SANDER v. STATE BARRespondents’ Reply to Answer to Petition for ReviewCal.August 15, 2011S$194951 Sa, Lea, ° a os nite, BY Alyy. Fy, Af IN THE SUPREME COURT OF THE STATE OF CAL¥FORNIX gy, * ' 4 : é & .a toe1thy fey. - RICHARD SANDER,JOE HICKS, Puy | CALIFORNIA FIRST AMENDMENTCOALITION ™ Plaintiffs and Appellants, Vv. THE STATE BAR OF CALIFORNIA and the BOARD OF GOVERNORS OF THE STATE BAR OF CALIFORNIA, Defendants and Respondents. After a Published Decision by the Court of Appeal First Appellate District, Division Three Case No. A128647, Reversing a Judgment Entered by the Superior Court for the County of San Francisco, Case No. CPF-08-508880, The Honorable Curtis E.A. Karnow presiding REPLY IN SUPPORT OF PETITION FOR REVIEW STARR BABCOCK(63473) JAMES M. WAGSTAFFE(95535) LAWRENCEC. YEE (84208) MICHAEL VON LOEWENFELDT(178665) RACHEL S. GRUNBERG(197080) KERR & WAGSTAFFE LLP OFFICE OF GENERAL COUNSEL 100 Spear Street, Suite 1800 THE STATE BAR OF CALIFORNIA San Francisco, CA 94105 180 HowardStreet (415) 371-8500 Telephone San Francisco, CA 94105-1639 (415) 371-0500 Facsimile (415) 538-2000 Telephone (415) 538-2321 Facsimile Attorneysfor Defendants and Respondents THE STATE BAR OF CALIFORNIA and the BOARD OF GOVERNORS OF THE STATE BAR OF CALIFORNIA S194951 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA RICHARD SANDER,JOE HICKS, CALIFORNIA FIRST AMENDMENT COALITION Plaintiffs and Appellants, V. THE STATE BAR OF CALIFORNIAand the BOARD OF GOVERNORS OF THE STATE BAR OF CALIFORNIA, Defendants and Respondents. After a Published Decision by the Court of Appeal First Appellate District, Division Three Case No. A128647, Reversing a Judgment Entered by the Superior Court for the County of San Francisco, Case No. CPF-08-508880, The Honorable Curtis E.A. Karnow presiding REPLY IN SUPPORT OF PETITION FOR REVIEW STARR BABCOCK(63473) JAMES M. WAGSTAFFE(95535) LAWRENCEC. YEE (84208) MICHAEL VON LOEWENFELDT(178665) RACHEL S. GRUNBERG(197080) KERR & WAGSTAFFE LLP OFFICE OF GENERAL COUNSEL 100 SpearStreet, Suite 1800 THE STATE BAR OF CALIFORNIA San Francisco, CA 94105 180 Howard Street (415) 371-8500 Telephone San Francisco, CA 94105-1639 (415) 371-0500 Facsimile (415) 538-2000 Telephone (415) 538-2321 Facsimile Attorneysfor Defendants and Respondents THE STATE BAR OF CALIFORNIA and the BOARD OF GOVERNORS OF THE STATE BAR OF CALIFORNIA TABLE OF CONTENTS I. INTRODUCTIONoccceseeeseceeceseeseseesessesesseseeseesssesseeeesseessenees 1 Il. APPELLANTS PROVIDE NO BASIS FOR DENYING REVIEW OF THE COURT OF APPEALS?’DECISION ooo. ecccceccesceesessesseeeeseseeeeseseseeesassaeesseceeens 3 A. This Court’s Decision Not To Hear Appellants’ Original Petition Is Not Law of The Case Regarding This Court’s Jurisdiction...........ccccccsccssessesseeeeeees 3 B. The Petition Presents Several Important Questions Of Law That Warrant Review ............c0ccceesseee 6 C. The Justices Of This Court Are Not Disqualified From Hearing And Deciding The Merits Of The Petition .......cccccccccccccscssssscccecccccecssscececsensnccvescecs 7 TIT. CONCLUSIONuccesceeeesssteeeseenesseseeeseesesseeeesesseessesaeeeeeses 10 TABLE OF AUTHORITIES Cases Bester v. Louisiana Supreme Court Committee on Bar Admissions (La. 2001) 779 S0.2d 715. eccccscesccesseseescessesesseescescseceecssesecseecseesnes 4 Briggs v. Resolution Remedies (2008) 168 Cal-App.4th 1395 occcccsscscscsessecssssescssesssssessecsseseees 4 Consolidated Theaters, Inc. v. Theatrical Stage Employees Union (1968) 69 Cal.2d 713 oe eeccccscsesseseesseseeseesssesessessessesessesssnecsessseeeess 4 In re Attorney Discipline System (1998) 19 Cal4th 582 oecccccceecssessesecsecssesecsecssesesseecsssscsssesseeanes 7 In re Rose (2000) 22 Cal.4th 430 woecc ccescsssscsessssceesseseeseessescsesseesusecasesnerssecs 5 Johnson v. State Bar (1935) 4 Cal.2d 744 oeccccccctecssssseessssessesssesesseseecseecseeccsesseeeesss 7,9 Kowis v. Howard (1992) 3 Cal4th 888 oo.cccsesscssscssesscsceeesesseesecseseeessecsessseseccaneass 5 Lebbos v. State Bar (1991) 53 Cal.3d 37 voiceeeescssccsssssessecesessseessesesssceecrsesessesssesstsesecseass 7 Morohoshi v. Pacific Home (2004) 34 Cal.4th 482occccssssssssesescsesseesecescseesseeeessesseatecsees 4 Olson v. Cory (1980) 27 Cal. 3d 532 oieeeecceeeseeeseeseescssseeessescessesseseeeesesesesesseeees 9 People v. Medina (1972) 6 Cal.3d 484 oooccccceccsseessesecseseesesesseeeesesseeseeecsssessseessaasas 5 Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425 oo cccccccccstecssseesesecssssesssscesececeseeensesseecetes 5,6 Other Authorities Code of Judicial Ethics, Canon 3(E)(5) (d).....ccccscccessesecssessessessecseesesseesecenss 8 il I. INTRODUCTION Plaintiffs and Appellants Richard Sander, Joe Hicks, and the California First Amendment Coalition (hereinafter “Appellants”) fail to make any substantive arguments in their Answerandinstead attempt to deflect the Court’s attention by making series of meritless procedural contentions anchored by the position that this Court is biased and must recuse itself because of its inherent authority and institutional oversight over the State Bar in admission matters. This argument contradicts Appellants’ position below that the Supreme Court and the State Bar are not intertwined enoughsuch that the Bar should enjoy the established limitations on access to public records accorded to the judiciary. Appellants’ shifting views underscore the confusion surrounding the relationship between the State Bar and the Supreme Court, as perpetuated by the Court of Appeal’s decision misconstruing the Bar’s status as a judicial branch entity, and only serve to highlight the need for this Court to grant review. First, Appellants’ argue that this Court’s denial of their earlier petition is “law of the case” even though(1) the prior petition was an original proceeding; (2) neither full briefing nor oral argument were allowed and no written opinion wasissued; and (3) the question of subject matter jurisdiction is always a live issue. There is no procedural impedimentto this Court’s consideration of eitherits jurisdiction or the merits ofthis case. Second, Appellants argue ipse dixit that this case presents no important question for the Court to decide, but merely extendsexisting law. They are unable or unwilling, however, to respond to the substantial showingin the State Bar’s Petition for Review that the Court ofAppeal misapplied all pre-existing case law, creating a new “right” of access to judicial branch records that has not previously been applied to any other arm of government. Third, and finally, Appellants argue that this Court is disqualified from reviewing the Court of Appeal’s decision because this case involves the State Bar, which is this Court’s administrative arm. This argumentis fatally flawed andin fact furthers the State Bar’s position — the State Baris this Court’s adjunct in matters of attorney admissions, and this Court’s exclusive and plenary powerover the admissionsprocess is precisely why this Court, and only this Court, is the proper entity to determine which admissions records are subject to public review. If Appellants’ disqualification argument (which did not stop them from earlier petitioning the Court for the samerelief) was valid, it would apply in every case where the State Bar wasa party, and would prevent the Court from exercisingits constitutional role of overseeing the State Bar and the admission and discipline of attorneys in this State. There is simply no jurisdictional, prudential, or ethical reason why this Court should not grant the Petition for Review. As discussed in the Petition and not rebutted in Appellants’ Opposition, this case presents numerous important questions central to the State Bar’s role in the admissions process controlled by this Court, and this Court is uniquely empowered to control access to attorney admissions records collected on its behalf. Il. APPELLANTS PROVIDE NO BASIS FOR DENYING REVIEW OF THE COURT OF APPEALS’ DECISION A. THIS COURT’S DECISION NOT TO HEAR APPELLANTS’ ORIGINAL PETITION IS NOT LAW OF THE CASE REGARDING THIS COURT’S JURISDICTION Given this Court’s exclusive jurisdiction over the attorney admissions process and the State Bar’ssole role in that process as this Court’s administrative arm,it is manifest that issues regarding public access to admissions records should be controlled by this Court, not the myriad lower courts. Appellants provide no argumentin their opposition as to why the records request in this case does not fall within this Court’s original and exclusive jurisdiction (as they, themselves, argued in 2008). Instead, Appellants assert that this Court cannot consider whether it has exclusive jurisdiction of this matter under the “law of the case” doctrine. Appellants’ argumentfails at numerouslevels. First, this is a question of the subject matter jurisdiction ofthis Court. “Jurisdictional issues are never waived and mayberaised at any time.” (Briggs v. Resolution Remedies (2008) 168 Cal.App.4th 1395, 1400 [86 Cal.Rptr.3d 396] [citing Consolidated Theaters, Inc. v. Theatrical Stage Employees Union (1968) 69 Cal.2d 713, 721 & n.8 [73 Cal.Rptr. 213]].) Indeed, this Court has the inherent, sovereign power as a co-equal branch of California government to determine which records of the bar admissions process are open to public review. (See Bester v. Louisiana Supreme Court Committee on Bar Admissions (La. 2001) 779 So.2d 715, 721-22 [Bar admissionsrecords are records of the state supreme court and onlythat court has inherent, sovereign authority to determine whether such records are subject to public review].) Second, the law of the case doctrine applies to prior appellate review of a trial court decision. “The doctrine of ‘law of the case’ deals with the effect of thefirst appellate decision on the subsequent retrial or appeal.” (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491 [20 Cal.Rptr.3d 890] [emphasisin original, citation omitted].) The Court’s prior summary denial of Appellants’ Petition was not an appeal — it was an original proceedingin this Court. Essentially, the Court declined to hear the matter in the first instance. It did not review anything; only nowis it being asked to review this issue. There has beennoretrial or second appeal. Appellants do not cite any authority ever applying the “law of the case” doctrineto an original proceeding in this Court, much less onethat was summarily denied. This is the first appeal taken from a trial court proceeding, and the Court’s prior decision not to hear Appellants’ petition simply does notfall within the “law of the case” doctrine. Third, even if the “law of the case” doctrine could be extended beyondthe realm of multiple appeals for which it was created, it would not apply here. The doctrine does not apply to summary decisions, but only to prior decisions where there wasfull briefing, an opportunity for oral argument, and a written opinion. (Kowis v. Howard (1992) 3 Cal.4th 888, 894-95 [12 Cal.Rptr.2d 728]; see People v. Medina (1972) 6 Cal.3d 484, 489-90 [99 Cal.Rptr. 630].) None of these were present during this Court’s summary denial ofthe petition in case number $165765. | Fourth, and finally, “law of the case” is a matter of “procedure and not jurisdiction.” (Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434-35 [212 Cal.Rptr. 466].) It is “not inflexible,” does not apply whereit (See and compare In re Rose (2000) 22 Cal.4th 430, 444, holding that “if a petition for writ of review in this [C]ourt is the exclusive means of obtaining review ofa quasi-judicial decision, [the Court’s] summary denial of such petition is deemeda final judicial determination on the merits.” [Italics added].) In this case, this Court’s denial of Appellants’ initial petition was “without prejudice to refile in an appropriate court”and, moreover, did not involve review of the determination of a quasi-judicial proceeding. would be “unjust,” and does not apply if the Court determinesthat a reversal is warranted for other reasons in any event. (/d.) Asdiscussedin the Petition for Review, the Court of Appeal’s misunderstanding of the role of the State Bar andits relationship to this Court underscoresthe need for this Court to exercise its sole and exclusive jurisdiction over the admissions process to determine which admissions records, if any, are subject to public review, and under whatcircumstances. Appellants’ Answerprovides no reasonedbasis for this Court to decline to exercise that jurisdiction. B. THE PETITION PRESENTS SEVERAL IMPORTANT QUESTIONS OF LAW THAT WARRANT REVIEW The Petition for Review explains in 18 pages of detailed argument how the Court of Appeal fundamentally misunderstood and misapplied the commonlaw right of access to public records by (1) finding that the State Baris “not a court” and not subject to the well established limits on access to records held by judicial branch entities, (2) finding that the admissions databaseis a public record subject to presumptive public access without applying any existing commonlaw standard, or even a novel one, to reach that conclusion,and (3) subjecting the State Bar to a broad, undefined right of access unknowntothe rest of government. (Petition pp. 15-33 [emphasis added].) Appellants do not respondto any of this detailed argument. Instead, they merely argue in a cursory and generic fashion that the Court of Appeal’s decision “extends” prior precedents, and that “in any event, public scrutiny of other government agencies ... has not impaired their operation.” Appellants’ inability to defend the numerous and substantial errors in the Court ofAppeals’ decision highlights the need for review by this Court. C. THE JUSTICES OF THIS COURT ARE NOT DISQUALIFIED FROM HEARING AND DECIDING THE MERITS OF THE PETITION Appellants imprudently argue thatall of the Justices of this Court are disqualified from adjudicating a case involving the State Bar because of this Court’s relationship to the State Bar. It is precisely because the State Baracts as an administrative arm of this Court, subject to this Court’s exclusive and plenary control, that this Court is the proper body to determine issues regarding access to admissionsrecords. This is not a novel question. Since the early inception of the Bar, disgruntled attorneys subject to discipline have tried unsuccessfully to disqualify the Court from reviewing State Bar matters. However, this Court has consistently refused to recuseitself from cases involving the State Bar. (/n re Attorney Discipline System (1998) 19 Cal.4th 582, 592 fn.5 [79 Cal.Rptr.2d 836]; Lebbos v. State Bar (1991) 53 Cal.3d 37, 41, fn. 1 (278 Cal.Rptr. 845]; Johnson v. State Bar (1935) 4 Cal.2d 744, 759-60 [52 P.3d 928].) The Judicial Canonscited by Appellants do not require otherwise. Appellants’ argumentthat each Justice is a “director, advisor, or other active participant”in the affairs of the State Bar ignores most of the words of Canon 3(E)(5)(d), which is concerned withfinancial entanglements: (5) Disqualification of an appellate justice is also required in the following instances: (d) The appellate justice... has a financial interest or is a fiduciary who hasa financial interest in the proceeding,or is a director, advisor, or other active participantin the affairs of a party. A financial interest is defined as ownership of more than a | percent legal or equitable interest in a party, or a legal or equitable interestin a party of a fair market value exceeding one thousandfive hundred dollars. Ownership in a mutual or common investment fund that holds securities does not itself constitute a financial interest; holding office in an educational, religious, charitable, fraternal or civic organization does not confer a financial interest in the organization’s securities; and a proprietary interest of a policyholder in a mutual insurance company or mutual savings association or similar interestis not a financial interest unless the outcomeofthe proceeding could substantially affect the value ofthe interest. ... (Code of Judicial Ethics, Canon 3(E)(5)(d).) The Justices of this Court are not “directors, advisors, or other active participants” of the State Bar within the meaning ofthis rule.” Indeed, Appellants’ argument would apply to any case where the State Bar was a party. It would create a rule that made it impossible for this 2 Appellants’ suggestion that a reasonable person would doubt the Justices’ ability to be impartial is also wholly without merit. There is nothing about this case that is outside of the Court’s ordinaryrolein overseeing attorney admissions and the State Bar’s conduct and policies with respect to such oversight. Court to review the attorney admission and discipline cases that fall within its exclusive jurisdiction, as well as any other case against the State Bar. The Court has never recuseditself from proceedings involving the State Bar simply because the Baracts as this Court’s administrative arm. Finally, even if disqualification were otherwise theoretically “required,” whichit clearly is not, it cannot occur where the disqualification would mean that any Court ofAppeals’ decision involving the State Baris not subject to review by this Court, or that this Court could not exerciseits plenary control over the State Bar. One cannot disqualify the entire senior level of the judiciary: It might be well to add, however,that the discharge of the exclusive jurisdiction ofthis court cannot be prevented by the disqualification of all or a majority of its members. We read in 33 CorpusJuris 989, as follows: ‘Theruleas to the disqualification ofjudges must yield to the demands of necesity [sic]. When disqualification, if permitted to prevail, destroys the only tribunal in which relief may be sought and thus effectually bars the doors ofjustice, the disqualified Judge is boundto hear and decidethe case.’ (Johnsonv. State Bar, supra, 4 Cal.2d at 760; see Olson v. Cory (1980) 27 Cal. 3d 532 [178 Cal.Rptr. 568].) Appellants had no objection to the Court considering this matter whenthey presentedtheirinitial petition to it in 2008. Their newfound belief that this Court is biased in State Bar matters is entirely nonsensical. This Court can, and regularly does hear cases involving the State Bar and should exercise its authority to hear the instance case as well. Il. CONCLUSION Appellants present no reason for this Court to deny review and, indeed, their inability to substantively rebut the points raised in the Petition highlights the need for review. As discussed in the Petition, the records soughtin this action, as with all State Bar records related to the admission of attorneys, belong to this Court. Underits inherent and plenary authority, it is this Court that should determine whetherthe State Bar’s admissions database, and similar admissions records held by the State Barin its capacity as this Court’s administrative arm, are subject to a presumptive public right of access. DATED: August 15, 2011 Respectfully submitted, KERR & WAGSTAFFE LLP By ~~ (+ Michael von Loewenfeldt Attorneysfor Respondents THE STATE BAR OF CALIFORNIA and THE BOARD OF GOVERNORS OF THE STATE BAR OF CALIFORNIA 750272 10 CERTIFICATION OF COMPLIANCE WITH WORDLIMIT Pursuant to Rules of Court, rules 8.204(c)(1) and 8.504(d)(1),I certify that this Brief is proportionately spaced, has a typeface of 13-point, proportionally-spaced font, and contains 2,329 words includingall footnotes but excludingthe table of contents, table of authorities, and signatures, as counted by the computer program usedto generate this brief. DATED: August 15, 2011 KERR & WAGSTAFFE LLP MICHAEL VON LOEWENFELDT Attorneysfor Respondents THE STATE BAR OF CALIFORNIA and THE BOARD OF GOVERNORS OF THE STATE BAR OF CALIFORNIA 11 CERTIFICATE OF SERVICE I, Andrew Hanna, declare that I am a resident of the State of California, over the age of eighteen years, and nota party to the within action. My business address is Kerr & Wagstaffe LLP, 100 Spear Street, Suite 1800, San Francisco, California 94105. On August 15, 2011, I served the following document(s): REPLY IN SUPPORT OF PETITION FOR REVIEW on the parties listed below as follows: James M. Chadwick, Esq. Guylen R. Cummins, Esq. Evgenia N. Fkiaras, Esq. SHEPPARD MULLIN RICHTER & HAMPTON LLP Four Embarcadero Center, 17th Floor San Francisco, CA 94111-4109 Attorneys for Appellant California First Amendment Coalition Gary L Bostwick, Esq. Jean-Paul Jassy, Esq. BOSTWICK & JASSY LLP 12400 Wilshire Blvd., Suite 400 Los Angeles, CA 90025 Attorneys for Appellants Richard Sander and Joe Hicks Judy Alexander, Esq. LAW OFFICE OF JUDY ALEXANDER 2302 Bobcat Trail Soquel, CA 95073 Attorney for Amici Curiae Vikram Amar, Jane Yakowitz, and Mark Grady Duffy Carolan, Esq. John Eastburg, Esq. DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street Suite 800 San Francisco, CA 94111 Attorneys for Amici Curiae News Media Organizations Sharon L. Brown, Esq. Joshua P. Thompson,Esq. PACIFIC LEGAL FOUNDATION 3900 Lennane Drive, Ste. 200 Sacramento, CA 95834 Attorney for Amicus Curiae Pacific Legal Foundation The Honorable Curtis Karnow SAN FRANCISCO SUPERIOR COURT 400 McAllister Street San Francisco, CA 94102 John Eastman, Esq. Anthony T. Caso, Esq. Karen Lugo, Esq. David Llewellyn, Esq. CENTER FOR CONSTITUTIONAL JURISPRUDENCE c/o Chapam Univ. Sch. OfLaw One University Drive Orange, CA 92886 Attorneys for Amici Curiae Gerald Reynolds, Todd Gaziano, Gail Heriot, Peter Kirsanow, and Ashley Taylor, Jr. Clerk of the Court, Division Three CALIFORNIA COURT OF APPEALS 350 McAllister Street San Francisco, CA 94102 Eva Paterson: Fabian Renteria EQUAL JUSTICE SOCIETY 260 California Street, Suite 700 San Francisco, CA 94111 Attorneys for Amici Curiae Equal Justice Society Byfirst class mail by placing a true copy thereof in a sealed envelope with postage thereonfully prepaid and placing the envelopein the firm's daily mail processing center for mailing in the United States mail at San Francisco, California. I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. Executed on August 15, 2011, at San Francisco, California. ~~ Andrew Hanna