Reply Brief — McKenzie v. Rehnquist

’ 2 eo ry

Supreme Court, U.S.

- FILED |

(3) Au. 29 SANA

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Supreme Court of the United States

MONICA M. McKENZIE, JEFFREY L. RUSSELL, ROGER

LOWENSTEIN, BENITA KICHLER, RICHARD J. PACIULAN, 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

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REPLY BRIEF

Joseph R. Giannini

Counsel of Record

2950 Bentley Ave. #2

Los Angeles, CA 90064

(310) 914-8493

cary x Taylor (202) Sood 14 1 uesupremecouriepnomnell com ;

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

CASES

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FRAZIER V. HEEBE, 482 U.S. 641, 647 N. 7 (1987)...........c0000 3

~ FTC v. SUPERIOR COURT TRIAL LAWYERS ASSN. 493 U.S.

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IN RE LOCKWOOD, 154 U.S. 116 (1894) ......ccccccccsecscsssssessessees 5

STATUTES

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REPLY ARGUMENT

The Court Should 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 Imminent Further

Litigation And Dishonorable Confrontation

With The Federal Judiciary

Since antiquity it has been universally accepted that

“no just judge will pronounce one sort of judgment in his

own case and a different one in the case of others.” Seneca,

Moral Essays (Loeb Classical Library 1994) Book I p. 143.

This Honorable Court, in its own rules, has declared that

general admission to its bar is open to qualified lawyers from

every State. If this Honorable Court does not in its own rules

discriminate favoring one State’s attorneys over another's,

then neither should Federal District Courts. This Honorable

Court should not publicly pronounce one standard in its own

rules, and by failure to act allow a different standard in

Federal District Courts.

It is simply absurd to require United States District

Judges to the swear to the same oath of office to uphold the

same Constitution, to receive the same nationwide salary and

uniform benefits, and to permit them to adopt home-town

protectionist balkanized local rules, that spring directly from

and abort the First Amendment guaranteed freedoms. This

Court has recognized that competition in the long run

increases the quality of advocacy. FTC v. Superior Court

Trial Lawyers Assn. 493 U.S. 411, 423-24 (1989)

Competition enhances performance and the presentation of

new ideas. Monopolies produce inefficiency. If in the N.F.L.,

the New York Giants are not restricted to playing the New

York Jets every week, why should federal practice lawyers in

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United States District Courts be treated differently? Is

competition between professional football players and

interstate commerce to be judged by one standard, and

competition in United States District Courts between

professional members of the bar (who have a constitutional

duty and obligation to vindicate federal rights) by another?

Thus, this Court should grant certiorari and

pronounce judgment as to whether “local” rules that

automatically grant general admission to inexperienced

forum State attorneys, and automatically deny general

admission to experienced federal practice attomneys from

outside the forum State are lawful. These challenged rules are

based on a blind and unthinking puffed up selfish devotion to

the local bar’s monopoly. If justice is a good, the reduction of

access to the fountains of justice, cannot be a good. It is an

evil. It is dishonorable. This Honorable Court can have no

part in what is not honorable. This Honorable Court has a

legal and moral duty to curb this pernicious vice.

The petitioners’ have argued the challenged “local”

Federal District Court rules are conspicuously outmoded and

unlawful, and that their legal arguments are unanswerable. In

these circumstances, joined with the specter of impropriety

flowing from an appellate judgment filed without an opinion

and without oral argument, the government’s failure to file an

Opposition Brief to this Court’s granting of certiorari, is an

admission by silence that certiorari should be granted. It is a

maxim of law that secrecy is not congenial to truth. This

Honorable Court can rest assured that if any legitimate basis

existed to support the challenged discriminatory rules in a

federal public forum, raised in this petition wherein CHIEF

JUSTICE REHNQUIST and the United States Judicial

Conference are respondents, that the Solicitor General would

have offered it gladly. The Honorable Solicitor General did

not attempt to defend the challenged rules because they are

not defensible. This Court has already explicitly recognized

that “local” rules, such as challenged here, are “difficult to

justify.” Frazier v. Heebe, 482 U.S. 641, 647 n-7 (1987)

3

It cannot be denied that the challenged “local” rules

defile the First Amendment. England’s King George III

forbid our American forefathers to speak out against his

demand for taxation (without representation), and to join

together and associate with other colonists, and he refused to

entértain their petitions for redress of grievances. This

tyranny produced the American Revolution. American

citizens have formed a constitutionally based Government

that has guaranteed their sacred First Amendment rights.

These rights have become a monument to liberty and an

exalted example for the entire world.

The First Amendment’s guarantee is that American

citizens have a constitutionally protected right to speak

(advocate) as they think, associate with whom they choose,

and “to petition the Government for redress of grievances.”

(emphasis added) These sovereign First Amendment rights

belong to the people. These rights are at the apex of our

constitutional hierarchy. They apply to ideas and people that

we hate. That these challenged local Federal District Court

rules either handicap or entirely ban the petitioners’ exercise

of their sacred First Amendment rights is incontrovertible.

The petitioners’ first and third- party standing to challenge

the subject “local” Federal District Court rules is obvious as a

neon sign on the courthouse roof saying “Negroes Not

Wanted.” That the petitioners, and other Americans similarly

situated, do not present a “clear and present danger” that

would justify this prior restraint-in a federal public forum is

indisputable. The Solicitor General has not denied that the

challenged rules trample the textually enumerated sacred

First Amendment rights, because like footprints in knee-deep

snow, it is plainly obvious that they do.

This Honorable Court should not turn a blind-eye to

the application of the First Amendment sstrict-scrutiny

standard of review for regulations affecting nude-dancers

wearing pasties, hate crimes such as people burning nazi

crosses on other’s lawns, flag-burners, abortion protestors,

and cable networks peddling smut: And then permit a secret

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rational basis standard for members of the bar who also have

First Amendment rights. Petitioners, as mobile federal

practice attorneys have a constitutional duty to vindicate

federal rights and champion locally unpopular claims. They

should not be compelled to secretly forfeit their First

Amendment rights on crossing a State line.

Justice Brandeis, in recognizing that the law needed

to be fit for its purpose, quoted a poem by James Russell

Lowell,’ that succinctly summarizes the herein challenged

“feudal” rules and antiquated judicially sanctioned “feather-

bedding,” ;

“New times, demand new issues and new men,

The world advances, and in time outgrows the laws

That in our father’s time were best;

And, doubtless, after us some purer scheme

Will be shaped out by wiser men than we, --

Made wiser by the steady growth of truth

Likewise, it cannot be denied that that the challenged

“local” Federal District Court rules disobey the command of

Congress declared in Title IV of the 1988 Judicial

Improvements and Access to Justice Act (Pub.L. 100-702).

The Solicitor General has tacitly admitted that the challenged

balkanized “local” rules prostrate the expressed intent of

Congress that “local” rules shall be uniform; and that local

rules shall not abridge, modify, or enlarge any substantive

rights. See 28 U.S.C. §§ 2071-72, 331-32. The Solicitor

General has not denied that the challenged balkanized rules

disobey the commands of Congress because it is obvious that

they do.

The respondents further have not (and cannot) deny

that the challenged “local” rules are descended from the most

despised decisions in the history of this Honorable United

States Supreme Court. See Dred Scott v. Sandford 60 U.S.

' Phillipa Strum, Louis D. Brandeis: Justice For The People, (1984

Random House) p. 127 (citing Lowell’s “A Glance Behind The Curtain’)

5

(19 Howard) 393 (1856); Jn re Lockwood, 154 U.S. 116

(1894)

Likewise, it cannot be denied that the challenged

“local” Federal District Court rules stain the integrity of the

federal bench according to the American Bar Association, the

Reporter for the American Law Institute, the National

Bankruptcy Review Corlfktission, and multiple other

commentators and respected arms of the bar. The Solicitor

General has not denied these public denunciations because

they cannot be denied.

One Washington D.C. newspaper reporter,

commenting on the legal issues raised in this petition

exclaimed that we have “tweaked” the Court. Not so. (At

least not purposely or maliciously.) Truth is ithe summit of

being; justice is the application of it to affairs.” Men of honor

like to hear oftheir faults, so that they can correct them. The

truth will set us free. Liberty and freedom is man’s

inalienable right. This country was born in protest. Protest is

as American as the Stars and Stripes. It is enshringd in the

right to advocate, associate, and “to petition the Government

for redress of grievances.” The petitioners here have been

created equal, and they should have equal First Amendment

liberties.

When the First Amendment was being ratified, and

former Chief Justice Roger Brooke Taney was going to

college, he walked the eighty-mile distance. It took him two

weeks. In this new millennium and internet-era, the

Honorable Justices serving on this consecrated Court, who

serve as a the foremost example to our entire nation, cannot

expect American citizens and members of the bar, to continue

being treated like Dred Scott by antiquated local rules that

plunder their First Amendment rights. Here, U.S. District

Judges are not wearing clothes, and it is folly to suggest

2 Ralph Waldo Emerson, The Selected Writings of Ralph Waldo

Emerson, p. 332 (1992 Modern Library Edition)(Essay on Character)

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petitioners or anyone else can go on pretending these jurists

are clothed. :

For all of the foregoing reasons, the petitioners

request this Honorable Court to grant certiorari review.

Dated: August 24, 2000

Respectfully submitted,

Joseph R. Giannini

_ JOSEPH GIANNINI,

Attorney for Petitioners

McKENZIE et.al.

2950 Bentley Ave. #2

Los Angeles, CA 90064

Phone 310 914 8493

Fax 310 473 5468