Paciulan v. George

• Decision Date: 03 March 1999
• Docket Number: No. C 98-1201 SI.,C 98-1201 SI.
• Citation: 38 F.Supp.2d 1128
• Parties: Richard J. PACIULAN, William A. Kruse, Plaintiffs, v. Ronald M. GEORGE, et al., Defendants.
• Court: U.S. District Court — Northern District of California

38 F.Supp.2d 1128

Richard J. PACIULAN, William A. Kruse, Plaintiffs, v. Ronald M. GEORGE, et al., Defendants.

No. C 98-1201 SI.

United States District Court, N.D. California.

March 3, 1999.

COPYRIGHT MATERIAL OMITTED

Joseph R. Giannini, Los Angeles, CA, for Plaintiffs.

Peter K. Southworth, Eileen Gray, Bill Lockyer, Cal. Attorney General, Cal. State Attorney General's Office, Sacramento, CA, for Defendants.

ORDER:

ILLSTON, District Judge.

(1) GRANTING DEFENDANTS' MOTIONS TO DISMISS WITHOUT LEAVE TO AMEND;

(2) DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT;

AND

(3) GRANTING DEFENDANTS' MOTIONS FOR SANCTIONS BY IMPOSING A PREFILING REQUIREMENT

On July 24 and September 4, 1998, the Court heard argument on defendants' motions to dismiss and for sanctions, and plaintiffs' counter motion for summary judgment.¹ Having carefully considered the arguments of counsel and the submitted papers, the Court hereby GRANTS defendants' motions to dismiss plaintiffs' complaint without leave to amend; DENIES plaintiffs' motion for summary judgment; and GRANTS defendants' motions for sanctions. A final and appealable judgment on this order will be filed separately by the Court.

BACKGROUND

The instant action is the third in a recent series of cases filed by attorney Joseph Giannini challenging the validity of the requirements for admission to practice law in California. This case presents a facial challenge to the constitutionality of California Rule of Court 983.² Plaintiffs are California residents who allege that they are licensed to practice law in states other than California but are not licensed to practice law in California. Plaintiffs wish to be admitted pro hac vice under Rule 983, but are precluded from doing so because they are California residents. Defendants are the Justices of the California Supreme Court ("Supreme Court defendants"), whom plaintiffs contend are charged with promulgating Rule 983, and individuals from the State Bar of California ("State Bar defendants"). Plaintiffs challenge the constitutionality of the language in Rule 983 prohibiting California residents from appearing pro hac vice³ in California state courts under the Privileges and Immunities Clause, the Commerce Clause, the First Amendment of the United States Constitution, and the Due Process and Equal Protection guarantees of the United States and California Constitutions.

1. Related Litigation

Plaintiffs are represented by Joseph Giannini ("Giannini"), an attorney⁴ who has filed a number of federal actions challenging the validity of the requirements for admission to practice law in federal and California state courts. In 1987, after failing the July 1986 and February 1987 California Bar Examinations, Giannini filed suit in federal district court in the Central District of California in his own name against the State Bar of California's Committee of Bar Examiners. See Giannini v. Committee of Bar Examiners, 847 F.2d 1434 (9th Cir.1988). In that suit, Giannini alleged that the California Bar Examination unconstitutionally discriminated against out-of-state attorneys and violated the Privileges and Immunities Clause of Article IV, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and the Commerce Clause. The district court dismissed Giannini's complaint on the ground that it lacked subject matter jurisdiction to review the action of the Committee of Bar Examiners. The Ninth Circuit, in a per curiam opinion, affirmed the district court's dismissal, holding that the Committee's decision was reviewable by the California Supreme Court and that until such review was completed, Giannini had no basis for any claim of deprivation under federal law. Id. at 1435.

In 1988, Giannini filed suit in the Central District of California on his own behalf against the California Supreme Court and the named Justices of that Court, the Committee of Bar Examiners and the Committee's individual members, and the federal district courts for the Central, Southern, and Eastern Districts of California and the individual judges of those Courts. See Giannini v. Real, 911 F.2d 354 (9th Cir.1990), cert. denied, 498 U.S. 1012, 111 S.Ct. 580, 112 L.Ed.2d 585 (1990). Giannini challenged the constitutionality of the California Bar Examination and the local rules of the United States District Courts for the Central. Southern, and Eastern Districts of California, which required attorneys seeking admission to those courts to be members in good standing of the California State Bar. The district court denied Giannini's motions for (1) summary judgment, (2) a preliminary injunction ordering his admission to the California bar, (3) default judgment against named members of the Committee of Bar Examiners, and (4) criminal sanctions against the Committee's attorneys. The district court dismissed Giannini's claims against the state defendants on the ground of res judicata. On appeal, the Ninth Circuit affirmed the district court's order of dismissal, holding that Giannini had failed to state a claim against the state defendants under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Privileges and Immunities Clause, and the Commerce Clause. Id. at 357-59. In addition, the Ninth Circuit upheld the district court's dismissal of Giannini's claims against the federal defendants. Id. at 359-61.

In 1992, Giannini filed suit in the Central District of California on behalf of himself and two other named plaintiffs, Mimi Morissette and Patricia Miller Rosenthal, against the State Bar of California's Committee of Bar Examiners, numerous State Bar officials, the California Supreme Court, and the named Justices of that Court. See Morissette v. Yu, No. 92-03252 (C.D.Cal.1992). Plaintiffs alleged that California Rule of Court 983, which is the same rule challenged in the instant suit, violated Giannini's right to practice law under the Privileges and Immunities Clause and violated Morissette's and Rosenthal's First and Fourteenth Amendment rights. In addition, plaintiffs alleged that the Central District was required to admit Giannini to practice before it, and that the Committee of Bar Examiner's failure to certify Giannini for admission to the California bar after the July 1991 Bar Examination was arbitrary, capricious, and vindictive.

This complaint was dismissed on November 16, 1992. See Morissette v. Yu, No. 92-03253 (C.D.Cal. Nov. 16, 1992) (Order Granting Defendants' Motions to Dismiss, Denying Plaintiffs' Motion for an Order Admitting Joseph R. Giannini, Esq., to the California State and Central District Bars, and Ordering Joseph R. Giannini, Esq., to Show Cause Re: Rule 11 Sanctions). Plaintiffs subsequently requested and were granted leave to file an amended complaint. The amended complaint incorporated the allegations of the original complaint and further alleged (1) that defendants retaliated against Giannini for exercising his First Amendment right of criticism, (2) that Rule 983 violated Morissette's and Rosenthal's First Amendment right to associate with Giannini and Sixth Amendment right to counsel, and (3) that Rule 983 violated the Commerce Clause. The district court subsequently dismissed plaintiffs' amended complaint without leave to amend and ordered Giannini to pay monetary sanctions for signing a frivolous complaint, having an improper purpose, and making scandalous allegations against various judges and defendants. See Morissette v. Yu, No. 92-03253 (C.D.Cal. May 26, 1993) (Order Granting Defendants' Motions to Dismiss, Denying Plaintiffs' Motions for Partial Summary Judgment and for an Order Admitting Joseph R. Giannini, Esq., to the California State and Central District Bars, and Ordering Joseph R. Giannini, Esq., and Gerard A. Fierro, Esq., to Show Cause Re Sanctions). In Morissette, Mr. Giannini also moved to disqualify the assigned judge, John G. Davies. Judge Davies declined to recuse himself, and Judge Ideman denied the motion.

On appeal, the Ninth Circuit affirmed the district court's dismissal of the first amended complaint, affirmed the district court's award of sanctions, and awarded additional sanctions against Giannini for filing a frivolous appeal, in an amount equal to double the costs of appeal. See Morissette v. Yu, No. 93-56288 (9th Cir. Mar. 8, 1994). In particular, the Ninth Circuit held that plaintiffs' constitutional challenges to Rule 983 and the California Bar Examination were barred by principles of res judicata. See id., slip op. at 5-6 ("If his challenge to Rule 983 was not included in [his] general challenge [to the constitutionality of the form and content of the California Bar Examination], it could have been, so it is barred by the judgment in that case.") (citing Clark v. Bear Stearns & Co., Inc., 966 F.2d 1318, 1320 (9th Cir.1992)). The Ninth Circuit also affirmed the denial of Mr. Giannini's motion to recuse Judge Davies.

On July 7, 1997, Giannini filed an action entitled McKenzie v. Rehnquist in federal district court in Washington, D.C., against the United States Judicial Conference and its individual judge members, alleging that the local rules governing attorney admission in many federal district courts violate federal law, including Title VII, as well as the First Amendment, the Fourteenth Amendment Equal Protection Clause, the Fifth Amendment Due Process Clause, the Fifth Amendment right to property, the right to travel, and the Full Faith and Credit Clause of Art. IV, § 1 of the United States Constitution. The Court is unaware of the disposition of this litigation.

2. Litigation Before This Court

A. McKenzie et al. v. George, et al. C 97-0403 SI

On February 4, 1997, Giannini filed McKenzie et al., v. George, et al. C 97-0403 SI on behalf of a number of individuals against the individual Justices of the California Supreme Court. Jerome Braun and Judy Johnson of the State Bar intervened. In McKenzie v. George, C 97-0403 SI, the plaintiffs advanced the same challenges...