IN THE SUPREME COURT OF THE STATE OF FLORIDA

IN THE SUPREME COURT OF THE STATE OF FLORIDA In the Matter of the Application for Admission to the Florida Bar of Case No.: SC10-367 EDWARD L. HOWLETTE, SR. / APPELLANT S INITIAL BRIEF BYRD & BARNHILL, P.L. JOHNNIE B. BYRD, JR., ESQ. FBN: 227269 206 North Collins Street Plant City, Florida 33563 Telephone: 813.759.1224 Fax: 813.759.1101 Email: johnnie@byrd-law.com Attorney for Petitioner 1

TABLE OF CONTENTS TABLE OF CONTENTS.2 TABLE OF CITATIONS. 3 STATEMENT OF THE CASE AND FACTS..5 SUMMARY OF ARGUMENT 7 ARGUMENT 8 CONCLUSION 14 CERTIFICATE OF SERVICE 16 CERTIFICATE OF FONT SIZE COMPLIANCE..16 2

TABLE OF CITATIONS Cite Page Florida constitution: Art. V 15, Fla. Const...8 Florida Supreme Court: Florida Bd. Bar Examiners re Higgins 11 772 So. 2d 486 (Fla. 2000) Florida Bd. Of Bar Examiners re M.B.S. 955 So.2d 504,508 (Fla. 2007).9 Holland v. Gros, 89 So.2d 255 (Fla. 1956)..9 State v. Boyd, 846 So.2d 458 (Fla. 2003).8,9,10 Florida Rules: Fla. Bar Admiss. 2-30.2..8 Fla. Bar Admiss. R. 3-40.2 5,12,11 Fla. Bar Admiss. R. 4-18.2 8 3

STATEMENT OF THE CASE AND FACTS 1 1. Nature of the Case. Howlette, an applicant for admission to the Florida Bar, is seeking an extension of his Bar Exam Grades for a time period to include: (1) the time required for the Florida Board of Bar Examiners to conduct the public hearing in May of 2010; (2) the time for the Board to make a recommendation to the Supreme Court based upon the public hearing, and (3) for the Supreme Court to render a decision on the Board s recommendation with respect to him. 2. Course of the Proceedings. Howlette, a Florida resident and previously disbarred and now reinstated member of the New York Bar, has been on a quest to gain admission to the Florida Bar since his initial application in 2002. See, Verified Petition and Exhibits and Appendix M (Chronology) 1 Throughout this Brief, the Appellant/Petitioner, Edward Lee Howlette, Sr., will be referred to as the Howlette. The Respondent/Appellee, The Florida Board of Bar Examiners, will be referred to as the Board. References to the Rules Regulating the Florida Bar will be designated as Rule with the appropriate number, i.e. Rule 3-7 or as Rules. 4

The Court previously denied Howlette admission to the Bar because of his disbarment in New York; however, after his reinstatement in New York in 2007, the Court ordered that Howlette could re-apply for admission to the Florida Bar subject to the provisions of the Rules relating to the admission of disbarred lawyers. See, Appendix G Howlette subsequently reapplied for admission to the Florida Bar and also requested and was granted a two year extension of his grades by the Board from January, 2008 until January, 2010. See, Appendix H For reasons unknown to and beyond the control of Howlette, the Board s investigation extended well beyond the nine-month time period set out in Rule 3-40.2. Howlette was finally noticed to appear for an investigative hearing before the Board in November, 2009. See, Appendix I Since the Board did not concluded its investigation within the nine-month time period set out in Rule 3-40.2, Howlette requested the Board to extend his grades a second time to encompass amount of time necessary for the completion of the process of his admission to the Bar. See, Appendix D On December 22, 2009, Howlette s request for a second extension was summarily denied by the Board. Despite the submissions by Howlette, the Board made no factual inquiry or finding regarding the substantive issue of whether there 5

was good cause for the extension of the bar grades, only denying the request without findings or comment. See, Appendix F Howlette moved the Board to reconsider its denial to extend his grades. See Appendix E The request for reconsideration was denied by the Board on the basis that the request was a third request for extension of his grades over which the Board had no jurisdiction. See, Appendix L Howlette thereafter filed this petition with the Court pursuant to the Rules and the Court s Constitutional authority over the Florida Bar. 3. Disposition in the Lower Tribunal. The Florida Board of Bar Examiners denied Howlette s request for extension of bar exam grades. 6

SUMMARY OF ARGUMENT The Supreme Court has exclusive, original jurisdiction pursuant to Art. V 15 of the Florida Constitution over the process of the admission of Howlette to the Florida Bar. The standard of review should be de novo as the decision of the Board was obviously made without any consideration of the issue of good cause, or the Board was silent as to any factual findings it made. As such, Board s decision is analogous to a conclusion of law and the review is de novo. The Board s decision is clearly erroneous and inequitable based upon the particular facts of the case. The Rule regarding the extension of bar exam grades requires a showing of good cause which is based upon the peculiar facts and circumstances of each case. The peculiar facts of Howlette s case show that there was unreasonable delay by the Board in conducting its investigation of Howlette. All the while Howlette maintained his efforts to keep his knowledge of the law fresh. Adding the fact of his proven rehabilitation in both Florida and New York, it is clear that the Board s denial out-of-hand of the request for an extension was clearly erroneous. The Court should grant an extension until the Court has received and acted upon the Board s recommendation. 7

ARGUMENT ISSUE I. WHETHER HOWLETTE IS ENTITLED TO AN EXTENSION OF HIS BAR EXAM GRADES UNTIL THE COMPLETION OF THE ADMISSIONS PROCESS PURSUANT TO RULE 4-18.2? 1. Jurisdiction. Howlette seeks an extension of his bar exam grades based upon good cause as provided in Rule 4-18.2. This is a case of Supreme Court s original, exclusive jurisdiction pursuant to Article V, Section 15 of the Constitution of the State of Florida, and the Court s review of Board actions in administering the Court s authority pursuant to Rule 2-30.2 2. Standard of Review. Given that the issue in this case turns on the Board s denial of a good cause extension of Howlette s bar exam grades pursuant to Rule 4-18.2, the Board will probably argue that the standard of review would be the abuse of discretion standard. State v. Boyd, 846 So.2d 458 (Fla. 2003) However, the abuse of discretion standard is based upon the lower tribunal being in the best position to weigh the equities involved in decisions made on a case-bycase manner. Yet, in this particular case the Board did not weigh any evidence, take any testimony or make any factual or legal findings. For all intents and purposes the Board simply declined to consider the good cause argument of Howlette. 8

In Holland v. Gros, 89 So.2d 255 (Fla. 1956) the Supreme Court held that, A finding which rests on conclusions drawn from undisputed evidence, rather than on conflicts in the testimony, does not carry with it the same conclusiveness as a finding resting on probative disputed facts, but is rather in the nature of a legal conclusion. As with a legal conclusion by a lower tribunal, the standard of review should be de novo and the Court may find that the Board s denial was clearly erroneous under the particular facts and circumstances of this case. In addition, in matters of admission to the Bar the Court need not be precluded from reviewing the factual underpinnings of the Board's recommendation based on the Court s independent review of the record. Florida Bd. of Bar Examiners re M.B.S., 955 So.2d 504,508 (Fla. 2007.) So, Howlette submits that the standard is de novo and that the Court has the inherent authority and duty to make an independent review of the record and any weigh the equities of this case which will lead but to one conclusion that the summary denial of the extension was clearly erroneous. 3. Issue I. a. Introduction. Rule 4-18.2 requires good cause for an extension of bar exam grades. This Court has held that, The determination of good cause is based on the peculiar facts and circumstances of each case. State v. Boyd, 846 So.2d 458 (Fla. 2003) 9

Good cause has been held by the Court to require a substantial reason for an extension. State v. Boyd, supra at 459 The facts of the instant case show that there are numerous, substantial reasons in favor of an extension of Howlette s grades. First, Howlette was at a complete disadvantage during the admission process because the Board took an unreasonable time to conclude what was supposed to be a supplemental investigation, and Howlette had no ability to expedite the investigation process. Second, Howlette would show that he has kept as abreast of the law as well as any reasonably prudent applicant could be expected, and that sitting again for the bar exam is would not be the best way for Howlette to enhance his continuing legal education. Finally, Howlette has proven his rehabilitation twice before once in New York and once in Florida. In all likelihood Howlette is on the verge of another favorable recommendation by the Board. b. Extension of Bar Grades. By way of a brief history of Howlette s quest to be admitted to the Bar, Howlette applied for admission to the Florida Bar in 2002. In February, 2003, Petitioner passed both parts of the Florida Bar Exam and had previously obtained a passing score on the MPRE. These items are previously filed with the Court in Case SC05-287. After a public hearing in November of 2004, the Board recommended that Petitioner be admitted as a member of the Florida Bar. See, 10

Appendix B However, on June 17, 2005, the Supreme Court denied Petitioner s admission emphasizing the fact that Howlette was a disbarred attorney in the state of New York and holding that the Court did not want Florida... to become a haven for disbarred attorneys. Fla. Board of Bar Examiners re: Higgins, 772 So.2d 486 (Fla. 2000). See, Appendix C Howlette thereafter applied and was reinstated as a member in good standing of the New York Bar in 2007, after which Howlette began the necessary steps to re-apply to the Florida Bar. The Board s uncertainty of how to handle Howlette s application precipitated another petition to this Court that was resolved by a ruling that Howlette could re-apply to the Bar subject to the provisions of the Rules relating to the admission of disbarred attorneys. See, Appendix G Howlette re-applied and the investigatory process ensued. c. Unreasonable Delay by the Board. Petitioner s application was filed in late 2007 and finalized by June of 2008. This would mean that the investigative process should have been concluded by March of 2009. See, Rule 3-40.2 In spite of the nine-month time requirement of Rule 3-40.2, and in spite of the fact that the investigation of Howlette was only a supplemental investigation since his initial application in 2002, the admissions process is still ongoing at the time of the filing of this brief. 11

From all appearances the Board only began its investigation in earnest just before the nine month deadline by waiting until late February and March of 2009 to send Petitioner extensive requests for information. Howlette promptly provided information in a timely manner, even traveling to the State of New York to obtain copies of various court findings that were obtainable only by searching court files in New York. The delays in the investigation appear even more inequitable in light of letters sent by the Board to Petitioner in December of 2008 and January of 2009, just two months earlier, stating that there were no outstanding matters remaining at that time. See, Appendix K There is no dispute that Howlette fully and promptly complied with veritable stream of sequential information requests from the Board. However, by May of 2009, there was no end in sight stimulating Howlette s attorney to write the Board requesting that the investigation be expedited and expressing deep concern for the prospect that the process might extend beyond Howlette s grade eligibility. See, Appendix A By October of 2009, it was obvious that another extension of bar exam grades was necessary giving rise to the second request for an extension and the denial thereof by the Board. d. Continuing Legal Education. In order to document that Howlette has stayed abreast of the legal 12

environment, Howlette provided the Board with documentation that since earning passing scores on the Florida Bar Exam he had continued his continuing legal education notwithstanding his disbarment. For example, Howlette supplied the Board with documentation that, while employed with the Florida House of Representatives as a Legislative Assistant and Legal Analyst for the House Education Committee, he completed courses offered by the House Administration acceptable by the Florida Bar as continuing legal education courses and forwarded proof of same to the Board. Exhibits were attached to the request to the Board for an extension showing the Board s stamp indicating the proof of courses taken were received, and showed other approved courses taken that were not sent to the Board. See, Appendix E As set forth in the Petition, Howlette is proficient in family law matters having represented himself in cases involving his former wife and children both in New York and Florida courts. Specifically in the past four years as a pro se litigant Petitioner has researched Florida and New York cases, prepared summonses, petitions, verified answers, counterclaims, replied to counterclaims, prepared affirmations in opposition to motions, written legal briefs in a support proceeding that commenced in New York in 2005 and concluded with a favorable decision in Hernando County in April, 2009 (most if not all of the documents are in the Board s file). 13

Howlette is knowledgeable in the use of Westlaw, LexisNexis and other online legal material, as well as being familiar with Mathew Bender s New York Civil Practice, the Uniform Interstate Family Support Act, and the New York Family Court Act. Howlette has access to the facilities and materials of a law firm and stays informed on recent changes in the law and court procedure. Howlette presently prepares monthly Judicial Reports for the Court as a volunteer Guardian Ad Litem for the Circuit Court of the Fifth Judicial District, Hernando County. He has been doing same for the past two years. If the reason for denial was failure to maintain legal continuing education the Board s decision was clearly erroneous. e. Howlette Has Proven Rehabilitation. Howlette has previously demonstrated he can meet his burden of proof of rehabilitation by showing clear and convincing proof of rehabilitation and obtaining a recommendation for admission. Howlette s position has dramatically changed in that he is no longer disbarred in New York and has no reason to believe he will not be recommended after his appearance at the public hearing scheduled for May 15, 2010. See, Appendix J CONCLUSION Howlette has in no way delayed the process and has acted diligently at each stage of the process. Petitioner has no control over the investigative process and 14

the scheduling process and should not be penalized as a result of same. Petitioner has kept abreast of the legal environment and will be a knowledgeable asset to the legal profession, and Howlette has proven his rehabilitation not once, but twice. Petitioner is not seeking a second two (2) year extension of grades but only a reasonable extension of time to allow for the completion of the process that has commenced should be final in a few months after the May 14-15, 2010, public hearing. For the foregoing reasons, Howlette would respectfully request that the Court enter an order extending Petitioner s Florida Bar Exam scores and MPRE score for a reasonable period of time to include the inclusion of (1) the conduct of the Public Hearing that has been scheduled by the Board for May 14-15, 2010; (2) time to allow the Board to forward its recommendation to the Supreme Court, and (3) time for the Supreme Court to render a decision based on that recommendation all of which are out of the control of Petitioner. Dated: Respectfully submitted, JOHNNIE B. BYRD, JR., ESQUIRE FBN: 227269 206 North Collins Street Plant City, Florida 33563 Telephone: 813.759.1224 Fax: 813.759.1101 Email: johnnie@byrd-law.com Attorney for Petitioner 15

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Initial Brief has been furnished to Thomas A. Probjecky, Esquire, at the Florida Board of Bar Examiners, 1891 Eider Court, Tallahassee, FL 32399-6572, by U.S. Mail this 24th day of March, 2010. JOHNNIE B. BYRD, JR., Esq. Counsel for Petitioner CERTIFICATE OF TYPE, SIZE, STYLE Undersigned counsel does hereby certify that Howlette s Initial Brief is submitted in 14 point proportionately spaced Time New Roman font as required by Rule 9.120(a)(2) of the Florida Rules of Appellate Procedure. JOHNNIE B. BYRD, JR., ESQ. Counsel for Petitioner 16

INDEX TO THE APPENDIX A. Letter to Board (Exhibit P to Howlette s Petition herein) B. Board of Bar Examiners Public Report and Recommendation C. Order of Florida Supreme Court Denying Admission D. Petitioner s Request for Second Extension of Grades E. Petitioner s Request for Reconsideration of Denial of Second Extension F. Board s Denial of Request for Second Extension of Grades G. Sup. Ct. Order re: Permission to Apply for Admission to Florida Bar H. First Extension of Grades by Florida Bd. of Bar Examiners I. Notice of Scheduling Investigative Hearing for 11-13-09 J. Notice of Scheduling of Public Hearing for May 14-15, 2010 K. Letters from Board in December of 2008 and January of 2009 L. Notice of Board Denial of Reconsideration M. Chronology 17