9 8 09 nvd 280 doc 6 petition for writ torres v sbn

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f-' F 'r ' . . .:FELIX TORRES, JR.l P O BOX 3325 2gg'1 gg? - g go ?: 22AMA POINT,CA 926292 TELEPHONE: 949-973-2431 l.@ 7 r l. 2mail: boalt77@ vahoo.com . : . .. 7 . .. , 7 . ..3

7 : -- - . .- ..- - . . 4 'f'4 IN PRO PER5 UNITED STATES COURT OF APPEALS6 FOR THE 9TH CIRCUIT789 ) D c case No. 09-Cv-00280n re the Matter of ) Rujtlwut,l10 )LIX TORRES

,JR., ) RESPONDENT'S CASE NO:11 )) W RIT OF M ANDAM USespondent,2 )) COM PLAINT FILED 2/09/0913 ))14 ) ''Tuls xorrlcE olz) APPEAL/PETITION IS FILED15 ) SUBJECT TOj) PRE.FILING REVIEW ORDER No.6 l Parties in lnterest z (48.80142''a )

17 )LIX TORRES,JR. )I 8 )laintiff, )l 9 )VS . )20 )EVADA supltEMscoult'r, TI4E )21 jERK OF THE SUPREM E COURT

j22 F NEV ADA lndividually and inis/her official capacity; STATE BAR23 F NEVADA BOARD OF

24 OVENORS, individually and in theirfficial capacities; THE BOARD OF25 XAM INERS OF THE BAR OF

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Case 2:09-cv-00280-GMN-LRL Document 6 Filed 09/08/09 Page 1 of 14

FELIX TORRES, JR.I P.O. BOX 3325DANA POINT, CA 926292 TELEPHONE: 949-973-2431Email: [email protected] IN PRO PER5

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6UNITED STATES COURT OF APPEALS

FOR THE 9TH CIRCUIT789 D.C. Case No. 09-CV-00280

n re the Matter of RCJ(LRL)10 ELIX TORRES, JR., RESPONDENT S CASE NO:Respondent, WRIT OF MANDAMUS12 COMPLAINT FILED 2 09 09

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14 THIS NOTICE OFAPPEALIPETITION IS FILED15SUBJECT TOPRE-FILING REVIEW ORDER No16 eal Parties in Interest 08-80142

17 ELIX TORRES, JR.18 Plaintiff,19 vs20

EV ADA SUPREME COURT, THE21LERK OF THE SUPREME COURT22 F NEVADA Individually and in

23 islher official capacity; STATE BARF NEVADA BOARD OF24 OVENORS, individually and in theirfficial capacities; THE BOARD OF25 XAMINERS OF THE BAR OF

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EVADA individually and in theirl fficial capacities, Patrice Eichm an2 ndividually and in her official capacity,s Director of Adm issions of the State3 f Nevada and DOES 110r O ,nclusive.

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INTRODUCTION9 1. Responded submitted his complain and alleged that he would be subjected or10 would be subjected to intentional and negligent intliction of constitutionalI I deprivation of civil rights.12I 3 2. Respondent contends that the actions of defkndants herein alleged violates his14 constitutional right to travel rovided by the 5tl amendment (ie. his name has15 been stricken from the rolls of attorneys licensed to practice in California16

(disbarred) and thus is not entitled to sit for the NEVADA bar exam and become a17I a member of that Bar and practice in that state).19 3. Plaintiff furthers contends defendants violate his Eighth Amendment right2() against excessive punishment e.g. Rule 51 prohibiting Plaintiff from practicing law21

in its state based on a Califonzia Bar disbarment determination and not based on its223 own determination;24 4. Plaintiff furthermore contends that NEVADA SUPREM E COURT RULES 5 125 constitutes a violations of the privileges and imm unities clause prohibited by the

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EV ADA individually and in theirfficial capacities; Patrice Eichman2 .ndividually and in her official capacity,s Director of Admissions of the State3 arofNevada and DOES 1-10,4 nelusive.5 Defendants67

INTRODU TION

9 1 Responded submitted his complain and alleged that he would be subjected or1 would be subjected to intentional and negligent infliction of constitutional

deprivation of civil rights.12

13 2 Respondent contends that the actions of defendants herein alleged violates his14 constitutional right to travel provided by the 5th amendment (i.e. his name has15

been stricken from the rolls of attorneys licensed to practice in California1617

(disbarred) and thus is not entitled to sit for the NEVADA bar exam and become a18 member of that Bar and practice in that state).9 3 Plaintiff furthers contends defendants violate his Eighth Amendment right

20 against excessive punishment e.g. Rule 51 prohibiting Plaintiff from practicing law21

22 in its state based on a California Bar disbarment determination and not based on its23 own determination;24 4 Plaintiff furthermore contends that NEVADA SUPREME COURT RULES 5125 constitutes a violations of the privileges and immunities elause prohibited by the

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Fifth Amendment was written and applied (or not applied) pursuant to a designed2 to provide other states within the Union to have a defacto decision on whether or3 itizen can become a member of the NEVADA Bar',ot a c4 5, Plaintiff alleges that NEVADA SUPREM E COURT RULES 49 50 violates5

the privileges and imm unities clause in addition to the equal protection andth - -7 substantive due process of the 14 Amendment because they wele wlitten and

8 applied (or not applied) pursuant to a designed to prohibit the ability to make a9

living in that defendants are accused of intentional interference with a contractual10dealings in business em ployment relationship between plaintiff and potentiall

12 employers e.g. in the field of Nevada law practice i,e. providing legal services.1314 6. Nevada Supreme Court Rule 49. Board of governors of state bar to govern15 admission to practice law; fces; board of bar exam iners.1617 Board of bar exam iners. W ith the approval of the supreme court,the board of18 bar exam iners,in consultation with the board of governors of the state bar, shall19 have the power to fix and determine the qualifications for admission to practice20

law in this state, and shall have the power to fix and collect fees from all applicants122 for admission to practice law in this state, which fees shall be paid into the treasury23 of the state bar.2425

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Fifth Amendment was written and applied or not applied) pursuant to a designedto provide other states within the Union to have a defacto decision on whether or

not a citizen can become a member of the NEV ADA Bar;5 Plaintiff alleges that NEVADA SUPREME COURT RULES 49 50 violatesthe privileges and immunities clause in addition to the equal protection andsubstantive due process of the 14th Amendment because they were written andapplied or not applied) pursuant to a designed to prohibit the ability to make aliving in that defendants are accused of intentional interference with a contractualdealings in business employment relationship between plaintiff and potentialemployers e.g. in the field of Nevada law practice i.e. providing legal services.

6 Nevada Supreme Court Rule 49. oard of governors of state bar to governadmission to practice law; fees; board of bar examiners.

oard of bar examiners. With the approval of the supreme court, the board ofbar examiners, in consultation with the board of governors of the state bar, shallhave the power to fix and determine fhe qualifications for admission to practicelaw in this state, and shall have the power to fix and collect fees from all applicantsfor admission to practice law in this state, which fees shall be paid into the treasuryof the state bar.

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Com m ittee on moral character and fitness; duties and com position. Thel2 committee on moral character and fitness is a subcommittee of the board of bar3 iners and has a1l those powers and duties delegated under the supreme courtxam ,4 rules to the board of bar examiners relating to the conduct of investigations and5

hearings, and the subm ission of reports and recommendations to the supreme court7 respecting the ethical, moral and psychological fitness of applicants tbr admission8 wo practice law in this state. The com m ittee on moral character and titness shall be9

composed of nine members who are active members of the state bar, and up to four1 )lay mem bers who are professionals with expertise in fields that are germane to theI

12 determination of character and fitness issues confronted by the committee. Five ofI 3 the attorney members shall be appointed by the supreme court. and four of thel 4

attorney members shall be appointed by the board of governors. The board of1516 governors shall also appoint the lay members of the committee. The supreme court17 shall appoint one of the attorney mem bers to chair the com mittee.1819 For those applicants whose applications reflect conduct or information wanunting20 further inquiry,but not necessarily warranting a formal hearing, the chair and the2 1

director of admissions may condtlct an informal interview in an attempt to counsel2zan applicant or to resolve a matter informally. lf the m atter is not resolved to the3

24 satisfaction of the chair, a formal hearing may be held.25

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Committee on moral character and fitness; duties and composition Thecommittee on moral character and fitness is a subcommittee of the board of barexaminers and has all those powers and duties delegated under the supreme courtrules to the board of bar examiners relating to the conduct of investigations andhearings and the submission of reports and recommendations to the supreme courtrespecting the ethical moral and psychological fitness of applicants for admissionto practice law in this state. The committee on moral character and fitness shall becomposed of nine members who are active members of the state bar and up to fourlay members who are professionals with expertise in fields that are germane to thedetermination of character and fitness issues confronted by the committee. Five ofthe attorney members shall be appointed by the supreme court and four of theattorney members shall be appointed by the board of governors. The board ofgovernors shall also appoint the lay members of the committee. The supreme courtshall appoint one of the attorney members to chair the committee.

For those applicants whose applications reflect conduct or information warrantingfurther inquiry but not necessarily warranting a formal hearing the chair and thedirector of admissions may conduct an informal interview in an attempt to counselan applicant or to resolve a matter informally. f the matter is not resolved to thesatisfaction of the chair a formal hearing may be held.

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D irector of admissions. The board of governors shall appoint a director ofl2 adm issions, and as many assistants as are necessary to adm inister the adm issions3 d bar exam ination.The appointment of the admissions director shall berocess an4 m ade only after consultation with the board of bar examiners. The admissions5

director shall have the responsibility to adm inister the bar exalnination, to carry otlt7 a11 the specific duties of the admissions director as hereinafter provided in these8 rules and shall serve as secretary to the board of bar exam iners,910 Adm inistrative policies, procedures and guidelines for adm ission to practicel l law. The board of bar exam iners, tlle clerk of the suprem e court and the12

admissions director shalls as approved by the stlpreme court, jointly define, adopt314 and publish specific administrative policies, proccdures and guidelines consistent15 with these rules:1617 a) To ensure timely and efficient admissions to the bar, accurate, fair and18 confidential administration of the bar examination and the reporting of the bar19 exam ination results to tlle supreme court.2 )21 b) To inform applicants in a timely and accurate manner of a11 requirements22

pertaining to applications for and admission to practice and al1 pertinent procedures2324 relating to the adm inistration, processing and grading of the bar exam ination.z5

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Director o admissions. The board of governors shall appoint a director ofadmissions, and as many assistants as are necessary to administer the admissionsprocess and bar examination. The appointment of the admissions director shall bemade only after consultation with the board of bar examiners. The admissionsdirector shall have the responsibility to administer the bar examination, to carry outall the specific duties of the admissions director as hereinafter provided in theserules and shall serve as secretary to the board of bar examiners.

Administrative policies procedures and guidelines for admission to practicelaw. The board of bar examiners, the clerk of the supreme court and theadmissions director shall, as approved by the supreme court, jointly define, adoptand publish specific administrative policies, procedures and guidelines consistentwith these rules:

a) To ensure timely and efficient admissions to the bar, accurate, fair andconfidential administration of the bar examination and the reporting of the barexamination results to the supreme court.

b) To inform applicants in a timely and accurate manner of all requirementspertaining to applications for and admission to practice and all pertinent proceduresrelating to the administration, processing and grading of the bar examination.

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(c) The provisions of these Rules shall prevail over any conflicting provisions2 in the administrative policies, procedures and guidelines.3

7. Nevada Supreme Court Rule 50. Power of board of bar exam iners to5 exam ine applicants.6, l . The court hereby confers upon the board of bar exam iners the power toS exam ine applicants pursuant to Rule 49.910 2. The board of bar exam iners shall conduct written examinations ofl applicants,and may also, in its discretion. conduct oral exam inations of applicants12 on any relevant matters except the bar examination subjects listed in Rule 66.1314 -. As soon as practicable, al1 mem bers of the board ot bar exam iners shall15

enroll and participate in at least one grading sem inar or workshop conducted by thel 6National Conference of Bar Examiners. The provisions of this rule shall not7

l 8 preclude the board of bar exam iners from elnploying qualified graders.19z() 4. The board of bar examiners shall investigate. adequately and thoroughly,2 l each applicant s m oral character and fitness for membership in the bar and22 carefully pursue any adverse information relating to the m oral character and fitness23

of an applicant. In fulfilling this function, the board of bar exam iners may utilize425

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(c) The provisions of these Rules shall prevail over any conflicting provisions2 in the administrative policies, procedures and guidelines.3456789

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7 Nevada Supreme Court Rule 50 Power o board o bar examiners toexamine applicants

I. The court hereby confers upon the board of bar examiners the power toexamine applicants pursuant to Rule 49.

2 The board of bar examiners shall conduct written examinations ofapplicants, and may also, in its discretion, conduct oral examinations of applicantson any relevant matters except the bar examination subjects listed in Rule 66.

3 As soon as practicable, all members of thc board of bar examiners shallenroll and participate in at least one grading seminar or workshop conducted by theNational Conference of Bar Examiners. The provisions of this rule shall notpreclude the board of bar examiners from employing qualified graders.

4 The board of bar examiners shall investigate. adequately and thoroughly,each applicant s moral character and fitness for membership in the bar andcarefully pursue any adverse information relating to the moral character and fitnessof an applicant. n fulfilling this function, the board of bar examiners may utilize

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the services of a professional investigator, preferably with training and experience12 in bar admissions.3

5. In conducting its investigations concerning the character qualifications of5 applicants, the board of bar examiners may conduct hearings as provided by Rule6 57 or may request any disciplinary board or panel thereof of the state bar to7

investigate the character of any applicant and to m ake a report and89 recommendation to the board of bar examiners concerning the applicant. The10 report and recommendations of the local administrative committee shall not bel l .binding upon the board, and shall in no way prevent the board trom m aking its12

own investigation, but the board m ay base its recom mendation eoncenzing the1 314 admission of the applicant either in whole or in part upon materials and testimony15 collected and heard by the com mittee and upon the report and recom m endation ofl 6 the comm ittee.l 7I 8 The board of bar exam iners shall,within 3 ) days of the conclusion of any19 hearing concerning the character qualifications of an applicant, notify the applicant2 )

of the results of the hearing. The board of bar exam iners shall file a report with the122 clerk of the supreme court describing the nature and purpose of the hearing, and23 the results thereof in accordance with Rule 69 2).2425

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5 n conducting its investigations concerning the character qualifications ofapplicants, the board of bar examiners may conduct hearings as provided by Rule57 or may request any disciplinary board or panel thereof of the state bar toinvestigate the character of any applicant and to make a report andrecommendation to the board of bar examiners concerning the applicant. Thereport and recommendations of the local administrative committee shall not bebinding upon the board, and shall in no way prevent the board from making itsown investigation, but the board may base its recommendation concerning theadmission of the applicant either in whole or in part upon materials and testimonycollected and heard by the committee and upon the report and recommendation ofthe committee.

The board of bar examiners shall, within 30 days of the conclusion of anyhearing concerning the character qualifications of an applicant, notify the applicantof the results of the hearing. The board of bar examiners shall file a report with theclerk of the supreme court describing the nature and purpose of the hearing, andthe results thereof in accordance with Rule 69 2).

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6. The board of bar examiners shall have the power to investigate applicantsl2 through the National Conference of Bar Examiners, or any other investigative3 i l ts confidential or otherwise on the background of angency, to rece ve repo4 applicant, and to incur necessary expenses in connection with the same. Any5

reports obtained pursuant to such investigations may be classified confidential and7 shall not be available for inspection by the applicant unless the suprem e court or8 the board of bar exam iners otherwise orders.9

10 8. Nevada Supreme Court Rule 51. Qualifications of applicants for1 l exam ination.12

1?4 An applieant for examination for a license to practice as an attorney andl 4 counselor at law in this state shall:1516 1

. Have attained the age of majority.17

18 2. Be present or available within the State of Nevada, and remain so until19 examined as required by Rule 65, so as to permit and facilitate the exam ination,20

investigations, interviews and hearings necessary to determine the applicant s2122 morals, character, qualifications and titness to practice law.232425

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6 The board o bar examiners shall have the power to investigate applicants2 through the National Conference o Bar Examiners, or any other investigative3 agency, to receive reports confidential or otherwise on the background o an4 applicant, and to incur necessary expenses n connection with the same. Any56 reports obtained pursuant to such investigations may be classified confidential and7 shall not be available for inspection by the applicant unless the supreme court or

the board o bar examiners otherwise orders.91 8 Nevada Supreme Court Rule 51 Qualifications o applicants forII examination12

If An applicant for examination for a license to practice as an attorney and14 counselor at law n this state shall:15

16 I. Have attained the age o majority.1718 2 Be present or available within the State o Nevada, and remain so until19 examined as required by Rule 65, so as to permit and facilitate the examination,20

21investigations, interviews and hearings necessary to determine the applicant s

22 morals, character, qualifications and fitness to practice law.23

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RESPONDENT'S REQUESTl2 Respondent requests that ( 1) that the lower district court move on his case; and3(zlthat he be allowed to sit and take the February 20 1 0 Nevada Bar Exam with all4fees waived and that special accommodation ( a private hotel room where applican

6 can record his answers and paid for by the Nevada State Bar, ( in addition to7 paying for typing out of the Respondent recorded answers by a typist).8 Based on Respondent's declaration incorporated by reference and attached to9

this W rit request, which states the following:()l l (1) Respondent's case after six months in the lower court has not move evenl 2 though pursuant to local nlles Respondent requested a status action in his case (see13 attached letter to district court docket item 4) e.g. granting or denying a feel 415 waiver or filing of the case com plaint'16 (2) Respondent has missed taking the July 2009 exam;17 (3) Respondent is 59 and half years old, disabled under the ADA act;18 (4) Respondent due to his disability cannot afford the fees and costs of taking the19 Nevada Bar in Febnlary 2010.20

JURISDICTION122 FRAP 2123 w lu'rs OF M ANDAM US AND PROHIBITION AND OTHER124 EXTRAORDINARY W RITS25

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RESPONDENT S REQUEST

Respondent requests that I) that the lower district court move on his case; and(2)that he be allowed to sit and take the February 20 I 0 Nevada Bar Exam with allfees waived and that special accommodation ( a private hotel room where applicancan record his answers and paid for by the Nevada State Bar, ( in addition topaying for typing out of the Respondent recorded answers by a typist).

Based on Respondent's declaration incorporated by reference and attached toO this Writ request, which states the following:

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I) Respondent's case after six months in the lower court has not move eventhough pursuant to local rules Respondent requested a status action in his case (seeattached letter to district court docket item 4) c.g. granting or denying a feewaiver or filing of the case complaint;(2) Respondent has missed taking the July 2009 exam;(3) Respondent is 59 and half years old, disabled under the ADA act;(4) Respondent due to his disability cannot afford the fees and costs of taking theNevada Bar in February 2010.

JURISDICTIONFRAP 21WRITS OF MANDAMUS AND PROHIBITION, AND OTHEREXTRAORDINARY WRITS

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POINTS AND AUTHORITIES2 A petition for writ of mandamus pursuant to 28 U .S.C.S 165 1 is an3 dinary writ. A court should consider five guidelines to determine whether toxtraor4 grant mandamus relief: (1) the party seeking the writ has no other adeqtlate means,5

such as a direct appeal, to attain the relief he or she desires (2) the petitioner will7 be damaged or prejudiced in a way not correctable on appeal (3) the district court s8 , -order is clearly erroneous as a matter of law; (4) the district court s order is an oft-9

repeated error, or manifests a persistent disregard of the federal rules and (5) thel 0district court s order raises new and important problems or issues of Iaw of first1

12 impression. Bauman v.united States District Coul t, 557 F.2d 650, 654-55 (9th1 3 Cir. 1977).l 4

Only the items number 1 and 2 above should be considered because under the151(, facts of this case none of the other items are ripe for discussion.17 Based on the declaration of Respondent in support of this request it goes18 without question that he getting older and because of his disability his short1 9

window of opportunity of helping the poor is closing fast. lt goes without saying20zl that only after being provided special accom m odations when he passed the22 FEBRUARY 1988 California Bar exam ,such as a hotel room and having his23 answers tape recorded did he pass that bar after eleven attem pts. Pointing out that2425

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POINTS ND UTHORITIESA petition for writ of mandamus pursuant to 2X U S.C.S 65 I is an

extraordinary writ. A court should consider five guidelines to determine whether togrant mandamus relief: I) the party seeking the writ has no other adequate means,such as a direct appeal, to attain the relief he or she desires; (2) the petitioner willbe damaged or prejudiced in a way not correctable on appeal; (3) the district court sorder is clearly erroneous as a matter of law; (4) the district court s order is an oftrepeated error, or manifests a persistent disregard of the federal rules; and (5) thedistrict court s order raises new and important problems or issues of law of firstimpression. Bauman v.United States District Court, 557 F.2d 650, 654-55 (9thCir.1977).

Only the items number 1 and 2 above should be considered because under thefacts of this case none of the other items are ripe for discussion.

Based on the declaration of Respondent in support of this request it goeswithout question that he getting older and because of his disability his shortwindow of opportunity of helping the poor is closing fast. t goes without sayingthat only after being provided special accommodations when he passed theFEBRUARY 1988 California Bar exam, such as a hotel room and having hisanswers tape recorded did he pass that bar after eleven attempts. Pointing out that

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in the previous times he sat for the exam his illness affected his writing ability,l2 strength and he becam e fatigued.3 lt would have been futile for Respondent to have filed a similar request such as4 current W rit request because the lower court after six months has not ruled on his5

sim ple request for a fee waiver in order to file his complaint.7 CO NCLUSION8 Thus, under the FRAP 21 and under the ADA Act of 1990 as modified in9

2008, Respondent requests that his court issue a writ mandating that the lowerI 0court rule on Respondent s request for fee waiver and file his complaint.1

12 Furthermore this court should m andate that Respondent be allowed to sit for theI 3 Nevada State Bar exam in February 2010 having his fees waived and that thel 4

defendants provide a hotel room (or similar environment) and typist to provide a1516 typing of Respondent s recorded answers also paid by defendants.1718 RESPEC LY SUBM ITTED:l 92()21 DAT : A ST 28, 20092223 FELI TORRES, JR.24

Respondent/plaintiff5

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in the previous times he sat for the exam his illness affected his writing ability,strength and he became fatigued.

t would have been futile for Respondent to have filed a similar request such ascurrent Writ request because the lower court after six months has not ruled on hissimple request for a fee waiver in order to file his complaint.

ON LUSIONThus, under the FRAP 2 and under the ADA Act o 1990 as modified in

2008, Respondent requests that his court issue a writ mandating that the lowercourt rule on Respondent s request for fee waiver and file his complaint.

Furthermore this court should mandate that Respondent be allowed to sit for theNevada State Bar exam in February 2010 having his fees waived and that thedefendants provide a hotel room (or similar environment) and typist to provide atyping o Respondent s recorded answers also paid by defendants.

LY SUBMITTED:

Respondent/Plaintiff

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9 8 09 nvd 280 doc 6 petition for writ torres v sbn

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