IN THE SUPREME COURT OF FLORIDA. Case No. SC BRIEF OF AMICUS CURIAE DREAM BAR ASSOCIATION IN SUPPORT OF BAR APPLICANT S RESPONSE TO PETITION

Transcription

1 IN THE SUPREME COURT OF FLORIDA Case No. SC Florida Board of Bar Examiners ) Re: Question as to Whether Undocumented ) Immigrants Are Eligible for Admission to ) The Florida Bar ) ) BRIEF OF AMICUS CURIAE DREAM BAR ASSOCIATION IN SUPPORT OF BAR APPLICANT S RESPONSE TO PETITION AMY R. PEDERSEN Mexican American Legal Defense & Educational Fund th Street, NW Suite 100 Washington, DC (202) , telephone apedersen@maldef.org CECILIA M. OLAVARRIA Florida Bar No Law Offices of Cecilia M. Olavarria, PA 5805 Blue Lagoon Drive Suite 145 Miami, Florida (305) , telephone (305) , facsimile cecilia@olavarrialaw.com Counsel for Amicus Curiae

2 TABLE OF CONTENTS STATEMENT OF INTEREST OF AMICUS CURIAE... 1 INTRODUCTION... 2 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 3 I. The Board of Bar Examiners Overstepped Its Authority... 3 II. III. The Board of Bar Examiners Is Not Qualified or Authorized to Interpret and Apply Federal Immigration Law... 6 There Is a Valid Student-College Contract Implicating Rights Afforded under the Contracts Clause A. Events Support a Contract Implied in Fact B. Events Support a Contract Implied in Law C. The Board of Bar Examiners Actions and Policy Violate the Contracts Clause IV. Florida Cannot Exclude an Undocumented Person from the Practice of Law for Reasons that Contravene Due Process Protections CONCLUSION ii

3 TABLE OF AUTHORITIES Florida Constitution Art. I, 9, Fla. Const Art. V, 2(a), Fla. Const Art. V, 15, Fla. Const Rules of the Supreme Court Relating to Admissions to the Bar Fla. Bar. Admiss. R , 16 Fla. Bar. Admiss. R , 4, 5 Fla. Bar. Admiss. R Fla. Bar Admiss. R Fla. Bar. Admiss. R Florida Rules of Judicial Administration Fla. R. Jud. Admin Florida State Cases Acosta v. District Bd. of Trs., 905 So. 2d 226 (Fla. 3d DCA 2005) Commerce P ship 8098 Ltd. P ship v. Equity Contr. Co., 695 So. 2d 383, 386 (Fla. 4th DCA 1997) In re Florida Bd. of Bar Examiners, 358 So.2d 7 (Fla. 1978) In re Lobb, 157 So.2d 75 (Fla. 1963) iii

4 Lopez v. Florida Board of Bar Examiners, 231 So.2d 819 (Fla. 1969)... 4 John B. Stetson Univ. v. Hunt, 102 So. 637 (Fla. 1924)... 11, 12 Petition of Fla. State Bar Ass n & Others for Consideration by the Sup. Ct. of Fla. of Proposed Rules for Regulation of the Bar of this State Heretofore Filed and Submitted Feb. 24, 1937, 186 So. 280 (Fla. 1938) Pomponio v. Claridge of Pompano Condos, Inc., 378 So. 2d 774 (Fla. 1979) Sharick v. Southeastern Univ. of Health Scis., Inc., 780 So. 2d 136 (Fla. 3d DCA 2000) State v. Owen, 696 So. 2d 715 (Fla. 1997) State v. Raymond, 906 So. 2d 1045 (Fla. 2005)... 5 Tipper v. Great Lakes Chem. Co., 281 So. 2d 10, 13 (Fla. 1973) University of Miami v. Militana, 184 So. 2d 701 (Fla. 3d DCA 1966) Waite Development, Inc. v. City of Milton, 866 So. 2d 153 (Fla. 1st DCA 2004) United States Constitution Amend. XIV, 1, U.S. Const Federal Cases Bannum, Inc. v. Town of Ashland, 922 F.2d 197 (4th Cir. 1990) iv

5 Board of Regents v. Roth, 408 U.S. 564 (1972) DeCanas v. Bica, 424 U.S. 351, 354 (1976) Garrett v. City of Escondido, 465 F. Supp. 2d 1043 (S.D. Cal. 2006)... 9 General Motors Corp. v. Romein, 503 U.S. 181 (1992) Georgia Latino Alliance for Human Rights v. Deal, 793 F.Supp.2d 1317 (N.D. Ga. 2011)... 8 Godoy v. Office of Admissions, No. 05-CV-0675-RWS, 2006 WL , at *1 (N.D.Ga. July 25, 2006)... 5 Graham v. Richardson, 403 U.S. 365, 377 (1971)... 9, 11 Henderson v. Mayor of the City of New York, 92 U.S. 259 (1876)... 9 Lozano v. City of Hazleton, 620 F.3d 170, 222 (3d Cir. 2010)... 9 Mathews v. Eldridge, 424 U.S. 319 (1976) Perry v. Sindermann, 408 U.S. 593 (1972) Plyler v. Doe, 457 U.S. 202 (1982)... 1, 6-7, 8, 11 Schware v. Bd. of Bar Examiners, 353 U.S. 232 (1957) v

6 Takahashi v. Fish & Game Comm n, 334 U.S. 410 (1948) United States v. Arizona, 641 F.3d 339 (9th Cir. 2011)... 8 Villas at Parkside Partners v. City of Farmers Branch, No , slip op. at 23 (5th Cir. Mar. 21, 2012)... 9 Willner v. Committee on Character and Fitness, 373 U.S. 96 (1963) Federal Statutes 8 U.S.C U.S.C. 1182(a)(9)(B)(iii)(I) U.S.C U.S.C. 1981(a) Federal Regulations and Administrative Guidance 8 CFR 274a.12(c)(14) John Morton, U.S. Immigration and Customs Enforcement, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011)... 9 Federal Legislation Development, Relief, and Education for Alien Minors Act of 2011, H.R. 1842, 112th Cong. ( )... 1 Development, Relief, and Education for Alien Minors Act of 2011, S.952, 112th Cong. ( )... 1 vi

7 Development, Relief, and Education for Alien Minors Act of 2010, H.R. 5281, 111th Cong. ( )... 1 Other Authorities Florida State University, Mission Statement, Statement_0910.pdf Education Law 8.01[d][i] (Law Journal Press 2011) Letter of Twenty-Two U.S. Senators to the President Barack Obama (Apr. 13, 2011)... 9 vii

8 STATEMENT OF INTEREST OF AMICUS CURIAE DREAM BAR ASSOCIATION Amicus curiae, the DREAM Bar Association (DBA), is an unincorporated organization that welcomes undocumented and allied legal professionals, law students, and aspiring law students. Most DBA members refer to themselves as DREAMers, 1 as most would likely be beneficiaries of the Development, Relief, and Education of Alien Minors (DREAM) Act should it become federal law. 2 DBA s purpose is to provide a forum for DREAMers to identify opportunities to develop skills relevant to the legal profession through volunteer and pro bono activities. This support network seeks to provide its members with information related to financial aid, the Law School Admission Test (LSAT), the law school application process, the bar exam, admission into the legal profession, and passage of the DREAM Act. DBA does not collect dues or other monies. 1 These DREAM Bar Association (DBA) members are individuals who immigrated with their families to the United States as minors. Ultimately, the families who brought them to the United States found no opportunity to apply for or adjust to documented immigration status. Despite spending their childhood and coming of age in the United States, completing a K-12 education as permitted by Plyler v. Doe, 457 U.S. 202 (1982), and completing undergraduate and/or law school, these young people remain currently undocumented. 2 For individuals like the Respondent and members of DBA, the Development, Relief, and Education for Alien Minors (DREAM) Act, H.R. 1842, 112th Cong. ( ), S. 952, 112th Cong. ( ), would create an opportunity for them to adjust their status and thereafter become legal permanent residents. Even though this legislation enjoys sustained bipartisan support, no version of the bill has advanced successfully through both chambers of Congress. See, e.g., H.R. 5281, 111th Cong. ( ) (House roll call of ; Senate roll call of 55-41). 1

9 The Florida Board of Bar Examiners (Board) has petitioned this Court for an advisory opinion that will direct the board as to the admissibility of [the Respondent] and of future similarly-situated applicants to The Florida Bar which raises the question of ineligibility for bar admission because of immigration status. (Bd. s Pet. at 1, 10). The issue presented directly affects the membership of DBA. Amicus curiae respectfully submits the following points and authorities to amplify the reasons why both the Respondent and others similarly situated are eligible and should remain eligible for admission to The Florida Bar. INTRODUCTION The Board petitions this Court for an advisory opinion as to whether undocumented immigrations are eligible for admission to The Florida Bar. As a matter of law, fundamental fairness, and common sense, the answer is clear: All deserving, qualified applicants regardless of citizenship or immigration status are eligible for admission to The Florida Bar. Each qualified applicant, including an undocumented immigrant, must be admitted pursuant to the rules of the Supreme Court of Florida. Nothing in the rules would preclude an undocumented immigrant from admission based on his or her immigration status. To uphold a policy or adopt a rule to the contrary would undermine The Florida Bar s longstanding notions of justice and reward for hard work: Industry is the open sesame that unlocks the door to the lawyer's storehouse. Petition of Fla. State Bar 2

10 Ass n & Others for Consideration by the Sup. Ct. of Fla. of Proposed Rules for Regulation of the Bar of this State Heretofore Filed & Submitted Feb. 24, 1937, 186 So. 280, 287 (Fla. 1938). SUMMARY OF THE ARGUMENT As a matter of fact and law, Respondent has satisfied the requirements for admission to practice law in Florida and other similarly situated individuals would, as well. To uphold a policy or adopt a rule that bars or has the effect of barring undocumented immigrants from joining The Florida Bar due to their immigration status is inconsistent with federal law and would violate the rights afforded the Respondent and others similarly situated under the (1) Contracts Clause and (2) Due Process Clause of both the United States Constitution and the Florida Constitution. If the Court opts to resolve this matter based in whole or in part on immigration law, amicus curiae respectfully requests that the Court order additional briefing to provide the parties and amici an opportunity to present further arguments related to this complex area of federal law. ARGUMENT I. The Board of Bar Examiners Overstepped Its Authority The Supreme Court of Florida has exclusive jurisdiction to regulate the admission of lawyers. Art. V 15, Fla. Const.; see also Fla. Bar Admiss. R. 1-11, 1-12 and The division of labor between the Court and the Board of 3

11 Examiners is well-defined. The Supreme Court of Florida is the only entity that review[s], approve[s], and promulgate[s] the rules relating to admission to The Florida Bar. Fla. Bar Admiss. R. 1-12; accord Fla. R. Jud. Admin (specific and detailed process for amending rules of court). By comparison, the Board of Bar Examiners is an administrative agency of the Supreme Court of Florida created by the court to implement the rules relating to bar admission. Fla. Bar Admiss. R Although the Board evaluates the professional competence of an applicant for admission to practice, 3 the Court ultimately rules on the applicant s admission. Fla. Bar Admiss. R. 5-11; Lopez v. Florida Bd. of Bar Exam rs, 231 So.2d 819, 821 (Fla. 1969) (visa overstay not a bar to admission). Despite the prescribed roles between Board and this Court, the Board adopted a policy, on its own initiative, in January 2008 requiring information from bar applicants pertaining to their citizenship or immigration status. 4 This Court did not direct the Board to adopt such a policy, much less implement it. Of critical 3 According to Rule 5-10 of the Rules of the Supreme Court Relating to Admissions to the Bar, the Florida Board of Bar Examiners (Board) will recommend to this Court for admission to The Florida Bar every applicant over 18 years old who has complied with the bar examination and character and fitness requirements, as well as requirements of the applicable rules for admission into The Florida Bar. The Respondent has demonstrated his satisfaction of these requirements. Rather than conclude its investigation, the Board filed its petition with this Court. 4 Review of the Rules of the Supreme Court Relating to Admissions to the Bar shows no such citizenship/immigration status policy. 4

12 import is the fact that the Supreme Court of Florida did not delegate, review, approve, or adopt this January 2008 policy. (Bd. s Pet. at 2.) Instead, the ad hoc policy was triggered by the Board s unexplained attention to an unreported decision from a court in Georgia 5 and not fidelity to the rules of this Court. (Id. at 2-3.) The Board fails to explain how a court outside of Florida has imbued it with the power to adopt such a policy. Moreover, the Petitioner s choice neither to cite nor address the applicable rules here is telling. (Id. at 6-7.) Silence should not allow the Board to escape the plain language of the rules, including [m]odifications to the rules require the filing of a petition with the Supreme Court of Florida and subsequent order by the court. Fla. Bar Admiss. R It is a well-established principle that a policy creating or modifying a rule of court is constitutionally infirm. See, e.g., State v. Raymond, 906 So. 2d 1045, 1048 (Fla. 2005). This principle is grounded in Article V, section 2(a) of the Florida Constitution, which states that the Supreme Court of Florida shall adopt rules for practice and procedure. The sum of the Board s actions is that it assumed an authority and function exclusive to the Court when it adopted and implemented the January 2008 policy. Petitioning for an advisory opinion years after the fact does not negate the 5 Godoy v. Office of Admissions, No. 05-CV-0675-RWS, 2006 WL , at *1 (N.D.Ga. July 25, 2006). 5

13 Board of Bar Examiner s original error in arrogating the Court s authority to itself. By operating outside of its delegated authority in adopting the January 2008 policy, the Board has denied the Court its plenary power to act on the Board s recommendation and decide whether to admit Respondent to The Florida Bar. For this reason, the policy is invalid and cannot be applied to Respondent and those similarly situated. Furthermore, by refusing to proceed with a recommendation or refusal of recommendation regarding the Respondent s application for admission to The Florida Bar, the Board failed to carry out its administrative function as authorized and mandated by the rules. II. The Board of Bar Examiners is Not Qualified or Authorized to Interpret and Apply Federal Immigration Law The Board s ad hoc policy conditions a serious consequence (inadmissibility to the profession) on whether a noncitizen applicant is an undocumented immigrant, a term that has no counterpart in federal immigration law. The fact that the Board fails to grasp the complexity of immigration status determinations highlights the danger of allowing the January 2008 policy to stand. As the Supreme Court of the United States has recognized, it is impossible for a State to determine which aliens the Federal Government will eventually deport, which the Federal Government will permit to stay, and which the Federal Government will 6

14 ultimately naturalize. Plyler v. Doe, 457 U.S. 202, 240 n.6 (1982) (Powell, J., concurring). The Board has demonstrated repeatedly in its briefing that it can neither understand nor apply immigration law. The Board asserts that Respondent is an illegal entrant to the United States (Bd. s Pet. at 5.), and relies on the illegal entry provision of the Immigration and Nationality Act, as amended (INA), 8 U.S.C. 1325, which is wholly inapplicable to Respondent who entered the United States with a visa. Compare (Bd. s Pet. at 9) with (Resp. at 1); 8 U.S.C (noting eludes examination or inspection by immigration officers at entry as requisite elements). Similarly, the Board makes reference to continuing presence, (Bd. s Pet. at 9), without addressing the INA s treatment of an undocumented minor s presence. 8 U.S.C.A. 1182(a)(9)(B)(iii)(I) ( No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States ). The INA s unlawful presence provision is limited to the specific context of the admissibility into the U.S. of certain noncitizens who were previously in the United States and accrued varying periods of unlawful presence before their departure. Immigration law is a complex scheme of statutes and regulations that involves broad discretion exercised by federal officials. See 8 U.S.C. 1101, et 7

15 seq. Myriad regulations govern immigration classifications, removability, and related issues, and rely on a complex administrative process for making the relevant determinations. United States v. Arizona, 641 F.3d 339, 351 (9th Cir. 2011) (considering how the many provisions of a vastly complex statutory scheme function together rather than identifying one INA provision and concluding that its text alone holds the answer). Many individuals, including DREAMers, cannot be classified easily under this system; indeed, persons who may lack any formal immigration status still may be allowed to remain in the United States. See, e.g., Georgia Latino Alliance for Human Rights v. Deal, 793 F.Supp.2d 1317, 1327 (N.D. Ga. 2011) (discussing complexity of immigration statuses). In addition, a non-citizen s immigration status under federal law can change over time. Plyler, 457 U.S. at 230 (recognizing that many undocumented children will remain in the United States indefinitely and some will become lawful residents or citizens). Thus, in order to apply its ad hoc policy, the Board of Bar Examiners must undertake tasks reserved to federal immigration authorities by federal law and the Supremacy Clause of the U.S. Constitution when it reviews immigration documents and makes immigration determinations. In addition, courts have enjoined repeatedly state and local laws, regulating the conditions under which noncitizens live in the country a function exclusively reserved by the Constitution to the federal government. See e.g., DeCanas v. Bica, 8

16 424 U.S. 351, (1976); Henderson v. Mayor of the City of New York, 92 U.S. 259, (1876); Graham v. Richardson, 403 U.S. 365, (1971); Villas at Parkside Partners v. City of Farmers Branch, No , slip op. at 23 (5th Cir. Mar. 21, 2012); Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1059 (S.D. Cal. 2006). See also Lozano v. City of Hazleton, 620 F.3d 170, 222 (3d Cir. 2010) (judgment vacated on other grounds) (noting the city s provisions dealing with immigrants demonstrated either a lack of understanding or a refusal to recognize the complexities of federal immigration law). Importantly, the Board is either unaware of or ignores a critical recent development in immigration enforcement. In response to an April 13, 2011, United States Senate letter (copy is attached as Exhibit B), the United States Department of Homeland Security (DHS) took several steps to clarify and then define prosecutorial priorities for the United States Immigration and Customs Enforcement (ICE), which culminated in the June 2011 release of a memoranda commonly referred to as the Morton Memo or the deferred action announcement. John Morton, U.S. Immigration & Customs Enforcement, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, & Removal of Aliens (June 17, 2011) (copy is attached as Exhibit C). This DHS directive to ICE personnel lists several positive factors that trigger prosecutorial 9

17 discretion/deferred action being applied to DREAMers and other populations, id. at 4-5, ultimately halting many removal proceedings and creating the possibility for work authorization. 8 CFR 274a.12(c)(14) (work authorization for those granted deferred action). Contrary to the position of the Board in its brief, (Bd. s Pet. at 9), should ICE detain the Respondent or others similarly situated, this directive and regulation create a strong likelihood that the federal government would not remove them and would grant them work authorization. The determination whether a particular person may remain in the United State can be a complicated legal question that is subject to intricate federal statutory regulatory provisions. In our federal immigration system, people may be entitled to or permitted to stay in the country even though they are not in a recognized immigration status or classification. Moreover, federal immigration officials possess and exercised broad discretion in administering the immigration laws. The Florida Board is neither equipped nor authorized to make immigration determinations and condition its licensing recommendations on these determinations. III. There is a Valid Student-College Contract Implicating Rights Afforded under the Contracts Clause State case law, including Florida s, has long defined the student-college relationship as a contract. See, e.g., Sharick v. Southeastern Univ. of Health Scis., Inc., 780 So. 2d 136, 139 (Fla. 3d DCA 2000) (relationship between student and 10

18 university is contractual); see generally Education Law 8.01[d][i] (Law Journal Press 2011). In Florida, this contractual relationship was originally announced in John B. Stetson University v. Hunt, 102 So. 637, 640 (Fla. 1924), as to private institutions of higher learning and then later extended to public colleges and universities. University of Miami v. Militana, 184 So. 2d 701, 704 (Fla. 3d DCA 1966) ( Nor do we find that the determinative principles of law are different for private and for public institutions and colleges. ); see also Acosta v. Dist. Bd. of Trs., 905 So. 2d 226, 229 (Fla. 3d DCA 2005) (Shepherd, J., concurring in part and dissenting in part) (applying contractual relationship to public community college). An undocumented person s lack of immigration status does not impair his or her ability to enter or enforce contracts. 42 U.S.C. 1981(a) ( All persons within the jurisdiction of the United States shall have the same right in every State... to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. ); Takahashi v. Fish and Game Comm n, 334 U.S. 410, 419 (1948) ( The protection of this section [1981] has been held to extend to aliens as well as citizens. ); Graham v. Richardson, 403 U.S. 365, 377 (1971) (same); see also Plyler, 457 U.S. at 210 ( [w]hatever his status under the immigration laws, an [undocumented] alien is surely a person in any ordinary sense of that term ). By extension, an undocumented immigrant law student 11

19 enrolled in a public law school of Florida, like Respondent and possibly others, would be covered by this student-college contractual relationship. The court in John B. Stetson University defined this relationship as an implied contract. 184 So. 2d at 704 (noting a student conforming to university s rules and regulations was an implied condition ). Under Florida law, contracts implied in fact require the assent of parties, while contracts implied in law do not. Tipper v. Great Lakes Chem. Co., 281 So. 2d 10, 13 (Fla. 1973). A. Events Support a Contract Implied In Fact The tacit promise at the heart of a contract implied in fact is inferred, in whole or in part, from the conduct and words of the parties. Waite Development, Inc. v. City of Milton, 866 So. 2d 153, 155 (Fla. 1st DCA 2004). As to Respondent and other similarly-situated students, Florida through its instrumentalities including the Board of Governors, Florida State University (FSU), and other public institutions with law schools in Florida has adopted and advertised a mission statement that links public law school enrollment in Florida to the professional practice of law in Florida. For example, in the case of Respondent, Florida s exact words as to FSU at the time of Respondent s law school application were: Our extensive graduate programs and our law and medical schools enrich the graduate, professional and undergraduate experiences, making Florida State University a demanding and intellectually stimulating environment for students and faculty. 12

20 FSU, Mission Statement, 0.pdf (emphasis added) ( released as part of the Board of Governors Strategic Plan on June 9, 2005 ). The Respondent, in turn, undertook significant burdens to apply to the FSU College of Law including: (1) excelling in college without the assistance of federal or state financial aid; (2) applying for and then taking the LSAT without the benefit of a for-profit preparation course; (3) completing his application; (4) demonstrating persuasion skills and candor (about his immigration status) in his admission essay, (Resp. at 3); and (5) paying to enroll. After enrollment, the Respondent (6) persisted in law school, receiving very high praise for his talent, [ ] work ethic, [ ] good works, and [ ] leadership, (id. at 10), without federal or state financial aid; (7) lived within the means of a privately funded scholarship, (id. at 2 n.5); (8) graduated with high grades and several book awards, (id. at 2); (9) applied for admission to The Florida Bar, (id. at App. 32); (10) sought a waiver of the Board of Bar Examiner s self-promulgated citizenship/immigration policy, (id. at 4, App. 71); (11) studied for the July 2011 bar examination; and (12) then took and passed the July 2011 examination, (id. at 4). But for the words of Florida, the Respondent would not have undertaken the vast majority of this conduct. Taken together, Respondent and Florida have a cognizable contract implied in fact 13

21 that must be honored. Similar words by Florida and steps by other similarly situated undocumented students in Florida also would amount to other enforceable contracts in fact for those individuals, as well. B. Events Support a Contact Implied in Law In the alternative, the aforementioned set of words and deeds surely supports the recognition of an implied in law contract, as Respondent and others have conferred a benefit (including fees and tuition) of which Florida has knowledge of and wholly retained. See, e.g., Commerce P ship 8098 Ltd. P ship v. Equity Contr. Co., 695 So. 2d 383, 386 (Fla. 4th DCA 1997) (citations omitted). C. The Board of Bar Examiners Actions and Policy Violate the Contracts Clause Actions by the state with regard to the student-college contractual relationship are circumscribed by the Contracts Clauses of Article I, section 10, clause 1 of the United States Constitution and of Article I, section 10 of the Florida Constitution. Florida can hardly dispute that the Board of Bar Examiner s ad hoc citizenship/immigration policy satisfies the three initial elements of a Contracts Clause violation: (1) a contractual relationship (i.e., whether through contract in fact or contract in law); (2) a change in the law (i.e., the Board of Examiner s lastminute withdrawal of the waiver of its ad hoc citizenship/immigration policy as to Respondent) that impairs the contractual relationship; and (3) that the impairment is substantial (i.e., the loss of entry into The Florida Bar). See General Motors 14

22 Corp. v. Romein, 503 U.S. 181, 186 (1992); Pomponio v. Claridge of Pompano Condominiums, Inc., 378 So. 2d 774, (Fla. 1979) (police powers must be the least restrictive means possible avoiding impermissible retroactive application). There could hardly be a more obvious and substantial impairment of a contract than its premature termination (on the eve of admission to the profession no less). See Bannum, Inc. v. Town of Ashland, 922 F.2d 197, 202 (4th Cir. 1990) (severe impairment is state action, in part, that relieves a party of a contractual obligation). IV. Florida Cannot Exclude an Undocumented Person from the Practice of Law for Reasons that Contravene Due Process Protections A State cannot exclude a person from the practice of law or from any occupation in a manner or for reasons that contravene the Due Process.... Schware v. Bd. of Bar Examiners, 353 U.S. 232, (1957). These due process protections are housed on at least equal footing within Florida s own constitution. State v. Owen, 696 So. 2d 715, 719 (Fla. 1997) (protection afforded under the federal constitution represents the floor for basic freedoms while [Florida s] constitution represents the ceiling ). Due process protections are guaranteed by the 5th Amendment to the United States Constitution and made applicable to states and its subdivisions through the 14th Amendment. Under the Due Process Clause, property interests are created by state law, rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Board of Regents v. Roth, 408 U.S. 564, 15

23 577 (1972); see Art. I, 9, Fla. Const.; Amend. XIV, 1, U.S. Const. Respondent, relying on the Board initial waiver of its own policy in 2011, spent time and resources preparing for and taking the bar exam with the understanding that the Board ultimately would make a recommendation to the Florida Supreme Court regarding his admissibility. Perry v. Sindermann, 408 U.S. 593, (1972) (property interest can be created based on the conduct and representations of government officials when their actions lead to the creation of a mutual explicit understanding.) He provided satisfactory evidence of good moral character and passed the bar exam. The Board received all information necessary to complete its investigation and make a recommendation to the Court regarding applicant s admissibility. Fla. Bar Admiss. R Rather than conclude its investigation and submit its recommendation to the Court regarding applicant s character and fitness to practice law in Florida, the Board denied applicant adequate notice and opportunity to contest the deferral of his application by the Board. See In re Lobb, 157 So.2d 75 (Fla. 1963). See also Mathews v. Eldridge, 424 U.S. 319, 348 (1976) (the essence of procedural due process is notice and an opportunity to be heard); Willner v. Committee on Character and Fitness, 373 U.S. 96, 102 (1963) (requirements of procedural due process must be met before a state can exclude a person from practicing law). Further, the deferral is based on a constitutionally impermissible classification unnecessary and unrelated to the Board s 16

24 administrative function of investigating applicant s character 6 and fitness and determining his minimum technical competence through the Florida bar examination. 6 The term, good moral character is vague enough to be easily adapted to fit personal views, attitudes, and prejudices and thus, is a dangerous instrument for arbitrary and discriminatory denial of the right to practice law. In re Fla. Bd. of Bar Exam rs, 358 So.2d 7, 8-9 (Fla. 1978) (citing Konigsberg v. State Bar of California, 353 U.S. 252, (1957) (footnotes omitted)). 17

25 CONCLUSION For the foregoing reasons, amicus curiae respectfully requests that this Court (1) issue an advisory opinion directing or otherwise direct the Board of Bar Examiners to conclude its assessment and submit its recommendation to the Court concerning the Respondent, and (2) affirm the ability of Respondent and all future similarly-situated applicants to be admitted to The Florida Bar. Respectfully submitted this day of March 2012, AMY R. PEDERSEN CECILIA M. OLAVARRIA Mexican American Legal Defense & Florida Bar No Educational Fund Law Offices of Cecilia M. Olavarria, PA th Street, NW 5805 Blue Lagoon Drive Suite 100 Suite 145 Washington, DC Miami, Florida (202) , telephone (305) , telephone (305) , facsimile Counsel for Amicus Curiae 18

26 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the parties listed below by U.S. Mail and and to the amici curiae listed on the below service list by this day of March, 2011: PARTIES Talbot D Alemberte and Patsy Palmer Thomas Arthur Pobjecky Attorneys for Respondent General Counsel D Alemberte & Palmer PLLC Florida Board of Bar Examiners PO Box Eider Court Tallahassee, Florida Tallahassee, Florida dalemberte@dalemberteandpalmer.com pobjeckyt@flcourts.org Counsel for Respondent Counsel for Petitioner AMICI SUPPORTING RESPONDENT Martha W. Barnett Wendi Adelson 1901 Miller Landing Road 426 West Jefferson Street Tallahassee Florida Tallahassee, Florida martha.barnett@hklaw.com wadelson@admin.fsu.edu Former American Bar Association Counsel for The Florida State President University Center for the Advancement of Human Rights William Reece Smith, Jr. Cheryl Little Carlton Fields Lana Chiariello PO Box Biscayne Boulevard, Suite 400 Tampa, Florida Miami, Florida rsmith@carltonfields.com lchiariello@aijustice.org Former American Bar Association Counsel for Americans for Immigrant President Justice Stephen N. Zack Boies Schiller & Flexner Miami, Florida szack@bsfllp.com Former American Bar Association President AMY R. PEDERSEN Counsel for Amicus Curiae

27 CERTIFICATE OF FONT COMPLIANCE Undersigned counsel certifies that the typeface used in this document is 14- point, proportionately-spaced, Times New Roman. AMY R. PEDERSEN Counsel for Amicus Curiae