Ninth Circuit. (And again below.) This Ninth Circuit

misfeasance in relying on the outdated law in 1990 that

Congress expressly disapproved and denounced by enacting a

plethora of statutory revisions proves beyond any doubt that

Giannini v. Real was wrongly decided and it is not applicable to

the instant case in view of the 1988 Amendments to 28 U.S.C

§§2071-72. In a word, the decision in Giannini v. Real, is not

only factually and legally distinguishable, it was facially flawed

and outdated the day it was filed.

ARGUMENT

The Court Should Exercise Its Supervisory Power And

Grant Review Because The Judgment Entered Without

An Opinion Undermines The Integrity Of The Federal

Bench And Bar, And This Case Presents An Important

Question Of Federal Law That Cannot Go Unanswered

Without Causing Further Litigation And Attack On The

Federal Judiciary

Review should be granted as the questions presented in

this case concern a usurpation of the Congressionally required

uniformity with insidious encroachments on the cornerstones

our American birthrights. These founding first principles

include: all men and women are created equal; there shall be no

taxation without equal representation; that our Union is one of

checks and balances; that each citizen shall be free to speak and

advocate as he thinks and to associate with whom he chooses,

and shall be entitled to equal privileges; that the government _

shall not interfere with the people’s sacred right to petition the

government for redress of grievances; that merit not special

privileges will be its guiding principle; that our government is

of the people, for the people, and by the people — and not one of

special interests. ;

Each and every one of these founding principles is

being shorn by the challenged rules. Attorneys are not treated

equally. Petitioners pay with their federal tax dollars for the

federal courts, and the justice dispensed therein, yet they are

denied the right to equal representation and participation. They

are denied the equal privilege to check and balance the

pestilential growth of local partisan privileges. The challenged

rules grant special privileges not equal privileges. Merit is not

the touchstone. Local primogeniture is the touchstone.

This Court has already stated the challenged federal

rules are “difficult to justify.” Thirteen years ago, this Court

recognized that, “Rules that discriminate against nonresident

attorneys are even more difficult to justify in the context of

federal court practice than they are in the area of state court

practice, where laws and procedures may differ substantially

from State to State.” Frazier vy. Heebe, supra, 482 U.S. at 647

n. 7. At that time fax machines were just becoming popular and

the computer information age was in its infancy. By contrast, in

this new millennium, 24-7 instant DSL internet access to all

State and federal statutes, cases, rules, and regulations is

available by mouse point and click. Many commentators have

Suggested that the challenged “local” rules are “feather-

bedding” or from the “feudal” era and should be eliminated.

This Court should not continue to let a hardening of-the judicial

arteries sacrifice our citizens’ lifeblood in this electronic

information age.

This Court should further grant review as this Case is

based on a nationwide constitutional injury that breeds a

nationwide disrespect for the bench and bar. Petitioners, as

members of the bar have been received into that ancient

fellowship for something more than private gain. They have

conducted themselves professionally and honorably in

conformity with their obligation to champion locally unpopular

causes and vindicate federal rights. They validly could have

named each and every JUSTICE of this Court as a defendant in

this action. They chose to not embarrass this Court, and start an

ignoble precedent wherein Supreme Court JUSTICES are

named as supervisory defendants in federal district court local

tule challenges. The petitioners also have not yearned for the

occasion to sue the Judicial Conference or Judicial Circuits for

the opportunity to earn a living and compete in the race for life.

However, this is the year 2000. The petitioners are mobile

specialists in federal law. They have no other choice but to

seek the necessary reform other than by way of litigation. The

Judicial Conference doesn’t even have a proposed rule in the

pipeline, despite five years ago being notified of the need for

change by the American Bar Association. The secret decision

of the D.C. Circuit further illustrates that changes in “local”

rules are not going to by inade by local judges.

This Court should further grant review as the petitioners

have not been provided a full and fair opportunity to present

their case to an open forum. The petitioners requested and were

repeatedly denied the opportunity for oral argument in both the

trial and appellate courts. Even Dred Scott and Belva

Lockwood were given an opportunity to appear and be heard,

and to have their claims decided in a published decision. In this

case, Federal District Court rules that predate Brown v. Board

of Education have been rubber-stamped in a single paragraph,

without oral argument, and without a written appellate opinion.

This is a significant glaring departure from the rule of law that

warrants review.

This Court should grant review because its very purpose

is to provide a supreme judicature where error and local

partiality will ultimately be corrected. Harvard professor and

world-renowned scientist, Edward O. Wilson, in his book

CONSILIENCE — The Unity of Knowledge (1998 Vintage

Books), writes

Contract formation is more than a cultural

universal. It is a human trait as

characteristic of our species as language and

abstract thought, having been constructed

from both instinct and high intelligence. ...,

we know that contract formation is not

simply the product of a single rational

faculty. that operates equally across all

agreements made among bargaining parties.

Instead, one capacity, the detection of

cheating is developed to exceptional levels

of sharpness and rapid calculation. Cheater

detection stands out in acuity from mere

error detection and the assessment of

altruistic intent on the part of others. It is

furthermore triggered as a computation

procedure only when the cost and benefits of

a social contract are specified. More than

error, more than good deeds, and more even

than the margin of profit, the possibility of

cheating by others attracts attention. It

excites emotion and serves as the principal

source of hostile gossip and moralistic

aggression by which the integrity of the

political economy is maintained. Id. at 186-

87.

Petitioners, if truth and candor can be forgiven —

maintain the local rules as well as the secret decision appealed

— is cheating. This cheating is beneath the integrity of all

federal courts. Truth and justice are first principles in all human

affairs. The decision appealed is untrue and unjust because it

does not disclose or review the facts and law that have been

submitted. It has been said that injustice is of two kinds. One

kind is by those who directly commit an injustice. The second

is by those who have a duty to protect others from injustice, and

who shrink from that duty. Both of these injustices are merged

in the present petition. This is the very worst injustice because

when injustice occurs in the court, there is no justice. When

inequality occurs in the courts, there can be no equality. _-

This Court has a public trust: And by definition a

fiduciary duty. In the famous words of Justice Cardozo, “A

trustee is held to something stricter than the morals of the

market place. Not honesty alone, but the punctilio of an honor

the most sensitive, is then the standard of behavior.” The

decision appealed cannot be cited as precedent because it is

nonpublished. These issues and the legal arguments submitted

are not going to magically disappear. In the words of President

Truman, “the buck should stop here” with this Honorable

Court, as this Court has the ultimate supervisory responsibility.

Counsel for CHIEF JUSTICE REHNQUIST and the

respondents will request that this Honorable Court disregard its

public trust and deny review. Defense counsel’s request parsed

to its core is that this Court should continue the “code of

silence.” Defense counsel’s argument is the A.B.A.

endorsement of federal district court reciprocity, and the other

denunciations of the challenged “local” rules by respected arms

of the bar, need not be held up to the antiseptic noonday

sunlight of the public square. Defense counsel’s argument is

that this Court should place its respect for and friendship with

the CHIEF JUSTICE and its fellow judges above its oath of

office and the Constitution. Defense counsel’s argument, in

principle, is this Court should act as a Star-chamber; Judge

made rules like King made rules should be immune from

review.

This Court should reject defense counsel’s claims

because this case presents a pervasive inequality antithetical to

the core principles of our American creed. These questions cry

out for an answer by this Honorable Court. Petitioners submit,

additionally, that if their arguments are invalid, and this Court

believes the challenged rules should be affirmed, than this

Court should grant review and publish its reasons and holding.

This Court has an obligation to discharge its high duties

with such ability, firmness, and moderation, as to command the

respect, and retain the confidence of our nation. We must be

able to believe in the spotless purity of the judges of this sacred

tribunal. A failure to exercise this Court’s supervisory

responsibility is unthinkable as it will impair the dignity of this

Honorable Court, and foment further direct assault on this altar

of justice. If review is not granted, these claims will necessarily

be pressed with increased devotion and fervor. If review is not

granted, this Court will be affixing the seal of approval on

inherently unequal privileges, unequal First Amendment rights,

and secret decisions, when 220 years of judicial precedent

establish that secrecy is not congenial to truth-seeking, and that

no man can be a judge in his own case.

For all of the foregoing reasons, the Petitioners request

this Honorable Court grant certiorari review, emancipate

federal practice attorneys from the chains of slavery, and

invalidate Federal District Court local general admission rules

that do not cohere with 5 U.S.C. § 500(b) and FRAP 46(a).

Dated: July 24, 2000

Respectfully submitted,

JOSEPH R.GIANNINI,

Attorney for Petitioners.

MCKENZIE et al

2950 Bentley Ave. #2

Los Angeles, CA 90064

Phone 310 914 8493

Fax 310 473 5468

No. 99-5005

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Monica M. McKenzie, et al.,

Appellants

William H. Rehnquist, Hon., Chief Justice of the Judicial

Conference of the United States, et al.,

Appellees

November 24, 1999, Filed

SUBSEQUENT HISTORY:

Reported in Table Case Format at: /999 US App. LEXIS

37926.

PRIOR HISTORY:

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLUMBIA.

97cv01792.

DISPOSITION:

Affirmed.

COUNSEL:

For MONICA M. MCKENZIE, JEFFREY L. RUSSELL,

ROGER LOWENSTEIN, BENITA KILCHLER, RICHARD

J. PACULIAN, LUISITO L. LOPEZ, ARTHUR MINTZ,

HOWARD SOBEN, DAVID ZISSER, Plaintiffs -

Appellants: Joseph R. Giannini, Law Office of Joseph

Giannini, Los Angeles, CA.

For WILLIAM H. REHNQUIST, JUAN R. TORRUELLA,

JOSEPH L. TAURO, JON O. NEWMAN, PETER C.

DORSEY, DOLORES K. SLOVITER, EDWARD N.

CAHN, J. HARVIE WILKINSON, III, W. EARL BRITT,

HENRY A. POLITZ, WILLIAM H. BARBOUR, JR.,

BOYCE F. MARTIN, JR., THOMAS A. WISEMAN, JR.,

RICHARD A. POSNER, MICHAEL M. MIHM, RICHARD

S. ARNOLD, DONALD E. O'BRIEN, PROCTOR HUG,

JR., LLOYD D. GEORGE, STEPHANIE K. SEYMOUR,

CLARRENCE A. BRIMMER, JOSEPH W. HATCHETT,

WM. TERRELL HODGES, HARRY T. EDWARDS, JOHN

GARRETT PENN, GLENN L. ARCHER, JR., GREGORY

W. CARMAN, Defendants - Appellees: Wilma Antoinette |

Lewis, U.S. Attorney, U.S. Attorney's Office, John Crawford |

Hoyle, Special Counsel, David William Ogden, Acting |

Assistant Attorney General, Peter Jeremy Smith, U.S. |

Department of Justice (DOJ), Washington, DC. ‘ |

JUDGES: |

BEFORE: Silberman, Henderson, and Tatel, Circuit Judges. |

~~ OPINION: |

JUDGMENT

This appeal was considered on the record from the United |

States District Court for the District of Columbia and on the |

briefs filed by the parties. The court has determined that the

issues presented occasion no need for an opinion. See Fed. R.

App. P. 36; D.C. Cir. Rule 36(b). It is

ORDERED and ADJUDGED that the district court's order

filed July 30, 1998, be affirmed. With respect to appellants'

challenges to the local rules in the California district courts,

the district court's order is affirmed substantially for the

seeerererereneremesamacmmasemmiiiiaiitiilaaiitiliiiiiiitliiiia

reasons stated therein. With respect to appellants’ challenges

to the local rules in the remaining states, appellants have not

met their burden of clearly alleging facts that would establish

standing to challenge those local rules. Appellants failed to

allege an actual injury with respect to these district courts’

rules. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-

61, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992).

The Cierk is directed to withhold issuance of the mandate

herein until seven days after disposition of any timely

petition for rehearing or petition for rehearing en banc. See

Fed. R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam

97cv01792.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA.

Monica M. McKenzie, et al.,

= V.

William H. Rehnquist, Hon., Chief Justice of the Judicial

Conference of the United States, et al.,

Filed 7/30/98

MEMORANDUM AND ORDER

Ten California attorneys bring this action against the

Judicial Conference of the United States, seeking, as they put

it, declarative relief holding that ‘local’ United States District

Court general admission rules that are adopted under 28

U.S.C.§ 2071, that deny reciprocal general admission to

sister-state attorneys are unlawful as they are not consistent

with the national rules and Acts of Congress. Compl. 4 |

(emphasis in original)

In other words, as the Court understands it, plaintiffs

object to the local rules of the various United States district

courts throughout the country that require membership in the

bar of the state wherein they sit as a condition to admission to

practice before them en a regular (as opposed to a pro hac

vice) basis (hereinafter the local rules). Plaintiffs maintain

[that] the challenged ‘sweetheart’ federal judicial favoritism

in access to the United States District Courts are an

anachronism antithetical to the federal court’s jurisdiction

and obligation. Compl.

The case is presently before the court on dispositive

cross— motions. The Court finds no material facts to be in

dispute. '

For complaint is drawn in nine counts, alleging, -

successivaly, that the offending local rules are in violation of:

(1) 28 U.S.C. §§ 331, 332, 2071; (2) 28 U.S.C. §§ 331,

332, 2072; (3) the First Amendment; (4) Title VII of the Civil

Rights Act of 1964 42 U.S.C. SS 2000¢e to 2000e—17; (5) the

Equal Protection clause; (6) the Fifth Amendment Due

Process Clause; (7) the Fifth Amendment Right to Property;

(8) the Right to Travel; and (9) the Full Faith and Credit

Clause. A ruling in their favor en any one count, according to

plaintiffs, would entitle them to the relief prayed.

Regardless of the merits of plaintiffs’ arguments,

plaintiffs have not adequately demonstrated that any one of

them has standing to challenge the local rules of any district

courts other than, possibly, those in California. Plaintiffs

have not alleged that any other federal court has denied any

plaintiff admission to its bar. Nevertheless, assuming that one

or more plaintiffs could show standing if leave to amend the

complaint were given, the Court will address the merits of

each count.’

II.

Counts I and II (Violation of 28 U.S.C. §§ 2071-2)

Counts I and II Allege violations of 28 U.S.C. §§

2071 and 2072, respectively. Section 2071 requires that local

federal court rules be consistent with Acts of Congress and

rules of practice and procedure prescribed (by the Supreme

Court) under section 2072.’ Pursuant to § 2072, local rules

‘shall not abridge, enlarge or modify any substantive right.’

Plaintiffs fail, however, to cite a single federal statute

or rule with which any challenged local district court rule is

inconsistent. Instead, plaintiffs claim that the local rules

violate the "spirit" of a federal rule of appellate procedure, a

federal statute, and an executive order.

First, plaintiffs contend that the local rules -are

inconsistent with Pad. R. App. p. 46(a), which provides that

an attorney who is a member of ‘the highest court of a state . .

-is eligible for admission to the bar’ of a court of appeals.’ As

is apparent on its face, however, Rule 46(a) clearly has no

application whatsoever to the district courts.

Similarly, plaintiffs claim that the local rules are

‘directly inconsistent’ with 5 U.S.C. § 500(b), which permits

an attorney in good standing in any state to practice before

any ‘federal administrative agency.” Once again, that statute

is clearly inapplicable to federal district courts.

Finally, plaintiffs ‘contend that the local rules violate

Executive Order 11478, which prohibits discrimination in

personnel actions ‘affecting employees or applicants for

employment . . . in the judicial branch.’ Obviously, attorneys

applying for admission to the bar of a federal district court

are not potential. ‘employees’ of the court and, therefore, are

not covered by Executive Order 11478.

Count III (First Amendment)

Count III alleges a violation of plaintiffs’ First

Amendment rights. Plaintiffs contend that ‘(t)he challenged

‘local’ federal rules ‘directly’ burden the (p)laintiffs(')

inextricably intertwined First Amendment right to speech,

association, and petition.’ See Reply Mem. in Supp. of Mot,

for Summ. J., at 18.

Plaintiffs then expend considerable effort arquing that

defendants do not have any "compelling interest’ that would

justify infringing their First Amendment rights, and that the

challenged local rules are overbroad. Without citation or

further explanation, plaintiffs simply observe that they are

‘attorneys with fundamental First Amendment rights,’ as

assuredly they are.

Courts have, of course, recognized a fundamental -

right of access to the courts, under due process, equal

protection, or First Amendment rationales. See Bieregu v.

Reno, 59 F.3d 1445, 1452—54 (3d Cir. 1995); Harrison v.

Springdale Water & Sewer Comm'n, 780 F.2d 1422, 1427

n.7 (8th Cir. 1986). But insofar as actually addressing the

court as an advocate is concerned, this right is limited to the

right to represent oneself pro se. There is no constitutional

right to represent others in court, and plaintiffs have cited no

case standing for the proposition that attorneys enjoy a First

Amendment right to practice law in any court of their

choosing without having first been admitted to practice there.

In short, plaintiffs have not identified any First

Amendment interest that is affected by the challenged rules.

Count IV (Title. VII)

Plaintiffs ingeniously submit that the local rules

violate Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e to 2000e-17. Title VII protects employees from

discriminatory employers. But the courts are not ‘employers’

of the members of their respective bars, and Title VII does

not extend to ‘discrimination’ based upon bar membership.

Title VII operates to outlaw only discrimination based upon

‘race, color, sex, or national origin, 42 U.S.C. § 2000e—2.

Discrimination on the basis of bar membership is, curiously,

not mentioned. Plaintiffs argue that the statute should not be

limited to those groups specifically enumerated; but should

be read in light of its greater purpose, which plaintiffs

describe as providing ‘a vessel in which the milk of

employment opportunity is one that all may use without

restriction.” See PIf.’ Reply Mem, in Supp. of Mot. for

Summ. J., at 22—23. Perhaps so, but not until Congress says

sO.

Count V (Equal Protection)

In Count V, plaintiffs contend that the challenged

rules violate their Fifth Amendment right to equal protection.

In support of an elaborate argument that the Court should

apply some ‘heightened level of scrutiny’ to the equal

protection analysis, plaintiffs rely upon decisions holding that

courts may not treat residents of-one state differently than

those of another.

For example, in Supreme Court of New Hampshire v.

Piper, 470 U.S. 274 (1985), the Supreme Court held that a

rule by a State Supreme Court that limited bar admission to

state residents violated the Privileges and Immunities Clause

of Art. IV, § 2. The Supreme Court rejected the notion that a

nonresident attorney (who had by the way, passed the New

Hampshire bar examination at 276) should be presumed. to

be less competent or less available than attorneys who

resided within the state. Piper, 470 U.S. at 285—86. And in

Frazier v. Heebe, 482 U.S.641 (1987), the Supreme Court

extended its reasoning in Piper to hold that a federal district

court in Louisiana could not require applicants to its bar to

live, Or maintain an office in Louisiana. In Frazier, the

plaintiff did ‘not challenge the requirement . . . that an

attorney must be a member In good standing of the Louisiana

Bar.’ 482 U.S. at 646 n.5.

Neither Piper nor Frazier is relevant to the present

case, because ‘the local rules do not treat lawyers of one state

differently than those of another.’ Giannini 711 F. Supp. at

1000. Under the local rules challenged here, all lawyers of all

States are presumably required to be members in good

standing of the bar of the state in which the federal district

court sits. In both Piper and Frazier, the plaintiffs were, in

fact, members of the relevant state’s bar and never questioned

the requirement that they be so.

Despite plaintiffs’ claim to be entitled to a heightened

scrutiny analysis of the issue, the ‘challenged rules do not

involve the impairment of a fundamental right because there is

no fundamental right to practice law. Further, lawyers are not

a suspect class. Therefore, a rational level of scrutiny is used’

in evaluating plaintiffs’ equal protection claim. See Giannini,

911. F.2d at 359. The justifications set forth by defendants in

support of the local rules ‘amply satisfy the requirement of a

rational basis for the classification.’ See Giannini, 911 F.2d at.

360.° Asa result, the challenged —_ do not violate plaintifs’

equal protection rights.

Count VI (Due Process)

Count VI contends that the local rules violate

plaintiffs’ Fifth Amendment right to due process. The Due

Process Clause affords protection only to ‘those property

interests which are created and defined by independent

sources, such as statutes, legal rules, or mutually explicit

understandings.’ See Maynard v. United States Dist. Ct. for

the Cent. Dist. of Cal., 701 F. Supp. 738, 743 (C.D. Cal.

1988) (citing Board of Regents v. Roth, 408 U.S..564, 569—

70 (1972)), aff'd, 915 P.2d 1581 (8th Cir.1990). Plaintiffs

cite no ‘rule, statute, or understanding that would support

their claim of denial of a property right to practice law in the

district court’. See also Matter of Roberts, 682 F.2d 105, 107

(3d Cir. 1982). Cf Leis v. Flynt, 439 U.S. 438, 443 (1979)

(“The Constitution does not require that because a lawyer has

been admitted to the bar of one state; he or she must be

allowed to practice in another").* Accordingly, Count VI

should be dismissed.

10a ©

Count VII (Privileges and Immunities Clause)

Entitled ‘Violation of Fifth Amendment Right to

Property,’ it is nevertheless unclear exactly what Count VII

alleges. In their papers, plaintiffs contend that "an attorney’s

‘privilege and immunity’ is constitutionally protected,’

Comply. 4 123, and that the challenged rules ‘abridge and

modify the plaintiffs’ property rights.” See Id. 4 125.

Plaintiffs seem to contend that the local rules violate either

the Takings Clause of the Fifth Amendment or the Privileges

and Immunities Clause of Article IV, 9 2. Neither claim has

merit.

As explained in the discussion of Count VI, supra,

Plaintiffs have no ‘property right’ to practice law in every

state and federal court they choose. Hence, the takings claim

is specious.

Article IV, § 2 of the Constitution provides that the

citizens of each State shall be entitled to all Privileges and

Immunities of Citizens in the several States.’ The Privileges

and Immunities Clause prevents ‘a State from discriminating

against citizens of other states in favor of its own." Hague v.

C1I.O., 307 U.S. 496 (1939) (emphasis supplied). The

Privileges and Immunities Clause is not a limitation on

powers of the federal government. Hawes v. Club Ecuestre El

Commandanite. Etc., 535 F.2d 140, 145 (1st Cir. .1976).

Plaintiffs cite several cases in which courts have

struck down attorney admission requirements under the

Privileges and Immunities Clause. See Piper, 470 U.S. 274.

However, in each of those cases, the courts were dealing with

state laws which discriminated against non—residents. Here,

there is no state action; federal courts’ local rules are matters

of federal law. See Snyder, 472 U.S. 634, 645 n.6 (1985).

Furthermore, the local rules at issue do not discriminate on

the basis or state citizenship or residency; all attorneys,

regardless of domicile, are required to be members of the bar

lla

of the state in which the federal court sits.

Count VIII (Right to Travel)

In Count VIII, plaintiffs contend that the local rules

violate their ‘right to travel.’ Rut here, as in Giannini, the

‘lack of disparate treatment of non-residents or.recent arrivals

eliminates the barrier to interstate travel.’ See Giannini, 911

F.2d at 360 n.7, 357 n.5. Admission to the federal district

courts is conditioned on one’s having passed (or been

excused from taking) the state bar examination, irrespective

of one’s residency. Plaintiffs’ argument has been specifically

rejected in several challenges to bar admission requirements.

See Hawkins v. Moss. 503 F.2d 1171, 1178 (4th Cir. 1974);

Galahad v. Weinshienk, 555 F. supp. 1201, 1208 (D. colo.

1983).

Count IX (Full Faith and Credit)

Plaintiffs contend that the local rules violate the Full.

Faith and Credit Clause. That provision provides that ‘Full

Faith and Credit shall be given in each State to the public

Acts, Records, and judicial Proceedings of every other State.’

U.S. Const. Art. IV, § 1. The claim lacks merit, since

plaintiffs do not cite any ‘act, record, or judicial proceeding’

or any state in which they are admitted that purports to entitle

them to practice law in any other state, or in any federal

court. See Giannini, 911 F.2d at 360.

For the foregoing reasons, it is, this 30" day of July,

1998,

ORDERED, that Plaintiffs’ motion for summary

judgment is denied; and it. is

FURTHER ORDERED, that Plaintiffs’ motion for

case priority (13) is denied as moot; and it is

12a

FURTHER ORDERED, that defendants’ motion to

dismiss the complaint (4) is granted, and this action is

dismissed with prejudice, and the Clerk is directed to enter

judgment for defendants and against plaintiffs, with costs.

Thomas Penfield Jackson

U.S. District Judge

FOOTNOTES

' Although not a plaintiff himself, plaintiffs’ counsel

is Joseph R. Giannini, Esq., of Los Angeles, California. Eight

years ago, Mr. Giannini unsuccessfully litigated a nearly

identical case pro se in California. See Giannini v. Real, 711

F. Supp. 992 (C.D. Cal. 1989), aff'd, 911 F.2d 354 (9th cir

1990). Mr. Giannini is a California resident who passed the

New Jersey and Pennsylvania bar examinations. After failing

the California.bar twice, Giannini challenged the California

federal district courts’ local admission rules, which require

membership in the State Bar of California to practice before

them. See Giannini, 911 F.2d at 356. Mr. Giannini is not a

member of the bar of this U.S. district court, and professes to

be unable to retain the services of attorney who is. The Court

will therefore, sup sponte, admit him pro hac vice for

purposes of the instant motions.

? In Giannini, 911 F.2d 354, supra, n.1, the Ninth circuit

considered and rejected the arguments underlying five of the

nine counts plaintiffs allege here. Mr. Giannini urges the

court to disregard the Ninth Circuit’s decision, which he

regards as a ‘deliberate federal coverup . . . qualitatively

identical to the Tailhook incident, where Naval Admirals

chose to ignore unlawful conduct visited upon female

Officers, so as to not publicly impugn the integrity of their

sons and the Navy.’ See Pls. Reply Mem, in Supp. of Mot.

for Summ. J., at 37-38.

13a

* Defendants offer the following rational bases accepted by

the Ninth Circuit in Giannini -- for the challenged rules: (1)

district courts, having no relevant procedures of their own,

rely on the state bar examination for determination of fitness

to practice law; (2) questions of state substantive law

permeate the range of cases over which the district courts

have subject matter jurisdiction; (3) membership in the state

bar provides the district courts assurance that the character,

moral integrity and fitness of prospective adaittees have been

approved after investigations; (4) allegations of professional

misconduct can be brought to the attention of the State bar;

(5) such membership helps screen applicants who are guilty

of ethical misconduct in any other jurisdiction; and (6)

attorneys who are members of the state and district court bars

will not choose the forum for litigation on the basis of their

membership in the federal bar rather than the clients’

interests. See Giannini, 911 F.2d at 360.

* Plaintiffs claim that their right to practice law is a ‘property’

right. Citing Supreme Court of New Hampshire v. Piper, 470

U.S. 274 (1985), plaintiffs argue that the opportunity to

practice law is constitutionally protected. But, as noted

above, Piper is completely inapposite to the present case. The

Piper Court, relying on the Privileges and Immunities Clause

(which is inapplicable to actions by the federal government),

held that in admitting attorneys to its bar, a State may not

discriminate against non-residents. The Court expressly

stated that it did not purport to overrule Leis. See Piper, 439

US. at ' 283 n.16.

l4a

97cv01792.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA.

~ Monica M. McKenzie, et al.,

Vv.

William H. Rehnquist, Hon., Chief Justice of the Judicial

Conference of the United States, et al.,

Filed 7/30/98

This cause having been considered by the Court on

cross dispositive motions, before the Honorable Thomas

Penfield Jackson, Judge presiding, and the issues having been

duly briefed by all parties and the court having rendered its

decision granting defendants motion to dismiss, now

therefore, pursuant to the decision of the Court,

IT IS ORDERED, ADJUDGED AND DECREED that the

plaintiffs MONICAM.MCKENZIE,JEFFREYL.RUSELL,RO

GER LOWENSTEIN.BENITA KILCHLER, RICHARD

J.PACULIAN, LUISITO L.LOPEZ, ARTHUR MINTZ,

HOWARD SOBEN, JANE DOE, DAVID ZISSER take

nothing on the complaint against the defendants

HON.WIWAM H. REHNQUIST, HON.JLJAN R.

TORRUELLA, HON.JOSEPH L. TAURO, HON. JON

O.NEWMAN, HON.PETERC.DORSEY, HON

DOLORSEK.SLOVITER HON. EDWARD N. CAHN,

HON.J.HARVIE WILKINSON, HON.W.EARL BRITT,

HON.HENRY A. POLITZ, HON.WILLIAM H. BARBOUR .

JR., HON.BOYCE F. MARTIN JR.. HON. THOMAS A.

WISEMANIR., HON. RICHARD A. POSNER, HON.

MICHAEL M. MIHM, HON.RiCHARD S. ARNOLD,

15a -

HON.I, DONALD E. O’BRIEN, HON PROCTOR HUG JR.,

HON.LLOYD D.GEORGE, HON.STEPHANIE _ K.

SEYMOUR, HON.CLARRENCE A. BRIMMER, HON

JOSEPH W. HATCHEIT, HON WM.TERRELL HODGES,

HON HARRY T. EDWARDS, HON.JOHN GARRETT

PENN, HON.GLENN L. ARCHER JR., HON. GREGORY

W. CARMAN and that the said defendants have and recover

costs from the said plaintiff.

NANCY MAYER-WHITTINGTON. Clerk

l6a

97cv01792.

DISTRICT OF COLUMBIA.

Monica M. McKenzie, et al.,

William H. Rehnquist, Hon., Chief Justice of the Judicial

Conference of the United States, et al.,

Filed 12/8/98

Upon consideration of the motion of plaintiffs to

vacate, alter, amend, and for a new trial, the opposition of

defendants thereto, and the entire record herein, it appearing to

the court that plaintiffs have not presented arguments that

support alteration or amendment of the court's July 30, 1998

order, or other similar relief, it is, this day of December, 1998,

ORDERED, that motion of plaintiffs to vacate, alter,

amend and for a new trial is denied; and it is

FURTHER ORDERED, that the ex parte application

of plaintiffs for oral argument on their motion to vacate is

denied as moot.

Thomas Penfield Jackson

U.S. District Judge

17a

No. 99-5005

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Monica M. McKenzie, et al.,

Appellants

William H. Rehnquist, Hon., Chief Justice of the Judicial

Conference of the United States, et al.,

Appellees

Febrary 29, 2000 Filed

ORDER

Upon consideration of appellants’ petition for rehearing en

banc, and the absence of a request by any member of the

court for a vote, it is

ORDERED that the petition be denied.

18a

RELEVANT STATUTORY AND CONSTITUTIONAL

PROVISIONS

5 U.S.C. § 500(b) provides,

“An individual who is a member in good standing of the

highest court of any State may represent a person before an

agency on filing with the agency a Declaration that he is

currently qualified as provided by this subsection and is

authorized to represent the particular person on whose behalf

he acts.” The only exception concerns patent attorneys.

28 U.S.C. § 1654

In all courts of the United States the parties may plead and

conduct their own cases personally or by counsel as, by the

rules of such courts, respectively, are permitted to manage

and conduct causes therein.

28 U.S.C. § 2071(a) provides,

The Supreme Court and all courts established by Act of

Congress may from time to time prescribe rules for the

conduct of their business. Such [local] rules shall be

consistent with Acts of Congress and rules of practice and

procedure under Section 2072 of this title. (Emphasis added)

28 U.S.C. § 2072 (b) in pertinent part provides,

Such [local] rules shall not abridge, enlarge or modify

any substantive right. (Emphasis added)

FRAP 46(a)provides,

“An attorney who has been admitted to practice before the

Supreme Court of the United States, or the highest court of a

state, or another United States court of appeals, or a United

States district court (including the district courts for the Canal

19a

Zone, Guam and the Virgin Islands), and who is of good

moral and professional character, is eligible for admission to

the bar of a court of appeals.” i

Constitutional Provisions

Article IV Section 1. [Full Faith and Credit]

Full Faith and Credit shall be given in each State to the

public Acts, Records, and judicial Proceedings of every other

State. And the Congress may by general Laws prescribe the

Manner in which such Acts, Records and Proceedings shall

be proved, and the Effect thereof.

Article IV Section 2. [Privileges and Immunities]

The Citizens of each State shall be entitled to all

Privileges and Immunities of Citizens in the several States.

First Amendment.

Congress shall make no law .. . abridging the freedom of

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

assemble, and petition the Government for a redress of

grievances.

14th Amendment, Section |

All persons born or naturalized in the United States and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall

20a

make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any

State deprive-any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

APPENDIX

TABLE |

DISTRICT LOCAL RULES THAT PROVIDE GENERAL

ADMISSION RECIPROCITY

E.D. Arkansas LRB-1; W.D. Arkansas LRB-1; D. Conn.

LR2; D. Hawaii LR110-1; C.D. Ill. LR83.5; N.D. Ill. LR3;

S.D. Ill. LR1; N.D. Ind. LR83.5; S.D. Ind. LR83.5; E.D.

Mich. LR110.1; W.D. Mich. LR16; E.D. MO. LR12.01; D.

Neb. LR10-1; N.D.N.Y LR 83.1; D. N.Dak. LR79.1; N.D.

Ohio LR1:5.1>E.D. Ok. LR83.3; N.D. Ok. LR83.2; W.D.

Ok. LR83.3; W.D. Pa. LR83.5; D. Puerto Rico LR201; D.

R.I. LR4; E.D. Tn. LR83.5; E.D. Tx. LR2; N.D. Tx. LR13.1;

S.D. Tx. LR1; W.D. Tx. LRAT-1; E.D. Wisc. LR2.02; W.D.

Wisc. LR1.

TABLE 2

DISTRICT LOCAL RULES THAT PROVIDE SOME

FORM OF QUID PRO QUO GENERAL ADMISSION

RECIPROCITY

D. Az. LR1.5S(all attorneys eligible except attorneys residing

in Az. or whose principal office or practice is in Az.) D.

Columbia LR701(active members in good standing of the Bar

of the District of Columbia, or active members in good

standing of the highest court of any state in which the

attorney maintains his/her principal law office and is a

2la

member in good standing of a United States District Court

that provides for reciprocal admission to members of the bar

of this court; D. Maryland LR701(allows anyone to be

admitted, but “no attorney . . .may be a member if the District

Court for which the attorney maintain his principal law office

has a local rule that denies membership. . .to a Maryland

member with offices in Maryland”); E.D. and S.D. New York

LR2(“A member of the bar of the State of New York, or a

member of the bar of the United States District Court in New

Jersey, Connecticut or Vermont” which allows members of

these two districts to practice there); W.D. N.Y.

LR83.1(admits anyone who is a member of any district court

which does not exclude its members); D. Vermont R1 (admits

Vermont members “or any attorney of the Bar of any District

Court within-the First and Second Circuits. . .”’)

TABLE 3

DISTRICT COURT LOCAL RULES- RESTRICT

GENERAL BAR ADMISSION TO ATTORNEYS FROM

THE FORUM STATE

M.D. Ala. LR1; N.D. Ala. LR83.1; S.D. Ala. LR1; D. Alaska

LR83.1; C.D. Ca. LR2.2; E.D. Ca. LR180; N.D. Ca. LR1I1;

S.D. Ca. LR83.5; D. Col. LR83.5; D. De. LR83.5; M.D. FI.

LR2.01-.02; N.D. Fl. LR11.1; S.D. Fl. LR11.1; M.D. Ga.

LR2; N.D. Ga. LR110; S.D. Ga. LR502/504; D. Guam

LR110; D. Idaho. LR83.5; N.D. Iowa LR5; S.D. Iowa LRS;

D. Kan. LR83.5; E.D. Ky. LR3; W.D. Ky. LR3; E.D. La.

LR20; M.D. La. LR20; W.D. La. LR20; D. Maine LR83.1;

D. Mass. 83.5; D. Mn. 83.5; N.D. Mis. LR1; S.D. Mis. LR1;

W.D. Mo. LRI; D. Montana LRI10; D. Nev. LRIO-1;

D.N.H. LR 83.1; D. N.J. LR4; D. New. Mex. LR83.2; E.D.

N.C. LR2.00; M.D. N.C. LR103; W.D. N.C. LR1; D. N.

Marina Islands LR83.5; S.D. Oh. LR83.4; D. Or. LR110;

E.D. Pa. LR83.5; M.D. Pa. LR204; D. S.C. LR2.00; D. S.D.

22a

LR83.2; M.D. Tn. LR1(b); W.D. Tn. LR1; D. Utah LR103-1;

D. Vir. Islands LR 83.1.(1); E.D. Va. LR 83.1.(A); W.D. Va.

LR 2(1); E.D. Wa. LR 2; W.D. Wa. LR83.2; N.D. W. Va. LR

2.01.; S.D. W. Va. LR 2.01-.02; D. Wy. LR 201(a);

TABLE 4

DISTRICT COURT LOCAL RULES THAT NOT ONLY

RESTRICT GENERAL BAR ADMISSION TO

ATTORNEYS FROM THE FORUM STATE, BUT GO

FURTHER AND CATEGORICALLY RESTRICT PRO

HAC VICE ADMISSION

M.D. Ala. LR1; N.D. Ala. LR83.1; $.D. Ala. LR1; D. Alaska

LR83.1; C.D. Ca. LR2.2; E.D. Ca. LR180; S.D. Ca. LR83.5;

D. Col. LR83.5; D. De. LR83.5; M.D. Fl. LR2.01-.02; N.D.

Fl. LR11.1; S.D. Fl. LR11.1; M.D. Ga. LR2.00; N.D.

Ga.LR110; S.D. Ga. LRS5S04; D. Guam LR110; D. Mn. 83.5;

N.D. Mis. LR1; S.D. Mis. LR1; D. Montana LR110; D. Nev.

LR10-2; D. New. Mex. LR83.3; E.D. N.C. LR2.05; D. N.

Marina Islands LR83.5; M.D. Tn. LR1(d); E.D. Va. LR

83.1.(A); W.D. Va. LR 2(1); E.D. Wa. LR 2; W.D. Wa.

LR83.2;

TABLE 5

Title VII REGULATIONS

See 29 CRF § 1607-UNIFORM GUIDELINES ON

EMPLOYEE SELECTION

PROCEDURES (1978)

29 CRF § 1607.1 Statement of purpose. A. Need for

uniformity—Issuing agencies. The Federal government’s

23a

need for a uniform set of principles on the question of the use

of tests and other selection procedures has long been

recognized. The Equal Employment Opportunity

Commission, the Civil Service Commission, the Department

of Labor, and the Department of Justice jointly have adopted

these uniform guidelines to meet that need, and to apply the

same principles to the Federal Government as are applied to

other employers.

29 CRF § 1607.1 B -- Purpose of guidelines. These

guidelines incorporate a single set of principles which are

designed to assist employers, labor organizations,

employment agencies, and licensing and certification boards

to comply with requirements of Federal law prohibiting

employment practices which discriminate on grounds of race,

color, religion, sex, and national origin. They are designed to

provide a framework for determining the proper use of tests

and other selection procedures. . .

29 CRF § 1607.2 B -- Employment decisions. These

guidelines apply to tests and other selection procedures which

are used as a basis for any employment decision.

Employment decisions include but are not limited to hiring,

promotion, demotion, membership (for example, in a labor

organization), referral, retention, and licensing and

certification. . .

29 CRF § 1607-11 Disparate treatment,

.. .A selection procedure. . . . cannot be imposed upon

members of a race, sex, or ethnic group where other

employees, applicants, or members have not been subjected

to that standard. Disparate treatment occurs where

members of a race, sex, or ethnic group have been denied the

same employment, promotion, membership, or other

24a

employment opportunities a§ have been available to other

employees or applicants.

29 CRF § 1607.3 Discrimination defined.- Relationship

bety een use of selection procedures and discrimination.

B. Consideration of suitable alternative selection

procedures. Where two or more selection procedures are

available which serve the user's legitimate interest in efficient

and trustworthy workmanship, and which are substantially

equally valid for a given purpose, the user should use the

procedure which has been demonstrated to have the lesser

adverse impact.

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