Grundstein v. Vermont Board of Bar Examiners

MOTION for Temporary Restraining Order, MOTION for Preliminary Injunction, MOTION for Permanent Injunction

D. Vt.May 1, 2017

US O~~~r'""!f"'(" •"'OURT .. ~~ l\lv "' OiSTRICi OF VEHHONT FILED 1 United States District Court 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Robert Grundstein Esq. Vs. Vermont Board ofBar Examiners c/o Benjamin Battles Esq. Solicitor General Vermont Attorney General's Office 802.828.5944 benjamin.battles@vermont.gov Vermont Case No. 2011 MAY -l AKII: 23 CLERK sv ..... (fbN O£PUTY CLERK 18 Verified Complaint and Request for 19 TRO, Temporary Injunction, Permanent Injunction and Declaratory Relief 20 Under Civ. Rule 65 21 Request for Hearing 22 23 24 25 26 27 28 29 Plaintiff 30 31 Robert Grundstein Esq. 32 18 Griggs Road 33 Morrisville VT 05661 34 802-888-3334/rgrunds@pshift.com 35 36 37 38 39 40 41 42 Robert Grundstein Esq. Parties to This Action 1 Defendant Vermont Board ofBar Examiners Character and Fitness Committee c/o Benjamin Battles Esq./Solicitor General 109 State Street Montpelier, VT 05602 benjamin. battles@vermont.gov 802.828.5944 Complaint for TRO/Injunction/Declaratory Relief Case 5:17-cv-00075-gwc Document 11 Filed 05/01/17 Page 1 of 19 1 Table of Contents 2 Page 3 1. Statement of Jurisdiction 3 4 2. Statement ofthe Claim 3 5 3. Facts 4 6 4. Standards to Apply Requested Injunctive Relief 8 7 5. Brief in Support of Relief 9 8 a. State Law Arguments I-IV 8-11 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Grundstein Has Completed All the "Experience" Preconditions for Bar Entry II. "Experience/Competence" is not under the Rubric of"Fitness" III. Under Vermont Case Law Character and Fitness Takes Place before the Bar Exam IV. Laches Would Apply V. Bar did not show evidence of bad character as required by "In re Monaghan" No. 1937 VT SC. Bar did not meet its "Valid Reason" burden under "Monaghan b. Constitutional Arguments V-XI 12-15 V. "Fitness" Was not a Noticed Part of the Character and Fitness Interview under Fifth Amendment VI. There Is No Appellate Standard ofReview VII. No Code of Violations Has Been Articulated to Restrict Bar Entry VIII. Different Treatment of Applicants and Bar Members for Same Behaviors Violates Vermont Equal Punishments Doctrine and Constitutional Equal Protection XI. Prosecutor and Hearing Officer Functions Cannot be Combined X. Bar Admission Has Become Arbitrary and Unpredictable/See Vermont Attorney Jansen Willhoit (EX 3) 29 6. Conclusion 16 30 7. ReliefRequested 31 8. Verification 32 9. Certificate ofNotice and Mailing 33 34 Robert Grundstein Esq. 17 18 19 2 Complaint for TRO!Injunction!Declaratory Relief Case 5:17-cv-00075-gwc Document 11 Filed 05/01/17 Page 2 of 19 1 Basis for Jurisdiction 2 3 Jurisdiction is proper under 28 USC 1331, 28 US.C. § 1367 and 42 USC 1983. 4 Declaratory Relief is appropriate under 28 USC 2201-2202. 5 It is a cause of action involving federal questions under the Fifth, Sixth and Fourteenth 6 Amendments and under Article IV, Section 2, Clause 1 "Privileges and Immunities". 7 Statement of the Claim 8 This Claim involves a state instrumentality acting unconstitutionally under color oflaw. 9 The Character and Fitness hearing pertinent to this action occurred in Vermont on 10 October 20, 2016 and February 1, 2017. Activity between March 2014 and October 20, 2016 is 11 also relevant to this action. 12 There is no code of conduct controlling attorney admissions. This Violates the Fifth 13 Amendment. A "prosecuting" member of Character and Fitness cannot define an offense and the 14 penalty. The same behavior for which admission is denied could subject a state bar member to a 15 minor letter of admonition. This is an arbitrary discrimination against applicants and violates 16 Fourteenth Amendment Equal Protection. It also discriminates between in state bar members and 17 out of state applicants who have a liberty interest in pursuing a profession in the several states 18 under Article IV, Privileges and Immunities. 19 Separation ofPowers should be mentioned. The Supreme Court has plenary control over 20 bar matters. It has not separated legislative, adjudicative and executive functions. The Supreme 21 Court writes its own rules, appoints committee members for Character and Fitness hearings and 22 reviews its own activities. This is in contrast to states like California which have independent bar 23 courts with rules drafted by the legislature. Vermont is trying to correct this now with House Bill 24 44 7, but it is still in the committee stage. 3 Robert Grundstein Esq. Complaint for TRO/Injunction/Declaratory Relief Case 5:17-cv-00075-gwc Document 11 Filed 05/01/17 Page 3 of 19 1 2 3 I Facts 4 1. In February of2014, Grundstein contacted the Vermont Board ofBar Examiners. He 5 spoke with representative Martha Hicks-Robinson; 6 2. Ms. Robinson told him he could take the exam only if he was of good moral character 7 and it was a pre-condition to taking the exam. "Character" is measured in two year increments; 8 3. Vermont case law places Character and Fitness ("C and F") before the exam. See last 9 sentence, "In re Monaghan" VT Sup. Ct., No. 1937 (1966), (infra, pg 9 of this brief); 10 4. There is no other rule or statute to the contrary; 11 5. Grundstein told Martha Hicks-Robinson that there may be an issue with an Ohio 12 misdemeanor alleged to have happened in 2003. Grundstein proved he was not in Ohio at that 13 time and that he was subject to a vendetta for writing an editorial about a corrupt Ohio judge. 14 Grundstein was prosecuted for exercising his 1st Amendment rights to defend the Constitution ; 15 6. Martha told Grundstein to write a letter to the Board ofBar Examiners and they will 16 determine if he could sit for the July, 2014 Bar. Grundstein sent this letter dated April 30, 2014. 17 It described any uncertainties the Board might find in his record; 18 7. Two weeks before the July 2014 Bar, Grundstein received an email from the Board of 19 Bar Examiners. It gave him permission to sit for the July 2014 Bar exam; 20 8. Grundstein sat for the exam. He passed the multistate, but failed the essays; 21 9. On February 24-25,2016, Grundstein passed both parts ofthe exam after three tries. 22 He also passed the MPRE in fall of2016; 23 10. No new character issues were raised or discovered by the NCBE or state character 24 investigations over the interval during which Grundstein took the Bar Exam three times; 4 Robert Grundstein Esq. Complaint for TRO/Injunction!Declaratory Relief Case 5:17-cv-00075-gwc Document 11 Filed 05/01/17 Page 4 of 19 1 11. In May of 2016, Grundstein received a letter from the Character and Fitness 2 Committee, which is a subgroup of the Board ofBar Examiners. It said he would not be certified 3 and could not swear in unless he met with the committee to address concerns; 4 12. Grundstein notified the committee that character and fitness in Vermont takes place 5 before the exam. He also said laches and estoppel apply. It would be sadistic and illegal to place 6 a contingency on his bar admission. The committee refused to strike the interview; 7 13. Grundstein attended an interview on October 20, 2016. He was accompanied by 8 attorneys Paul Gillies and Thomas Mercurio; 9 14. The committee was composed of two lay people and one attorney acting as Chair, 10 David Tartter; 11 15. There was no independent and neutral hearing officer; 12 16. The Chair acted as prosecutor and judge. He participated in the creation of a final 13 determination; 14 17. There was no articulated burden of proof There was no standard such as 15 "preponderance of the evidence", "clear and convincing", "beyond a reasonable doubt", etc. 16 applied to the hearing; 17 18. There were no articulated offenses by which a party could be denied admission other 18 than passing the bar and doing an office clerkship. It was completely personalized and relied on 19 a set of rules and procedures very different from the Rules of Professional Conduct and 20 Procedure used in Attorney discipline. The Character and Fitness Committee defined the 21 offense and the penalty; 22 19. An applicant can be denied admission for the same behavior for which a licensed 23 attorney might be subject to a minor admonition or no disciplinary action at all. 5 Robert Grundstein Esq. Complaint for TRO/Injunction/Declaratory Relief Case 5:17-cv-00075-gwc Document 11 Filed 05/01/17 Page 5 of 19 1 An out of state applicant is subject to the same discriminatory procedures and 2 determinations. This violates Article IV Privileges and Immunities and the Liberty Right to 3 pursue a profession; 4 20. The "prosecutor" /Character and Fitness Committee, defines both the offense and the 5 punishment; 6 21. On February 1, 2017, the Committee refused to certify Grundstein saying, "he could 7 not adequately represent clients" (pgs. 23-26 of the Character and Fitness opinion, EX 1). The 8 opinion said professional competence is a part of"Fitness". This is wrong. "Fitness" is limited to 9 three health conditions; physical disability, psychiatric condition and problems with substance 10 abuse. The committee found no physical, psychiatric or substance abuse problems with 11 Grundstein. See Vermont Supreme Court Administrative Order 9, Rule 16(b)(2) "Definitions and 12 Purpose": 13 "(2) Fitness; Fitness is the effect, if any, of any health condition that presently manifests 14 in conduct by the Applicant that is likely to pose a substantial risk of harm to the public or the 15 legal system. "; 16 22. The Committee said it " ... does not have reason to doubt Mr. Grundstein's 17 honesty, ethics or truthfulness" ... Opinion, pg. 23, EX 1; 18 23. The document was a confusing and amorphous read. It didn't have a distinct "Order" 19 section. I doubt it was drafted by an attorney; 20 24. Three important items about which Grundstein testified were missing from the 21 February 1, 2017 Character and Fitness Opinion: 22 1) Grundstein testified that he participated in the three month Office Clerkship under 23 Rule of Admission 6(i)(1). (See letter, EX 2) 6 Robert Grundstein Esq. Complaint for TRO/Injunction/Declaratory Relief Case 5:17-cv-00075-gwc Document 11 Filed 05/01/17 Page 6 of 19 1 2) Vermont State Bar Counsel Michael. Kennedy authorized Grundstein to say that Mr. 2 Kennedy "had no problem with Grundstein's admission to the bar" Transcript, pg. ?lines 2-13; 3 3) Grundstein's work against corruption in Ohio and the FBI raids which confirmed him. 4 25. "Professional Experience" was not a noticed part of the Character and Fitness 5 interview. It was not on the list of concerns in their May, 2016letter; 6 26. Character and Fitness did not move to amend their "Notice-Complaint" to include 7 "professional competence" prior to hearing; 8 27. Competence, for the purpose ofBar Admission, is based on passing the bar and 9 participation in the Office Clerkship under Vermont Rules for Admission to the Bar 6(i)( 1). 10 Grundstein. It is a three month program which Grundstein participated starting December 2015 11 with attorney Bill Cobb; 12 28. A Bar proceeding cannot amend its charges/concerns at hearing. See "In Re Ruffalo", 13 390 us 544; 14 29. The Fifth Amendment requires notice of charges prior to hearing; 15 30. Grundstein moved the Committee to clarify its opinion, reconsider its determination 16 and certify my entry. It refused to act on his motions; 17 31. Appeal must be taken in the Vermont Supreme Court. Preliminary activity is taking 18 place there now; 19 32. There is no Standard ofReview for Appeal. I repeat, there is no Standard ofReview; 20 3 3. Vermont Rule for Admission to the Bar 18( d) gives the Supreme Court the "right to 21 take any action consistent with its Constitutional Authority", and the term "sui generis" keeps 22 appearing but a standard of review for Character and Fitness proceedings has not been 23 established. The Supreme Court can do whatever it likes; 7 Robert Grundstein Esq. Complaint for TRO/Injunction/Declaratory Relief Case 5:17-cv-00075-gwc Document 11 Filed 05/01/17 Page 7 of 19 1 34. The language of 18(d) is an enabling rule which permits the Supreme Court to draft 2 necessary rules it hasn't drafted yet; 3 35. The Supreme Court could accept a determination from Character and Fitness, created 4 without Due Process as well as being contrary to fact and state law; 5 36. Without legal criteria, the Vermont Supreme Court could refuse my entry to the bar 6 without any Due Process, reference to rules, further activity or legal analysis; 7 37. A House Bill is being discussed to address the defects of Vermont's attorney 8 admissions procedures. See H. 443/Maida Townsend, Chair; 9 3 8. Grundstein would have to wait another two years from the date of the Character and 10 Fitness opinion (February 1, 2017) to reapply for bar membership. 11 39. He could have gone through Character and Fitness twice between the times he 12 first applied in March of 2014 to the present. 13 II 14 Standards to Apply Injunctive Relief 15 16 1. Grundstein does not seek money damages, he seeks bar status; 17 18 2. Grundstein would be subject to irreparable harm without injunction. He would be 19 denied bar status and have to wait years to reapply and the state court proceedings are very slow. 20 A Wisconsin attorney named Eric Brittain applied for Vermont admission in March, 2015 and 21 met with Character and Fitness in August of 2015. Brittain was denied certification and 22 appealed. His status is still not determined, over 2 years later. Grundstein should not be subject 23 to such a standardless, deferred and uncertain process; 24 3. Grundstein is likely to succeed on the merits. First; Character and Fitness takes place 25 before the bar exam. See "In Re Monaghan", VT Sup. Ct. No. 1937, (infra, pg 9 of this brief). 26 There is no rule, statute or case law to the contrary. Second; The Committee said it "does not 8 Robert Grundstein Esq. Complaint for TRO/Injunction/Declaratory Relief Case 5:17-cv-00075-gwc Document 11 Filed 05/01/17 Page 8 of 19 1 have reason to doubt Mr. Grundstein's honesty, ethics or truthfulness" ... Op., pg. 23, EX 1. 2 Vermont C and F refused to certify him on the basis of"Fitness" which only pertains to physical 3 and psychiatric condition or substance abuse. See AO 9, Rule 16(b)(2). No physical, psychiatric 4 or addictive conditions were found against him. "Fitness" was not a noticed part of the C and F 5 interview. It was not discussed during the interview and there was no advance notice that it 6 would be discussed at the interview. The C and F "opinion" said that "professional experience" 7 is part of fitness. It's not. Minimal competence is proved under VT Rule of Admission 6(i)(l) by 8 passing the bar and participating in the three month office clerkship which Grundstein, EX 2; 9 4. The public interest would be served by injunction. Vermont's process is not suitable 10 for application or review in its own state forum. It needs a new statute and rules. Vermont bar 11 applicants have been subject to the uncertainties of a personalized process which violates Due 12 Process, Article IV Privileges and Immunities and Equal Protection. Vermont's present process 13 for bar admission is closer to the methods of joining a fraternity or private club than those 14 required after "In re Ruffalo" 390 U.S. 544, which insisted on the application of Constitutional 15 procedures to bar matters. Attorney and Bar licensing should be conducted according to the 16 administrative standards used for other licensed professions in the state. 17 III 18 Brief in Support of Relief 19 Matters of State Law I-IV/Constitutional Issues V-IX 20 21 I 22 Grundstein Has Completed All the "Experience" Preconditions for Bar Entry 23 24 There are only two "experience/competence" criteria for bar entry. The first is passing the 25 bar. Under Rule for Admission 5(b ), this is evidence of minimum competence. Second is 26 participation in the three month Law Office Clerkship under Rule of Admission 6(i)(1 ). 27 Grundstein has done both ofthese. 9 Robert Grundstein Esq. Complaint tor TRO/Injunction/Declaratory Relief Case 5:17-cv-00075-gwc Document 11 Filed 05/01/17 Page 9 of 19 II 1 2 3 "Experience/Competence" is not under the Rubric of"Fitness" 4 "Fitness" only pertains to substance abuse, physical health and psychiatric condition. See 5 Vermont Supreme Court Administrative Order 9, Rule 16(b)(2) "Definitions and Purpose": 6 "(2) Fitness; Fitness is the effect, if any, of any health condition that presently manifests 7 in conduct by the Applicant that is likely to pose a substantial risk of harm to the public or the 8 legal system. " 9 This is confirmed by "In re Hirsch" 2014 VT 28, para. 6, "Fitness, as used in these rules, 10 is the assessment of health ... " 11 III 12 Under Vermont Case Law Character and Fitness Takes Place before the Bar Exam 13 Further Proceedings Are Estopped 14 Grundstein Had Legitimate Expectation That This Contingency Passed Prior to Exam 15 See "In re Monaghan", Supreme Court ofVermont, No. 1937, 222 A.2d 665 (1966), in 16 which the petitioner asked to sit for the exam; 17 "The petitioner, a man 56 years old, by his application to this court seeks the right to 18 take the examination for admission to the Vermont Bar to be given to qualified applicants in 19 September 1966" .... " It follows, from the views expressed that the matter is resolved in favor of 20 the applicant and the order of the court is: The application of Carleton N. Monaghan to take 21 the 1966 examinations for admission to the Vermont Bar is granted, the result to be certified 22 to the Chairman of the Board ofExaminers." 23 No Rule to the Contrary/ Ambiguity Resolved by Rule of Lenity 24 25 See "State v. Hurley" 2015 VT 46, (J. Robinson); 26 "Finally, we are cognizant of the rule oflenity, the principle that "requires that any 27 doubts created by ambiguous legislation be resolved in favor of the defendant" and construed 28 against the state; citing "State v. Goodhue", 2003 VT 85, ~ 21, 175 Vt. 457. 29 IV 30 Laches Would Apply 31 Character and Fitness May Not Impose a Condition It Could Have Imposed Three Years Prior 32 Grundstein Could Have Gone Through Character and Fitness TWICE over the Past 3 Years 3 3 Bar cannot tell Grundstein, in February of 2017, a year after he passed the bar and three 34 years after he originally sat for the first of three sittings, that he should re-apply after he gets 10 Robert Grundstein Esq. Complaint for TRO!Injunction/Declaratory Relief Case 5:17-cv-00075-gwc Document 11 Filed 05/01/17 Page 10 of 19 1 more experience. Bar had the opportunity to tell Grundstein of any legal pre-conditions years 2 ago. He could have gone through Character and Fitness TWICE over this period. 3 Laches and Estoppel apply against a Character and Fitness contingency at this point of 4 Grundstein's application to the bar. Grundstein first applied to take the bar in March of2014. He 5 did NOT want to spend time and money taking and possibly re-taking the bar if he was going to 6 be refused on character grounds after passing the exam. 7 v 8 Vermont Character and Fitness Did Not Meet Obligation to Prove Current Bad Character 9 10 The Character and Fitness Committee did not meet its burden to prove current bad 11 character. The Vermont Supreme Court found an interval without significant violation is 12 sufficient to prove Good Character. See "In re Monaghan", No. 1937, Vermont Supreme Court: 13 " ... Irrespective ofwhether the practice oflaw is a right or a privilege, a person cannot 14 be prevented from practicing law except for valid reasons, such practice not being a matter 15 of the state's grace, citing "Schware v. Board ofBar Examiners", 353 U.S. 232 .... 16 On the record produced, the case lacks satisfactory proof of the applicant's bad moral 17 character, or specific acts of immorality, untruthfulness, or dishonesty, which shows that 18 he does not /presently/ possess the requisite qualifications to take the bar examination. 19 It follows, from the views expressed that the matter is resolved in favor of the applicant 20 and the order of the court is: 21 The application of Carleton N. Monaghan to take the 1966 examinations for admission to 22 the Vermont Bar is granted." 23 24 25 26 27 28 29 30 11 Robert Grundstein Esq. Complaint for TRO!Injunction/Declaratory Relief Case 5:17-cv-00075-gwc Document 11 Filed 05/01/17 Page 11 of 19 1 Constitutional Concerns 2 Respondent Should Not Be Subject to Uncertainties of Further Proceedings 3 ~ 4 "Fitness" Was not a Noticed Part of the Character and Fitness Interview under Fifth Amendment 5 Due Process of"Notice and Hearing" 6 Grund stein's Physical Health, Psychiatric Condition or Addictive Behavior was not Mentioned 7 in the "Charging" Correspondence to Grundstein 8 It was not a Subject ofExchange During the Interview 9 10 There was no Fifth Amendment Notice with respect to "fitness" or professional 11 competence. It was not part of the subject matter described in the Character and Fitness 12 "Invitation" to the interview, nor was it discussed at the interview. 13 VII 14 There Is No Appellate Standard ofReview 15 There is no Post Character and Fitness Mandate for Hearing Before a Neutral Hearing Officer 16 This Court Could Accept the Recommendation of Character and Fitness without Further 17 Proceedings 18 19 There isn't a standard of review articulated for appeals from Character and Fitness 20 recommendations. Vermont Rule for Admission to the Bar 18( d) gives the Supreme Court the 21 "right to take any action consistent with its Constitutional Authority", and the term "sui generis" 22 keeps appearing but a standard of review for Character and Fitness proceedings has not been 23 established. 24 ~II 25 No Code of Violations Has Been Articulated to Restrict Bar Entry 26 There are No Enumerated Behaviors or Actions Which Give Notice of Grounds against 27 Admission 28 Rules are Void for Vagueness 29 30 Pursuing a profession is a fundamental liberty right under Fourteenth Amendment 31 Privileges and Immunities. It is also one under Article IV, Privileges and Immunities. A liberty 32 right can only be restricted on the basis of a Constitutional Rule or Statute. Character and 33 Fitness is completely personalized and makes no reference to any code or set of rules which 12 Robert Grundstein Esq. Complaint for TRO/Injunction!Declaratory Relief Case 5:17-cv-00075-gwc Document 11 Filed 05/01/17 Page 12 of 19 1 adequately describe prohibited behavior and penalties for it. It is quite different from the 2 Vermont Code of Professional Conduct which enumerates offenses and then makes reference to 3 state case law and the ABA suggested sanctions as guidance for penalties. 4 "Federal courts may strike down a statute as void for vagueness for "either of two 5 independent reasons." A law is unconstitutionally vague "if it fails to provide people of 6 ordinary intelligence a reasonable opportunity to understand what conduct [the law] 7 prohibits." Alternatively, a statute is impermissibly vague "if it authorizes or even encourages 8 arbitrary and discriminatory enforcement." A law that falls into either category runs afoul of 9 the Constitution's guarantee of due process. These principles apply to criminal laws, including to 10 statutes that "fix sentences. "They also apply to civil laws so long as those laws reach "a 11 substantial amount of constitutionally protected conduct ... " , "Why Vague Sentencing 12 Guidelines Violate the Due Process Clause", Kelsey McCowan Heilman, citing "Hill v. 13 Colorado", 530 U.S. 703, 732 (2000). 14 15 Associate Justice Denise Johnson confirmed this constitutional standard in "State v 16 Rooney", 2011 VT 14, para 51; 17 "Although a degree of prosecutorial discretion is acceptable, we are skeptical of statutes 18 that appear to afford the prosecution a choice of two penalties of such disparate nature."; In re 19 G.T., 170 Vt, 507, 514, 758 A.2d 30 (noting that despite the importance ofprosecutorial 20 discretion, "[i]t is one thing to give discretion in enforcing a legislatively defined crime; it is 21 quite another to give prosecutors the power to define the crime"). Indeed, even assuming 22 that the State's charging decision is made in complete good faith, it is inherently and 23 unavoidably arbitrary where standards to govern the choice are lacking ... " 24 These standards apply to administrative proceedings as well. See "McMurtry v. State 25 Board ofMedical Examiners", (1960) 180 Cal. App. 2d 760, 766-767 [4 Cal. Rptr. 910], in 26 which the court stated various tests for vagueness: 27 "It is well settled that 'a statute which either forbids or requires the doing of an act in 28 terms so vague that men of common intelligence must necessarily guess at its meaning and differ 29 as to its application violates the first essential of due process oflaw.' [Citations.] This principle 30 applies not only to statutes of a penal nature but also to those prescribing a standard of 31 conduct which is the subject of (66 Cal. App. 3d 621] administrative regulation. [Citations.] 32 The language used in such legislation 'must be definite enough to provide a standard of conduct' 33 for those whose activities are prescribed as well as a standard by which the agencies called upon 34 to apply it can ascertain compliance therewith." 35 13 Robert Grundstein Esq. Complaint for TRO/Injunction/Declaratory Relief Case 5:17-cv-00075-gwc Document 11 Filed 05/01/17 Page 13 of 19 --------------------------, 1 IJ{ 2 Different Treatment of Applicants and Bar Members for Same Behaviors Violates 3 Vermont Equal Punishments Doctrine 4 See "In re Brittain", 2016 VT 012, J. Rainville Misconduct, Janssen Willhoit (sec ){1, infra) 5 Judicial Officer Cannot Define an Offense and its Penalty 6 Rule ofLenity Applies to Ambiguous Penalties for Identical Behaviors 7 8 Bar members and bar applicants will be subject to different penalties based on the same 9 behavior. Eric Brittain, ("In re Brittain", 2016 VT 012), was not certified by Character and 10 Fitness based on a contempt finding in Wisconsin but Vermont Superior Court J. Rainville was 11 found to have altered a court order and was not disbarred. (I like judge Rainville and make it a 12 point to arrange hearings before him. Who among us has not committed a wrong?) 13 Former Associate Justice Denise Johnson has articulated Vermont law on this matter. See 14 "State v Rooney", 2011 VT 14, para 53,54, 56, 57: 15 " ... where "the same act committed under the same circumstances is, by virtue of the 16 prosecution's charging option or whim, punishable either as a felony or as a misdemeanor, under 17 either of the two statutory provisions, precisely because the elements of proof essential to either 18 conviction are exactly the same" equal protection is violated. "State v. Hoang" 947 P.2 360 19 (Haw. 1997) 20 The overarching principle at stake in these decisions as in the case before us is simply 21 this: that we are a government oflaws and not of men. This principle is elegantly expressed in 22 the Vermont Constitution as follows: "That all power being originally inherent in and 23 consequently derived from the people, therefore, all officers of government, whether legislative 24 or executive, are their trustees and servants; and at all times, in a legal way, accountable to 25 them." Vt. Const. ch. I, art. 6. A legislative scheme that permits the State to bring criminal 26 charges against its citizens arbitrarily and without adequate standards is a government not 27 oflaws, but of men. We countenance such a result at our peril. 28 .... the decision as to which penalty to seek cannot be a matter of prosecutorial 29 whimsy in charging." State v. Clements, 734 P .2d 1096, 1100 (Kan. 1987). Thus, where 30 statutes define "identical offenses, a defendant can only be sentenced under the lesser penalty." 31 Id. This rule has come to be known as the "identical offense sentencing doctrine," State v. 32 Reyna, 234 P.3d 761, 780 (Kan. 2010); State v. Thompson, 200 P.3d 22, 33 (Kan. 2009), and 33 provides simply that: "Where two criminal offenses have identical elements but are classified 34 differently for purposes of imposing a penalty, a defendant convicted of either crime may be 14 Robert Grundstein Esq. Complaint for TRO/Injunction!Declaratory Relief Case 5:17-cv-00075-gwc Document 11 Filed 05/01/17 Page 14 of 19 1 sentenced only under the lesser penalty provision." State v. Nunn, 768 P.2d 268, 284 (Kan. 2 1989) ... 3 "The doctrine is similar to the settled "rule of lenity," although its rationale differs 4 somewhat. The latter is predicated on the fundamental right to adequate notice of what 5 conduct may give rise to criminal punishment, and the concomitant obligation to resolve any 6 statutory ambiguity in favor ofthe accused. See State v. LaBounty, 2005 VT 124, ~ 4, 179 Vt. 7 199, ("In interpreting a criminal statute, the rule oflenity requires us to resolve any 8 ambiguity in favor of the defendant."); State v. Oliver, 151 Vt. 626, 629, 563 A.2d 1002, 1004 9 ( 1989) ("Penal statutes ... are to be strictly construed in a manner favorable to the accused.") 10 X 11 Prosecutor and Hearing Officer Functions Cannot be Combined 12 13 The Committee Chair cannot represent the state bar while acting as judge/hearing officer. 14 See "Goldberg v Kelly", 397 U.S. 254, 271. Due Process requires that a decision maker cannot 15 participate in creating the determination. There was not a neutral, third party arbiter: 16 "The decisionmaker must be impartial .... he should not have participated in making the 17 determination under review." "Goldberg, P. 271. 18 XI 19 Bar Admission Has Become Arbitrary and Unpredictable 20 See Vermont Attorney Jansen Willhoit (EX 3) 21 22 Jansen Willhoit was convicted of"Theft by Deception" in Kentucky. He defrauded 23 investors of$150,000.00 (one hundred and fifty thousand) and served time in prison. The 24 Vermont Supreme Court doesn't seem to have a record that he met with the State Character and 25 Fitness Committee. 26 (One ofthe problems with Vermont C and F is the hearings are closed. They are secret 27 and no record is available if a party is admitted without appeal. This is a secret body oflaw 28 which eliminates a record for stare decisis. A secret body of law is plainly wrong.) 29 30 15 Robert Grundstein Esq. Complaint for TRO!Injunction/Declaratory Relief Case 5:17-cv-00075-gwc Document 11 Filed 05/01/17 Page 15 of 19 1 Conclusion 2 Present Character and Fitness Lacks Protection of AP A Style Hearings Extended to Other 3 Professions in Vermont and Nationally 4 The Only Person Recently Certified by Chair Tartter Was His Own Employee, Andrew Delaney 5 6 The Character and Fitness interview is something of a contradictory and standardless 7 proceeding. It lacks an articulated quantum of evidence/burden of proof ("clear and convincing", 8 "preponderance of the evidence", etc.), a hearing officer who is not an interested party, a Rule 9 with articulated offenses by which a party is not subject to admission and other Constitutional 10 protections for bar matters after "In re Ruffalo", 390 U.S. 544. There is no articulated threshold 11 below or above which an applicant is admitted or denied admission. It has also been recognized 12 that administrative proceedings don't include a determination of the constitutionality of 13 the laws under which they operate. See "Weinberger v. Salfi", 422 U.S. 749 (1975). 14 The definition of"character" is not fixed and there is no objective reference which 15 defines offenses pertinent to Bar entry and their respective "penalties" and conditions with 16 respect to entry. There is no gradient for character and fitness defects. Minor defects can have the 17 same effect with respect to entry as large ones. 18 An instructive statute on this comes from Alaska, which admits physicians on the basis of 19 specific reference to its state code ofProfessional Conduct and which makes entry conditional 20 based on the same sanctions to which licensed professional would be subject. An applicant 21 doctor found to have violated the Alaska professional code for doctors could be admitted on a 22 provisional basis including probation, satisfaction of a fine or serving a suspension upon entry. 23 See Alaska Statutes, Title 44, Chapters 35 et seq. and "In the Matter of Cooper", OAH No. 10-01 24 48-MED (Alaska Office of Administrative Hearings) 25 The rules also do not provide clear standards of review for the board's conclusions 26 (mixed findings of fact and law) or its recommendations on sanctions. 16 Robert Grundstein Esq. Complaint for TRO/Injunction/Declaratory Relief Case 5:17-cv-00075-gwc Document 11 Filed 05/01/17 Page 16 of 19 1 Burdens of proof and production are not articulated and are subject to personalized 2 interpretations. In addition, the panel chair acts as prosecutor and judge. The conflict of interest 3 is patent. The committee chair can appropriate and determine an outcome however he/she likes. 4 The functions of Bar Representative and adjudicator should be segregated. 5 The present status of attorney licensing practice contains contradictory procedures. 6 Character and Fitness interviews are a pre "In Re Ruffalo", (ibid) practice by which entering the 7 bar was like applying for a fraternity. There were almost no objective legal or Constitutional 8 standards. People were let in if they were felt to be suitable for the group. Subsequent to "In re 9 Ruffalo" ibid, attorney licensing and discipline became subject to Constitutional standards and 10 Due Process. 11 The present Character and Fitness interview is antiquated and needs to be updated. As it 12 stands, it has the potential to prejudice a reviewing body with an opinion rendered without 13 sufficient procedural and Constitutional protections. 14 Bar matters should be conducted in hearings subject to AP A standards like other state 15 licensing procedures. Rules and penalties must be drafted to satisfy Due Process and the quasi- 16 criminal status of administrative hearing. 17 Grundstein has been asked to do a Law Review article on Attorney Admissions and the 18 Character and Fitness process. He has attached a draft. Perhaps it will be helpful. EX 4. 19 Relief Requested 20 Grundstein asks for the following relief concurrently or in the alternative: 21 1. For a TRO against the February 1, 2017 Vermont Character and Fitness opinion by which 22 Grundstein was not certified is enjoined and declared unenforceable; 17 Robert Grundstein Esq. Complaint for TRO/lnjunction/Declaratory Relief Case 5:17-cv-00075-gwc Document 11 Filed 05/01/17 Page 17 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 2. That the present procedure for attorney admissions is unconstitutional on its face and as applied to Grundstein; 3. That under the rubric of Vermont State Law, Grundstein has no physical or psychiatric disablitites and is not subject to substance abuse. He is fit to practice and should be entered into the bar; 4. That Grund stein should be allowed to swear in to the Vermont State Bar without further obstruction, hearings, examinations or other delay; 5. For a Preliminary and permanent injunction to the same effect as "1" through "4", above; 6. For Declaratory relief to the same effect as "1" through "4", above; 7. For an order to the state Supreme Court directing action in conformity with this opinion which would allow Grundstein to swear in immediately and end all state court activity; 8. For other equitable and legal relief this court finds appropPJte. / r //(~/ .· / S/s ko~ert Gru~d~. Robert Grund stein Esq. 18 Griggs Road Morrisville Vermont 05661 802-888-3 3 34/rgrunds(a),pshift. com Verification I declare under penalty of perjury that the foregoing is true and correct to the best of my 22 knowledge, information, and belief /) ' ' 23 24 25 26 27 18 Robert Grundstein Esq. l /. ~/ S'Js &ooert a~· Robert Grundstein Esq. Complaint for TRO!Injunction/Declaratory Relief Case 5:17-cv-00075-gwc Document 11 Filed 05/01/17 Page 18 of 19 1 Certificate ofNotice 2 I certify that on April, 25 2017, notice of application for TRO, and a copy ofthis 3 Complaint for TRO, etc. was served on Benjamin Battles attorney at the following addresses by 4 telephone, email and USPS; 5 Benjamin Battles Esq., Solicitor General 6 Vermont Attorney General's Office 7 benjamin.battles@vermont.gov 8 802.828.5944 9 10 11 12 13 Robert Grundstein Esq. 19 Complaint for TRO/Injunction/Declaratory Relief Case 5:17-cv-00075-gwc Document 11 Filed 05/01/17 Page 19 of 19 EX 1 (Bold, Paragraph that on reapplication Mr. Grundstein is able to provide sufficient evidence on this point to meet his burden, but he has not done so at the hearing here. The second issue is the disbarment in Washington State. The only item before this Board directly bearing on the disbarment is the Washington State Bar Association summary of the case, which states that Mr. Grundstein was disbarred for a litany of misconduct, not just the conviction. These include frivolous lawsuits and pleadings and disregard of court orders. The Board does not have a good sense of the underlying conduct upon which disbarment was ordered, and Mr. Grundstein has provided nothing to assist us. The Board has not been provided with the full order from Washington State nor, despite a request, the transcript ofthe proceeding. It may well be that the Bar Association was guilty of over- reaching in Mr. Grundstein's case, but the evidence presented to the Board is insufficient to make that showing.Again, on reapplication, Mr. Grundstein may be able to provide sufficient evidence to demonstrate that his disbarment was unwarranted, but he has not done so yet. There is another reason why the Board is declining to certify Mr. Grundstein's good moral character and fitness to practice law. It should first be made clear that, other than the lingering, unresolved questions discussed above, the Board does not have reason to doubt Mr. Grundstein's honesty, ethics, or truthfulness. He has been entirely open with the Board since his original inquiries concerning his background. His testimony at the hearing was candid. He obtained a solid vote of confidence from two Vermont attorneys, one of whom has known him for decades. Should the two issues discussed above be resolved satisfactorily, the Board would have no concerns about Mr. Grundstein's personal integrity. But the Board concludes that Mr. Grundstein's conduct ofthe proceeding demonstrates that he is not currently fit to practice law, in particular, that he would not be capable of providing adequate representation to clients. Case 5:17-cv-00075-gwc Document 11-1 Filed 05/01/17 Page 1 of 1 INSTRUCTIONS: This is a tillable form: to begin, click on a section and then tab to all other sections. Should you experience difticulty, you may print out this form and fill it in by hand. Fil out the bm, print, keeping a copy for yourself, and mail to BOARD OF BAR EXAMINERS, 111 Slate Street, SUite 98, Mon1pelier, VT Q560g...()701, with the $25 fee for first-time registration of clerkship. This form must be filed within 30 days of commencement of 1he clerkship. If any portion of the clerkship is to be completed Oldside of Vermont. you must seek approval of1he Board of Bar Examiner& before commencement. A regi&tranrs failure to file a timely certificate wil JeSUit in the withholding of credit for study, except for exbaonlinary instances. You are advised to read the Rules of Admission to the Vermont Bar avatlable on our website at www.vermordjudiciarv ora Questions should be directed to jud.attylicensing@vermont.gov Notice of Commencement of 3-month Law Office Clerkship Under Sec. 6(1)(1) .. /2-L c~~ (Applicsnf), pursuant to the provisions of the Rules of Admission give notice: 1. I am a citizen of the United States or an afaen lawfuly present in the United Slates, at least 18 years of age, of good moral d / ...,/ 17 . (Full character and fitness, and reside at: / J" 45f' .J ~ t!"!1Ubz-rt?~ ·//.?,~J ~a,A :;:ttci#. cv ""- Telephone and Email Address Signature of Registrant hd Date I have 0 have noj):a.previously registered a Notice of Commencement of Clerkship. If yes: Name of Judge/Attorney: . Date: Certificate of Judge or Attorney I, (Name of Judge/ Attomey): : { ( \,~~ k , ua pursuant tD the provisions of the Rules of Admh;sion, certify that on (Date} (Name of Registrant): fLy(~ 7 {j t~"' ~ }-#Jr-- commenced the study of law 1n my office and under my supervision with the intention of applying for admission to the Bar of th;e Vermont Supreme Court. I have been admitted tn 1he Bar of the Vermont SUpreme Court not less than three {3) years prior to Registranfs commencement of such study. I further certify that I have personaly investigated tbe moral character and fitness of the Registrant and I represent to the Vennont SUpreme Court dtat, to 1he best of my knowledge. the said Registrant meets 1he mquintments of good moral c:haracfer and fitness as provided in the Rules of Admission to. the Bar of the Vennont Supreme Court. Dated at (City) 5J- jP l.fvt& "'~ , Vermont, this 1 ~ {!j- day of @ ~~ , 20 _Ll- ~{;,.~· (Signature of Judge/Attorney) Case 5:17-cv-00075-gwc Document 11-2 Filed 05/01/17 Page 1 of 1 EX3 Convict-Turned-Lawmaker Pushes Criminal Justice Reform in Vermont "Seven Days" April20, 2017/Aiicia Freese • Janssen Willhoit Rep. Janssen Willhoit (R-St. Johnsbury) stood in the chamber ofthe Vermont House for 90 minutes last month defending a bill that would allow some ex-convicts to have their records wiped clean more quickly. The debate turned intense as other Republican lawmakers challenged the notion that criminals deserve a fresh start. Willhoit understands better than most the benefits of a second chance. "I'm no different than these other individuals" seeking expungement, the swift-talking 38-year- old told his colleagues. He didn't explain- but lawmakers knew what he meant. Eight years ago, Willhoit was released from a Kentucky prison, where he had served five years for bilking investors out of more than $100,000. With a felony on his record, the best job he could find was prepping poultry at a Chick-fil-A. Since then, Willhoit has made a remarkable turnaround - in part because he won a pardon from the Kentucky governor. Today, the former felon is practicing law as a defense attorney in Vermont's Northeast Kingdom and shaping the law as a state representative. He has applied to be the state's next U.S. attorney. One sticking point for some critics: Willhoit has never paid back his former clients. Legally, he didn't have to pay restitution because he completed his prison sentence. He claims his former clients pushed to keep him behind bars, knowing the tradeoff. Practically, he said, he lives paycheck to paycheck and isn't in a position to return the money. ', '1, Case 5:17-cv-00075-gwc Document 11-3 Filed 05/01/17 Page 1 of 1 In acknowledgement of vr Bar Counsel M Kennedy Esq., who is pushing Sisyphus' rock up the right hill The Character and Fitness Process Out of State/In State: Bar Admissions under Privileges and Immunities Introduction Ethical Divergence of State Bars in the Time of Trump You're never that far from a concentration camp. We assume law will protect us from them, but what happens when they are created by law ... Executive Order 9066 and Japanese internment, for example?(!) Humans have a distressing capacity to liquidate their competitors and resolve uncertainty by means of de-licensing professional practice, incarceration or execution. We're both the most important things in the world and the least. Love exists, but you're lucky if you get it ..... from your mom. The bulk of adult relations are utilitarian; they involve income, power and preferential association. Everyone likes ethics and morality until the cost of exercising them becomes too high. In times of economic uncertainty, the costs become intolerable very quickly. Fear is the strongest emotion. With respect to adult life, legal systems are made to protect some calculus of value within these relationships. Fascism is a form of corporatism in which a small group of people control economic, political and legal power. Corporatist Policy is to protect this monopoly and limit participation of controlled and subordinate parties. It rewards those best adapted to Hobbes' state of nature (2) and those prone to disproportion. Liberal Democracies theorize these same powers as property of individual citizens only to be administered and maintained by government as a cipher, subordinate to individual wills and according to the terms of a Constitution, better described as a social contract. By prioritizing the individual, democracies seek to reduce the extent to which unfair advantage and monopoly can be exercised against parties. It seeks an equilibrium in which people are not reduced to powerless objects of extraction. The legal system is the means to the police power which enforces a style of government. 1 Case 5:17-cv-00075-gwc Document 11-4 Filed 05/01/17 Page 1 of 14 But what happens when a legal administration pledged to a democratic style of ethics becomes politicized and acts as a private interest group primarily concerned with the income and professional status of its members? What happens if state bar associations act to exclude economic competitors? What happens if state bar associations act to silence unpopular opinion? What happens if state bar associations discipline attorneys who expose defects within the state bar? The corrupt love ethical systems. They operate as state systems under a presumption of legitimacy protected by the police power and employment property rights which presumption is very difficult to challenge and reverse. The divergence of American state bar associations with respect to attorney discipline is significant. (The character divergences are also significant. Some are admirable, others venal.) Some have adopted a rule by which any disbarred in another state cannot apply for a local bar exam. (3) One says an applicant must admit that the discipline imposed in a foreign state was legitimate, even if it wasn't. ( 4) What about the right to collaterally attack a judgment on the basis of fraud, unconstitutional procedure or jurisdiction? What about the Public Policy Exception to Full Faith and Credit? Some display corporatism at the expense of law and American constitutional culture (5), others support this culture. Corruption is not only expressed in rigged elections; it is often directed towards state professional licensing and permission to pursue a living (6). A group is judged by the response of its constituents or leaders in response to a wrong committed by a member. As a federal republic, the several United States have an interest in the Constitutional failures of all the other states and a responsibility to condemn these failures and correct them when possible. Americans really have no other place to go. We can't afford to live in our own ethical sepsis. How are these state bar associations to respond when confronted with a 2 Case 5:17-cv-00075-gwc Document 11-4 Filed 05/01/17 Page 2 of 14 failure of a sister state bar? Suppose an attorney is being punished by his home-state bar for virtuous behavior? To what extent should a second state accommodate and examine the circumstances of an attorney subject to discipline in another state? What is the nature of the disciplinary process, in the first place? (American political culture and its commitment to individual rights was influenced in part by; The Enlightenment (7), John Locke (8), Liberalism Protestant Mercantilism (9) and Jean Jacques Rousseau (10). Names associated with The Enlightenment include Benjamin Franklin, Thomas Jefferson, James Madison and John Adams. Thomas Paine relied on Rousseau for his works) Character and Fitness for the Foreign Attorney Applicant Attorneys with a bar credential from a foreign state, those who have passed the bar in a foreign state but haven't sworn-in and new examinees applying to the forum in which they took the bar, are alike with respect to the process of Bar Admission. They must go through Character and Fitness in the forum in which they choose to be a bar member. Being denied admission is the inverse of being disbarred; a party cannot practice in that state. But as it stands, a foreign party can be denied admission in their state of choice for behavior or a disciplinary record which would not have excluded them from practice in his/her bar state. It is possible for a foreign state to decline admission to an attorney who was suspended in his original bar state when the same offense for which the attorney was suspended would have been subject to suspension or lesser sanction in the foreign state reviewing the application. 3 Case 5:17-cv-00075-gwc Document 11-4 Filed 05/01/17 Page 3 of 14 The Nature of the Disciplinary Process/Burden ofProo£1Quantum ofEvidence 1 Discipline and Due Process in the Home State Most attorneys subject to discipline in their home state go through administrative style hearings by which the state bar must prove its case by "clear and convincing evidence" (11) or the "preponderance of the evidence", civil standard (12). One state, Georgia, insists on the criminal standard of"beyond a reasonable doubt". Hearings are normally preceded by pre-trial screenings to divert unnecessary charges from trial and to allow negotiated dispositions. Most states organize disciplinary hearings as part of the state Supreme Court, but some allow a respondent to have his/her case heard in a civil court (13), or in special disciplinary courts independent of the state supreme court (14). Administrative standards and rules of evidence including "probative and relevant" (15) and "reliable hearsay" are used as well as the higher standards used in civil actions subject to state rules of evidence (16). Some jurisdictions use all their state rules under the State Administrative Procedures Act, Bar Rules ofProcedure, Rules of Civil Procedure, Rules of Appellate Procedure and Rules ofEvidence (17) In general, the disciplinary process has been Constitutionalized since "In re Ruffalo" (18) and includes trial before a neutral hearing officer, the right to subpoena witnesses, notice of charges and their fact bases, pre-trial discovery, right to counsel, right to cross examine, the right of appeal and the Fifth Amendment right against self incrimination. A significant defect which should be mentioned in Bar disciplinary proceedings is their reliance on the ABA Standards for Imposing Lawyer Sanctions which are very vague and don't sufficiently link specific acts of alleged misconduct with a penalty designed to that misconduct. These "Standards" are primarily instructive and direct a decision maker to ask additional questions about what sanction should be imposed. It is the author's opinion that they give the 4 Case 5:17-cv-00075-gwc Document 11-4 Filed 05/01/17 Page 4 of 14 decision maker far too much discretion to impose a penalty and allow a hearing officer to act as a legislature. See article by Professor Leslie Levin, "The Emperor's Clothes and Other Tales About the Standards for Imposing Lawyer Discipline Sanctions", American University Law Review, Vol. 48:1Pg. 38-39; "The ABA Standards resemble the emperor's new clothes: While warmly greeted, it is readily apparent that something important is missing. In fact, while the two-step framework of the Standards which separates the initial determination of the sanction from the consideration of aggravating and mitigating factors-is useful, the Standards are in other respects conceptually flawed, confusing and unworkably vague. As a result, these voluntary standards provide virtually limitless flexibility, but they do not promote the considered decision-making or provide the consistency sought by the ABA Sanctions Committee. Moreover, the ABA Standards prescribe some sanctions that do not adequately protect the public, and fail to provide guidance for the use of other sanctions that may better serve the goals of discipline." II Not So Much for the Others The Problem of"Character" Different Due Process for Out of State and First Time Applicants In practice the character requirement subverts or diminishes the ideals it seeks to affirm. As the United States Supreme Court has acknowledged, the definition of character is "unusually ambiguous," and "necessarily reflect[s] the attitudes, experiences, and prejudices ofthe definer." (19) Although criteria for exclusion must have a "rational connection" with fitness to practice law (20), what constitutes such a connection is widely disputed. Review of judicial and bar committee decision making reveals highly idiosyncratic and inconsistent judgments, both within and across jurisdictions. In fact, bar inquiry frequently extends to juvenile offenses and parking violations, and conduct warranting exclusion has been thought to include traffic convictions 5 Case 5:17-cv-00075-gwc Document 11-4 Filed 05/01/17 Page 5 of 14 and cohabitation. Violation of a fishing license statute ten years earlier was sufficient to cause one local Michigan committee to decline certification. (21) A comparison ofbar admission and disciplinary processes raises further doubts about current character screening. From a public policy perspective, the rationale for bar oversight is stronger for abuses committed after than before licensure. Yet the bar's administration of admission and disciplinary processes has yielded precisely the reverse double standard; both substantive and procedural requirements are far more forgiving for practitioners than for applicants. But "[i]f certain nonprofessional conduct is sufficiently probative to withhold a license, why is it not also grounds for license revocation? As long as bar members are unwilling to monitor their colleagues' parking violations, psychiatric treatment, and alimony payments, what justifies their reliance on such evidence in screening applicants?(22) Quanta of evidence are lacking. Burdens of proof and production has yet to be established. It is not clear whether an applicant has to prove "present good character" or whether the state has to prove "bad character" and what those terms mean. (A statistical study of prior bad or criminal acts referenced in Character and Fitness interviews shows they occurred, on the average, 9 years prior to the interview) (23)The Vermont Statute for Professional Licensing and Administrative Standards lists 15 criteria (with subsections) the state can apply to deny a license or assign conditions to practice a profession in Vermont (24), but it is not applied to attorney licensing. There is no reference to any objective standards or assignments of proof like this in the "Rul~s of Admission to the Bar ofthe Vermont Supreme Court" rule 11 (old rule) and 17 (new rule, essentially identical to old 11). (State bar rules are created in conjunction with the Supreme Court and not the legislature). Rule 17 says an applicant should provide evidence of good character, but neglects to describe the state bar's burden and pleading standards. To confuse 6 Case 5:17-cv-00075-gwc Document 11-4 Filed 05/01/17 Page 6 of 14 matters, (or resolve them in favor of an applicant) "In re Monaghan" (25) stated; "a person cannot be prevented from practicing law except for valid reasons, such practice not being a matter of the state's grace", citing U.S. Supreme Court case "Schware v. Board ofBar Examiners" (26). "Monaghan", ibid, was a Vermont Supreme Court decision on appeal concerning a Vermont bar applicant's request to sit for the exam. In addition to lacking articulated Burdens ofProof ("clear and convincing", "preponderance of the evidence", etc.) the Character and Fitness process does not sufficiently describe offenses which restrict entry or virtues which mitigate offenses and permit entry and their relative importance. The effect of time and virtuous acts as mitigators are not calculated pertinent to specific wrongdoings and categories of wrongdoings. Bar is allowed to define "character offenses" at hearing without a rule providing offense-specific consequences which restrict entry. It's like going to court without knowing the offense you have committed or the range of penalties. An out-of-state applicant must also face a built-in conflict of interest. His/her initial interview at which he/she is asked to prove "good character" is before a panel, representing the bar. The panel "chair" acts as arbiter and "prosecutor-bar representative". There is no neutral, third party hearing officer or rules of procedural conduct. A panel may take use this advantage to divert testimony, obstruct argument or create a one sided record. Without the protections of Civil Procedure Rule 15, a committee may also try to demand more evidence after the hearing is over and the presumptive closure of evidence. If the purpose of new evidence is to give a state bar the opportunity to amend or expand its "complaint", this can't be done. "In re Ruffalo" (27) specifically prohibits amendment of pleadings at hearing and in bar matters in ways which contradict Due Process and Civil Rule 15. 7 Case 5:17-cv-00075-gwc Document 11-4 Filed 05/01/17 Page 7 of 14 ---- --------------- The results of a Character and Fitness panel can be devastating. An additional problem with C and F is that the state Supreme Court rules often don't compel it to do ... anything. It's common to see language and rules which say a state Supreme Court can respond to a Character and Fitness recommendation within the range its "Constitutional Powers", which doesn't have enough meaning or Due Process guarantees. Vermont Rule for Admission to the Bar 18( d) gives the Supreme Court the "right to take any action consistent with its Constitutional Authority". While it normally sends an appeal back for hearing under AP A standards, but it doesn't have to. It could just accept a bad recommendation in which case an applicant could be denied admission without due process and on the basis of an obscenely bad process. Finally, Character and Fitness hearings are closed to the public. Transcripts are created but are not available until after a party appeals. Imagine an applicant who is recommended for admission or one who is not recommended and neither of them appeal. There is no accumulation of standards and case law to develop stare decisis for future determinations. A Supreme Court with administrative responsibility for Character and Fitness proceedings and its body of sub- courts and committees must be able to tell itself and the public what it has done. A body of secret law is plainly wrong. III Privileges and Immunities De Facto Discrimination and the Out-of-State Applicant The Theoretical Confusion of Character and Fitness and An out-of-state applicant who wishes to take a bar exam or transfer his license could be denied the right to a state license on the basis of a prior event for which an active attorney would not lose his/her right to practice in the target state. The same out-of-state applicant will be subject to a less responsible procedure with fewer Due Process protections with respect to a prior event. The decisive influence of that event applied to bar admission will also be determined by a 8 Case 5:17-cv-00075-gwc Document 11-4 Filed 05/01/17 Page 8 of 14 subjective standard, unreferenced to objective criteria. The net effect is to discriminate against foreign and new applicants by making the application process uncertain and to limit the right to a state license on the basis of license practices and criteria which aren't applied to in-state bar members. Under existing circumstances, behavior which may subject a resident attorney to "reprimand" or "suspension" could be the basis to deny a state license to a non-resident. The Clause "Corfield v. Coryell" (28) is a leading case on Article IV, sec. 2, cl. 1 Privileges and Immunities which states; "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." As it threshold matter, the case (J. Bushrod Washington) asks if the privilege or immunity at issue is one of "those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments?" Thus, according to the Court, laws were unconstitutional that disadvantaged people with respect to a fundamental right who make their home in other states. The right to a law license has been found to be a right sufficiently fundamental to be protected by Article IV Privileges and Immunities: For example, in "Supreme Court ofNew Hampshire v. Piper" (29) the Court struck down a residency requirement for admission to the New Hampshire State Bar. The Court held that the practice of law is sufficiently important to the national economy to deserve protection as a fundamental privilege (30). Moreover, in "Supreme Court ofVirginia v. Friedman" (31), the Court seemed to broaden the concept of "fundamental right" to encompass actual equality between residents and nonresidents. The Court held the State of Virginia could not permissibly deny nonresidents the privilege of admission to the State Bar "on motion" or without taking the 9 Case 5:17-cv-00075-gwc Document 11-4 Filed 05/01/17 Page 9 of 14 bar examination. Although the inability of nonresidents to take advantage ofVirginia's special discretionary procedure did not amount to a total bar on their pursuit of a common calling, the Court held that the Privileges and Immunities Clause guarantees citizens the right of practicing law"[ o ]n terms of substantial equality with those enjoyed by residents." (32) (note; inter-state distinctions against foreign attorneys is also subject to scrutiny under the Commerce Clause and Equal Protection, but the author believes those are the subject of another article and chooses to focus on Article IV of the Constitution). A source of confusion concerning attorney discipline and standards for bar admission is based on historical practices which over time became logically and legally, mutually exclusive. In a 1911 case describing the conduct necessary to warrant disbarment, one federal circuit court said: "[The right to practice law," the court held, is not "a property right, to be treated with all the incidents peculiar to property," but is "merely an extraordinary privilege ..• granted ... on certain conditions, upon the reasonable maintenance of which ... depends ... continuance in office." (33) Under traditional legal doctrine, this characterization implied that constitutional law would be neglected as a procedural standard for revocation of an attorney's license. On the prevailing premise that law practice was a privilege, lawyer disciplinary procedure was structured to facilitate suspension or disbarment upon a showing of good cause without much procedure at all. The procedural protections applied with respect to attorney character and alleged misconduct are illustrated in the 1868 case of"Randall v. Brigham" (34) in which the court imposing the sanction was notified of the lawyer's wrong-doing by a letter from the client which, when not disputed by the lawyer, was relied on by the court as a sufficient basis for an immediate order of disbarment. A similar mentality is captured in the more contemporary case of "In re Ruffalo" (35) in which the Court of Appeals for the Sixth Circuit, sitting as a disciplinary 10 Case 5:17-cv-00075-gwc Document 11-4 Filed 05/01/17 Page 10 of 14 committee, focused on one set of charges and then, after a somewhat casual proceeding, disbarred on another. The U.S. Supreme Court took the case and insisted on Constitutional Due Process to be applied in Bar matters. Since then, bar ethical and disciplinary matters have taken on a civil/administrative procedure (see page 4, et seq. of this article) but with respect to the Character and Fitness process for applicants, bar entry retains some of the characteristics of application to a private club subject to personalized, group-centric opinions. IV What to Do? Proposed Rules/Provisional Admissions for Vermont I offer the following Policy Statement with Substantive and Procedural Rules. These are a draft meant to elicit dialogue and act as a start. The suggested thematic changes and additions include: 1. Provisional Entry for applicants subject to discipline in another jurisdiction or who otherwise would not have been admitted to practice in the state to which they are applying. This is practiced by 23 states for those subject to emotional, mental or substance abuse problems (36); 2. Monitoring programs for those conditionally admitted. Milieu is a significant influence with respect to preventing and predicting malfeasance; 2. Clear Burdens of Proof and Production; 3. Due Process ( adversarial administrative style hearings) with a neutral hearing referee at all stages of appealable determinations; 4. Equal access to bar membership for in-state members and out-of-state applicants on the basis of prior criminal and disciplinary history. 11 Case 5:17-cv-00075-gwc Document 11-4 Filed 05/01/17 Page 11 of 14 Policy Statement The standard of admission to the Vermont Bar is "Present Good Character". It is one which recognizes and allows evidence of rehabilitation from past disabilities. The (rebuttable) presumptive period over which "Present" character is measured is Two years. See VT AO 9; "Applicant must wait two years before reapplying for bar status if an application was rejected". This means a party may not be subject to any ethical disability for the two years prior to application. Ethical Disability means any psychiatric condition, practice of substance abuse, or criminal behavior found to be actionable under the Vermont Rules ofProfessional Conduct. The two year period may be expanded or contracted as needed to accommodate the following circumstances: Substantive Rules 1. Parties subject to discipline in another jurisdiction may apply but will not be admitted until that discipline has expired. For example, a party subject to a three year suspension who has not had any new character violations in the two years prior to application may apply but also be asked to finish his/her suspension prior to admission along with the requirement that no new ethical violations have occurred during the period of suspension. 2. All foreign judgments and orders on which VT Character and Fitness relies may be subject to recognized collateral challenges which include 1) Fraud, 2) Absence of Jurisdiction and violations of Jurisdictional Due Process/Venue, 3) Violation of Constitutional rights and Due Process in the creation of a judgment or order, 4) illegal denial of appellate review; 3. All conditions of discipline in a foreign jurisdiction must have been successfully completed prior to permission to sit for the bar in Vermont. This would include but is not limited to probationary periods, psychiatric care, substance abuse counseling and restitution. 4. Rehabilitation will be determined on a case by case basis with deference to completed discipline/rehabilitation in other jurisdictions in conjunction with a two year period without ethical violations or other certified evidence of failure concerning substance abuse or psychiatric conditions. 5. The burden of proof/production on an applicant is directly proportional to the nature of his/her offense (see parentheses, below). The committee will also consider the time lapsed since the commission of an offense, evidence of rehabilitation, evidence which disproves wrongdoing or other unjust determination and denial of rights in a court of law. 6. Vermont will use a balancing test that weighs the nature and seriousness of the offense against the evidence of the attorney's rehabilitation. For example, courts typically consider the following factors: (1) the petitioner's recognition of the wrongfulness of his conduct; (2) the length of time since the original misconduct and the suspension; (3) the seriousness of the original misconduct 12 Case 5:17-cv-00075-gwc Document 11-4 Filed 05/01/17 Page 12 of 14 (felony vs misdemeanor); ( 4) the existence of physical or mental illness or pressures that are susceptible to correction; and (5) the petitioner's intellectual competency to practice law. (In practice, the seriousness of an attorney's past misconduct would significantly affect the balancing test; the more egregious the attorney's misconduct, the further the scales tip against readmission. For example, the defendant in the Arizona case "In re King"(37) previously pled guilty to one count of attempted murder, and as a result of that conviction, the court noted that the attorney would have to make an "extraordinary showing" of evidence to prove his rehabilitation. The influence of time between an offense and application to the Bar will have a mitigating effect with respect to the gravity of the offense.) 7. Vermont will not make presumptive reference to the ABA Standards for Imposing Lawyer Sanctions. These are descriptive rather than definitive and fail to define essential terms such as "serious offense" and "serious injury" or make distinctions between low level misdemeanor violations and felony violations with jail time and fines which can be in excess oftens of thousands of dollars. 8. Vermont may make Bar admission conditional. The conditions can include and are not limited to: 1) A probationary term with conditions tailored to any risks peculiar to an applicant, 2) a right to inspect financial records on an annual, semi-annual, quarterly or ad hoc basis, 3) assignment of third party accountant to keep attorney financial records with affirmative reporting duties to the Bar, 4) attendance at specific and remedial CLE courses, 5) continuing consultation with psychiatric or substance abuse professionals for a definite period which can be renewed subsequent to hearing, 6) random drug testing, 7) practice in conjunction with a professional monitor whose name will be provided to all clients of applicant. Procedural Rules The Character and Fitness exam is subject to Constitutional Standards, Vermont case law and Supreme Court rule 17. Rule 17 is essentially the same as former SC Rule 11. Case law construing rights under Rule 11 will be applicable to proceedings under Rule 17. Since Bar matters are administrative in nature, the state administrative procedures act will apply as well as administrative standards of notice, evidence, hearings before a commissioner, burden of proof and production, and appeal. 1. Bar applicants shall be screened for ethical history prior to taking the bar exam. Data is accumulated by the NCBE and referred to a member of the VT Board ofBar Examiners or other State Bar representative. 2. Applications will be screened by the Board of Bar Examiners or an agent/committee appointed by the Board; 3. A screening agent/committee may refer ethical concerns to a panel known as Character and Fitness for administrative hearing; 4. If new ethical violations pertinent to an applicant occur after a bar examination but prior to being sworn-in, Character and Fitness shall have jurisdiction to examine these concerns; 5. The State Bar has the burden of proof and production to show an applicant does not have "good, present moral character. Its burden of proof is by "Clear and Convincing Evidence"; 13 Case 5:17-cv-00075-gwc Document 11-4 Filed 05/01/17 Page 13 of 14 6. Character and Fitness shall give written notice of the events on which it bases ethical concerns. This notice will have the equivalence of a Complaint for purposes of procedure. 7. The hearing subject matter will be limited to the contents of the written notice. The rules of Civil Procedure and Due Process shall limit amendments to notice. (See "In Re Ruffalo", 390 us 544) 8. Any hearing under Character and Fitness shall be before a neutral, third party commissioner. The State Bar will be represented by the Chair of the Character and Fitness Committee. 9. All parties shall have the right to present evidence, call witnesses, conduct cross examination and subpoena evidence in addition to all other Due Process rights . 10. Appeal shall be made directly to the Supreme Court; 11. A record shall be made of the proceedings; 12. An administrative assistant will attend any hearing. This may be an attorney for the state who is not an advocate for either side. This person may organize the hearing, schedule witnesses, take and preserve documentary and other physical evidence, call the hearing to order and terminate proceedings in conjunction with the will of all parties and commissioner. Robert Grundstein Esq. Hyde Park, VT 802-888-3 3 34/rgrunds@pshift. com 14 Case 5:17-cv-00075-gwc Document 11-4 Filed 05/01/17 Page 14 of 14 .. . United States District Court Robert Grundstein Esq. Vs. Vermont Board of Bar Examiners c/o Benjamin Battles Esq. Solicitor General Vermont Attorney General's Office 802.828.5944 benjamin. battles@vermont.gov Plaintiff Robert Grundstein Esq. 18 Griggs Road Morrisville VT 05661 802-888-3334/rgrunds@pshift.com Vermont Case No. Proposed Order Defendant Vermont Board ofBar Examiners Character and Fitness Committee c/o Benjamin Battles Esq. Solicitor GeneralV ermont Attorney Vermont Attorney General's Office benjamin. battles@vermont. gov 802.828.5944 Case 5:17-cv-00075-gwc Document 11-5 Filed 05/01/17 Page 1 of 2 . ·- This matter came before me on , 20 I 7. In response to the pleadings, briefs and other materials before this court, I ORDER that Plaintiff Grundstein is entitled to a TRO ..... etc .... and that the VT Board ofBar Examiners/Character and Fitness Committee Opinion ofFebruary I, 20I 7 shall have no enforceability in any state proceeding and Grundstein should be able to join the VT State Bar immediately and for the following reasons; 1. That the Vermont State rules for attorney admission are unconstitutional on their face and as applied against Robert Grundstein. They are vague, in some cases non-existent and inadequate to deny a party's liberty right to pursue a profession. There are not sufficient descriptions of proscribed behavior to deny an applicant bar admission. The state Board of Bar examiners Character and Fitness Committee can not only define an offense, but its penalty as well. The difference in the way a Bar Applicant and State Bar member are treated with respect to the same behavior is arbitrarily discriminatory. As they stand, the present Character and Fitness procedure violates The Fifth Amendment requirements of notice, the Fourteenth Amendment Equal Protection clause and Article IV Privileges and Immunity; 2. That the Vermont State rules for attorney admission also violate VT state law under its "Equal Punishments'' doctrine, which is essentially a state recitation ofFourteenth Amendment Equal Protection. 3. That the Character and Fitness opinion ofFebruary 1, 2017 found it "does not have reason to doubt Mr. Grundstein's honesty, ethics or truthfulness" •.• Opinion, pg. 23, EX 1; 4. That "Fitness" pertains only to Physical, Psychiatric and Substance Abuse and that Mr. Grundstein does not suffer from physical, psychiatric or substance abuse problems. I also find "Fitness" was not a noticed part of the Character and Fitness interview and the subject matter of the hearing was not amended to include it Bar hearings cannot be amended at hearing, pursuant to "In Re Ruffalo", 390 US 544. Character and Fitness may not include a secret contemplation and distortion of"Fitness" AFTER a hearing is concluded. 5. That the Character and Fitness Committee cannot conduct its affairs as both the "prosecutor" and arbiter of is proceedings and that future attorney Character and Fitness hearings be conducted with an independent hearing officer or referee; 6. That Grundstein should be allowed to appear before a Vermont Superior Court and swear in to the Bar. 7. That Vermont should conduct proceedings in conformity with this Order and take notice of the activity pursuant to Vermont House Bill443/Chair Maida Freeman, related to attorney admissions. Hon. J. Case 5:17-cv-00075-gwc Document 11-5 Filed 05/01/17 Page 2 of 2 JS 44 (Re•· i 1/1:") CIVIL COVER SHEET The JS 44 civil cover sheet and the information c=tained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law. except as provided by local rules of court. This form. approved by the Judicial Conference of the United States in Sept<.-mbcr 1974. is required for the us" of the Cl<.-rk of Court for the purpose of initiating the civil docket sheet (SEE LYSTIU7CTIONS OY _._\£YT PliGE OF THIS P'OR.\i) l. (a) PLAINTIFFS Robert Grundstein Esq DEFENDANTS Vermont Board of Bar Examiners (b) County of Residence of First Listed Plaintiff Lamoille County of Residence of First Listed Defend.wt Washingt()~·-·------ !EXCEPT IN U.S. PLJLV11FF CASESj (C) Attorneys (Firm ~Vame. Address, mu:l Telephone _._Yumber) Robert Gruni:lstein 18 Griggs Road Morrisville VT 05661/802-888-3334 (TY U.S. PLJINTJFFCASESO,\TX) '\OTE· l'-i LA\'D CO;-.;DE'A;>-iAriOoc CASES, cSE THE LOCATIO'\ OF THE TRACT OF LA;~l) l);v'OL VED. Attorneys r:rKno-.vn) Benjamfn Battles Solicitor General 1 09 State Street Montpelier VT 05606 H. BASIS OF JURISDICTION rP!acean ·x··;noneBoxOnly) ill. CITIZENSHIP OF PRINCIPAL PARTIESrPiacean 'X"'inOneBoxfarPlaimiff ~ 1 l~_S Gc;n·mmcnt Plaintiff ~ J Federal Question (For Diversity Cases Onlyj l'TF DEF :::J 1 and One Box for Defandant} PIF DEI' :"]. 2 L_S_ Government Dei'endant {C.S. Gm.·en;ment Xot a Par{?) :J 4 Diversity (Indicate C7ti:::enship (~f Parti~s in item liD IV. NATURE OF SUIT (Place an 'T" in One Box Onlri "J 1 ](l]nsuroncc :"J 120 Marine I 1 Yl \1iller Act i 1-fO :'-Jcgotiable Instruinent ;:J 150 Rccove1y of Overpaj-mcnt & Enforcernont of Judgment ,, 1."1 :dedicnre Act "J. \';~ ofDctimlted PERSO:'\"ALI:-.'Jt:RY 0 310Alrplane ::J 315 Atrplane Prodctct Liability :"J 320 Assault. Libel & Siander :::J 330 Federal Employers~ Liability PERSONAL ~Jl'RY :"J 365 Personal L-,jrny - Product Liability CJ 36 7 Health Care' Pharmaceutical PcrsoGal Injury Prodlict Liability CiTizen of This ~'tate Citiz.en of Another State Citizen or Subject of a Forel Cmmtrv :, 625 Drug Related SetZ'ure ofPrcpaty 21 l'SC 881 0 690 Other 0 3 Incorporated or Principal Plh;:;e of Business In This State :J .:.. Incorporated and Principal Ph1c.c ofBusines:'i In Another State ::J 3 Foreign N·ation 0 4 :"J 6 0 42::Appeal :g t 0SC 15S ::J 423 \"I.:--ith_dravi;H 1 :J 375 False Clmms Act ::J 376 Qui Tam (31 L-sc 3729(a)) :s esc 157 ::::!6 '""'=========='=i ::J 400 State Reapporti..:mmeEt /:PilOl'ER"J'Y'ltlGIITS' .... CJ 410 Antitrust :J 82U Copyrights :J 430 Bank.s and Banking 0 830 Patent ::J 450 Commerce 0 340 T radcmark :J 460 Deportation (E:~cludc~ Vctl'ran~.) ~"] 153 Recovery of O.'erpayment ::J 340 ~v1arine 0 345 :VIarinc Product Liability :1 36R Asb~tos Personal lnJur; Product LiatrJity :J 470 Racketeer Influenced am.l ~~::·~··=-=· ~.·Lb•liA~~=;~=:S::t·~>~··.~so~C~'fAI'~·~· ~~~··s i~!PJ\C~··~·i~R1·lT~Y[c :. :::t Couupt Organiz2ti0m PERSO.'i"AL PROPERTY :::J 710 Fair Lat.or Standards CJ 861 HL\ (1395!1) 'J 480 Consumer Credit of Veteran's Benefits :'J 160 Stockholders' Suitfl; .:J ] YO Other ContTact (J 1 ')) Contract Product Liahility (J 1 ~JG Franchise ::J 350 ~.J0tor Vehicle ::J 370 Other Fraud Act 0 355 ?'Aotor Yeh1cle :J 371 Truth in Lending 0 720 Labor/7 .. --fanag~ment l-Toduct Liahjl.ity =:J 3SO Other Personal Relations :J 360 Other Personal Property Damage ;J 740 Railway Lab0r Act Injury D 385 Property Damage 0 7 51 F am i.ly and Niedical ::1 362 P~rscnal I~ury- Product Liabihty Leave Act Nk'dical ~falpracticc , 790 Other Labor L itxg:1tion ~·::z :':'· .]Ju~E~R~T(ix[' I:I:k:"1at1ltes unless dn-ersiiri: 42 USC 1983 and 28 usc 220 F2202 ~ · - VI. CAUSE OF ACTION 1-:B:-n-:-.e-:f-:d:-es-c-:ri.,.pt-:-io_n_o_t.,.,c-.a-us_c_: __ ...:;.:..;._;:_ ________________________________ _ Unconstitutional state bar admission practices VII. REQUESTED IN COMPLAINT: :J CHECK IF THIS IS A CLASS ACTIO:'\ DE:\-L-\.ND $ FNDER RCLE 23. F.R.CY.P. 0.00 VHL RELATED CASE(S) . . .. . JF A NY -;·- /2. /;? rSee mstmctwm): + "' /(I(/ ll'c:. ~ '-- UJ\TE SIG"ATCRE OF ATTOR~~fEy OF RECORD CHECK YES only if demanded in c0mplaint: JURY DE~L,\:\D: :J Yes 0 1\;o DOCKET~TC>.IDER :'Zo( {- c)! ) April24. 2017 S/s Robert. Gnmdstein E$q. J.UROFF!CF:USEO;';LY '-:110 RECETPT #4" cg 1 ()\p.;_'vlOl'iT too,; JUDGE \D \3 Case 5:17-cv-00075-gwc Document 11-6 Filed 05/01/17 Page 1 of 1