IN THE SUPREME COURT OF FLORIDA. FLORIDA BOARD OF BAR EXAMINERS ) RE: MICHAEL HUERTA, SR. ) Case No. SC ) Lower Tribunal No.

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1 IN THE SUPREME COURT OF FLORIDA FLORIDA BOARD OF BAR EXAMINERS ) RE: MICHAEL HUERTA, SR. ) Case No. SC ) Lower Tribunal No.: Response to Petition for Review of Administrative Action The Florida Board of Bar Examiners, by and through its undersigned attorney, responds to the pending petition filed by Michael Huerta, Sr. (Huerta) and states: Jurisdiction The board acknowledges that the Court has jurisdiction of this matter pursuant to Article V, Section 15 of the Florida Constitution and Rule of the Rules of the Supreme Court Relating to Admissions to the Bar (hereinafter referred to as Rules ). Statement of the Case and the Facts Huerta elected not to file a brief in his pending case. Huerta explained: There is no need to waste this Court s time by repeating arguments set forth in the annexed petition. (Huerta s Brief for Administrative Appeal at cover page) The annexed petition does not contain a detailed statement of facts. The board, therefore, submits the following chronology of Huerta s file: 08/05: Huerta takes and passes the MPRE. 1

2 08/15/05: Huerta files his bar application. 10/06-02/06: Correspondence occurs between the board and Huerta wherein Huerta was requested to, among other things, have records relating to two arrests unsealed. Board informs Huerta by letter dated February 27, 2006 he has 60 days from the date of this letter to comply or his file will be inactivated. 02/06: Huerta takes and passes the General Bar Examination. 03/20/06: Board s letter acknowledges receipt of the signed order to unseal records. 03/30/06: Board s letter requests information from Huerta regarding a possible judgment entered against him in favor of the New York Department of Finance. 04/26/06: Board s letter acknowledges receipt of previously requested documents and information. 06/28/06: Staff completes its background investigation and forwards results to the board. 07/21/06: Notice to Appear for an Investigative Hearing sent to Huerta by certified mail. 08/09/06: Board s letter acknowledges Huerta s amendment and change of address. 08/22/06: Post Office returns the board s certified mail as unclaimed. Notice resent to Huerta at his new address. 09/14/06: Board s letter acknowledges receipt of Huerta s request for a hearing date in November Huerta provided a hearing date of November 17, /24/06: Board s letter acknowledges Huerta s request to postpone from the November 2006 hearing and to reschedule for a January 2007 hearing date. 2

3 01/26/07: Huerta appears at his investigative hearing. 03/22/07: Board s letter notifies Huerta that the board decided to prepare and file Specifications. 03/30/07: Board s letter acknowledges receipt of Huerta s letter requesting a Negotiated Consent Judgment in lieu of having specifications filed. Huerta was informed that specifications had to be filed and answered before Huerta could request entering into a negotiated consent judgment. 05/01/07: Huerta is served with Specifications and has 20 days to answer. 05/24/07: Board s letter acknowledges Huerta s request for an extension to file his answer and gives Huerta a new deadline of May 31, /31/07: Board s letter acknowledges receipt of Huerta s Answer to Specifications and informs Huerta of procedural responsibilities he had to comply with. Letter informs Huerta that a formal hearing date could not be set until all procedural matters are resolved. 07/31/07: Board s letter acknowledges receipt of Huerta s letter dated July 22, 2007 and informs Huerta that the remaining hearing dates for 2007 were full and that the calendar for 2008 would be available at the end of September /07-03/08: Correspondence occurs between the board and Huerta regarding outstanding procedural matters and several letters from Huerta demanding a recommendation for admission. 09/17/07: Huerta files a motion with the Court for the board to conclude its character and fitness investigation. 02/26/08: Court denies Huerta s motion and directs the board to schedule the final hearing in the matter in the first available hearing slot after the completion of the sworn testimony of one of the witnesses. A copy of the Court s order is attached to this response as Exhibit A. 3

4 03/27/08: Huerta s formal hearing is held. The board rules to deny Huerta s admission for two years. 05/13/08: Findings of fact, Conclusions of Law, and Recommendation sent to Huerta. Huerta is eligible to re-apply on May 13, /25/08: Huerta file an appeal with the Court regarding the board s decision to deny his admission. 12/30/08: The Court granted the board s motion to dismiss based on Huerta s untimely notice of appeal. A copy of the Court s order is attached to this response as Exhibit B. 07/09/10: Board s letter acknowledges receipt of Huerta s bar application with all supporting documents except confirmation that he had been fingerprinted by IBT as required. 09/10-12/10: Board requests clarification of residence/employment and circumstances surrounding an administrative hearing in March After several letters between Huerta and the board, Huerta submits a signed and notarized amendment to his application. 01/12/11: Board s letter requests Huerta to submit his statement of rehabilitation. 02/11: Huerta s examination scores expired. 05/06/11: Board s letter acknowledges Huerta s petition to extend the five-year rule for bar examination scores and receipt of the $75 petition fee. 06/22/11: Board s letter notifies Huerta that the board denied his petition. 07/22/11: Board s letter notifies Huerta that it will convene a formal rehabilitation hearing; the letter included the list of Board exhibits that will be part of the record for the upcoming hearing. 4

5 07/23/11: Letter from the Office of General Counsel notifies Huerta of its exhibits for his upcoming formal rehabilitation hearing. 11/15/11: Huerta files with the Court his Notice of Administrative Appeal. 12/02/11: Huerta serves his brief dated August 2, 2011; the brief does not contain a certificate of service; the board receives its copy of the brief on December 12, In the cover page to his brief, Huerta asserts the new issue that the board withheld documents from him so that [Huerta] could not present a strong case of rehabilitation, with the intent of forcing another hearing. The board denies these assertions. The board has informed Huerta on several occasions as to the steps that he needs to take to get copies of documents from his file that are available to him under the Rules of the Supreme Court Relating to Admissions to the Bar (Rules). As to Huerta s assertion about the board s intent, the holding of another hearing is mandated by rule 2-14 of the Rules. That rule provides: 2-14 Reapplications for Admission. Any applicant or registrant who was previously denied admission by the board by a negotiated consent judgment or through a Findings of Fact and Conclusions of Law that has not been reversed by the Supreme Court of Florida may reapply for admission by filing a new Bar Application after 2 years or such other period as may be set in the consent judgment or the Findings. The new application must be filed on the form available on the board's website with current references, submission of fingerprints in the format required by the board, any supplemental documents that the board may reasonably require, the applicable fee, and a detailed written statement describing the scope and character of the applicant's evidence of rehabilitation as required by rule The statement must be sworn and may include 5

6 corroborating evidence such as letters and affidavits. Thereafter, the board will determine at an investigative hearing, a formal hearing, or both, if the applicant's evidence of rehabilitation is clear and convincing and will make a recommendation as required by rule In determining whether an applicant should appear before an investigative hearing panel, a formal hearing panel, or both, the board is clothed with broad discretion. In Huerta s case, the board waived the holding of an investigative hearing and proceeded directly to the holding of a formal rehabilitation hearing. Lastly, Huerta also references his recent admission to the New York State Bar in the cover page to his brief. That admission, of course, is not binding on Florida in that the different bar admissions authorities have differing standards as to character and fitness. See Florida Board of Bar Examiners re E.R.M., 630 So.2d 1046 (Fla. 1994) (member of the New York State Bar denied admission in Florida); Florida Board of Bar Examiners re C.W.G., 617 So.2d 303 (Fla. 1993) (member of the California Bar denied admission in Florida). Argument Rule 2-29 of the Rules (formerly Article IV, section 2.) provides in part: 2-29 Stale File Fee. Applicants whose Bar Application has been on file for more than 3 years shall be required to file a new Bar Application answering each item for the period of time from the filing date of the last application filed to the date of the filing of the new application including submitting current references, a fingerprint card, and the applicable fee. 6

7 This rule was first enacted by the Court in Florida Board of Bar Examiners re Amendment of Rules, 462 So.2d 463, (Fla. 1985). In 1993, the Court enacted a companion provision to the stale file rule to address the issue of staleness of bar examination scores. Florida Board of Bar Examiners re Amendment to Rules, 626 So.2d 156, 158 (Fla. 1993). This provision, set forth under Rule of the Rules (formerly Article IV, section 2.b.), provides: Five Years. An applicant's successful completion of the Florida Bar Examination shall remain valid for a period of 5 years from the date of the administration of the last part of the Florida Bar Examination that was successfully completed. If the 5-year period expires without admission, an applicant shall, except for good cause shown, be required to retake the Florida Bar Examination and again pass all parts of the examination. In addressing Huerta's petition before the Court, the underlying rationale for the enactment of the five-year limitation for bar exam scores should be controlling. Such rationale was set forth in the Court's 1993 opinion: The proposed rule amendment also provides that an applicant must retake the Florida Bar Examination if notice of successful completion of the examination is older than five years. Currently, the Rules require an applicant to file a bar application "no later than 180 days from the date of notice that success has been attained on [the Florida Bar Examination]." Article VI, Section 9 of the Rules. The intent of such requirement is to prevent an inordinate passage of time between a demonstration of minimum technical competence by completion of the bar examination and admission to The Florida Bar. Notwithstanding the intent of the rules, certain applicants who previously passed all parts of the bar examination have gone lengthy periods of time without being admitted. Such applicants include individuals whose files were inactivated due to staleness and applicants who were previously denied a favorable recommendation by the Board. 7

8 * * * The five-year limitation is appropriate because that is the same length of time used by The Florida Bar in determining that a retired or delinquent member can only be reinstated "upon application to and approval by the Florida Board of Bar Examiners." Rule 1-3.7(e) of the Rules Regulating The Florida Bar. The Board submits that the inclusion of the five-year limitation will ensure a reasonable time span between the demonstration of minimum technical competence and admission to The Florida Bar. Rules, 626 So.2d at 158 (emphasis supplied). Based upon the above-quoted rationale, it is clear that the five-year limitation period was specifically enacted to address individuals like Huerta who have previously been denied admission. In the cover page to his brief, Huerta states that he was admitted to practice of law in New York last September. Huerta s membership in an out-of-state bar does not, however, eliminate his need to pass Florida s bar examination again as established by the Court s decision in the case of In re Russell, 236 So. 2d 767 (Fla. 1970). In the Russell case, the petitioner (a member of the Massachusetts Bar and a resident of Florida) attacked Florida's lack of reciprocity as unconstitutional. The petitioner was offended by Florida's policy requiring her to submit to an examination testing her knowledge of law even though she was a licensed lawyer in Massachusetts. The Court in Russell found the petitioner's argument "utterly devoid of merit." Id. at 768. The Court observed that "the right to practice law in State courts is not a 8

9 privilege granted under the Federal Constitution." Id. The Court further held that its bar examination policy did not violate the federal guarantees of due process and equal protection as mandated by the holding in Schware v. Board of Bar Examiners, 353 U.S. 232 (1957). The Russell Court reaffirmed the intimate connection between the practice of law and the administration of justice. The Court thus concluded: Id. at 769. We see it clearly as our duty to admit to this special position of obligation and trust only those applicants, whether from Florida schools or elsewhere, who can satisfactorily demonstrate their credentials through a test of competence given under our supervision and control. The reasoning relied upon by the Russell Court is equally applicable to the reasonable requirement that the demonstration of competence must occur within five years of admission to The Florida Bar. That requirement is rationally connected to an applicant's fitness to practice law in Florida. Accord Giannini v. Real, et al., 911 F.2d 354, 358 (9th Cir. 1990) ("California has the right to make its examination more comprehensive and difficult than other states...[a]llowing California to set its own bar examination standards is rationally related to the legitimate government need to ensure the quality of attorneys within the state."). In the case of Petition of Cuban-American Lawyers Program, 367 So. 2d 218 (Fla. 1979), this Court rejected certain requested exceptions to the admissions process sought by bar applicants. In reaching its decision, the Court reasoned: 9

10 While we have continued sympathetic to the condition of the CALI applicants, we have nonetheless remained mindful of our paramount responsibility in the admissions process--to protect the public by ensuring that those who are admitted to practice law in this state have demonstrated a required level of competence. Id. at 219. As mandated by the provisions of Rule , that demonstration of competence must occur within a reasonable period of time prior to admission to the Bar. CONCLUSION Huerta has the burden of establishing good cause to waive the requirements of Rule of the Rules. The board properly decided that Huerta had not met that burden. The board requests the entry of an order denying the relief sought herein and dismissing the petition. Dated this 22 nd day of December

11 Florida Board of Bar Examiners Alan H. Aronson, Chair Michele A. Gavagni Executive Director By: Thomas Arthur Pobjecky General Counsel Florida Board of Bar Examiners 1891 Eider Court Tallahassee, FL (850) Florida Bar # Certificate of Service I hereby certify that a true and correct copy of the foregoing Response has been served by U.S. Mail this 22 nd day of December 2011 to Michael Huerta, Sr., 37 F Amberly Drive, Manalapan, New Jersey Thomas Arthur Pobjecky Certificate of Type Size and Style I hereby certify that the size and style of type used in this Response are 14 Times New Roman. Thomas Arthur Pobjecky 11