Bailey v. Board of Law Examiners of State of Tex.

Decision Date22 December 1980
Docket NumberNo. EP-80-CA-324.,EP-80-CA-324.
Citation508 F. Supp. 106
PartiesGary W. BAILEY, Plaintiff, v. BOARD OF LAW EXAMINERS OF the STATE OF TEXAS, Defendants.
CourtU.S. District Court — Western District of Texas

R. Don Thorne, El Paso, Tex., for plaintiff.

Mark White, Atty. Gen., John W. Fainter, Jr., First Asst. Atty. Gen., Richard E. Gray, III, Executive Asst. Atty. Gen., Paul R. Gavia, Chief, State & County Affairs, Susan O. Bradshaw, Asst. Atty. Gen., Austin, Tex., for defendants.

MEMORANDUM OPINION AND ORDER OF DISMISSAL

HUDSPETH, District Judge.

Gary W. Bailey, Plaintiff herein, has brought suit against the Board of Law Examiners of the State of Texas under 42 U.S.C. § 1983. Jurisdiction is claimed pursuant to 28 U.S.C. §§ 1343(3) and 2201. Plaintiff alleges that Defendant's refusal to recommend him for licensing as a member of the bar of the State of Texas under Rule X(c) of the Rules Governing Admission to the Bar of Texas violates his Fourteenth Amendment rights to due process and equal protection. Rule X(c) provides:

"To pass the bar examination, the applicant must make an average grade of 75 on the entire examination."

Plaintiff has taken the examination three times but has failed to achieve a score of 75 on any one examination. However, he alleges that if only his high scores on individual sections within each examination are considered, then he has achieved scores sufficiently high to bring his overall average above 75.

He further alleges that he has been unconstitutionally denied an official regrade of his last bar examination. He contends that Defendant has a policy of granting official regrades if the applicant scores 73 or better; that his mathematical score on the February 1980 examination was 72.66; but that his grade was reported as a 72 and regrading was denied. Plaintiff seeks to have the Board's policy of dropping decimal points declared unconstitutional; have his 72.66 rounded up to 73, and then have his examination officially regraded. The significance of the official regrade lies in what Plaintiff alleges to be an unofficial Board policy of consistently finding enough extra points to raise the examinee's grade to 75.

The Defendant moves to dismiss on two grounds: (1) that the Court lacks subject matter jurisdiction, and (2) that the Plaintiff has failed to state a claim upon which relief can be granted.

A. SUBJECT MATTER JURISDICTION.

The admission of applicants to the bar of a state is a matter for state regulation. Brown v. Board of Bar Examiners of the State of Nevada, 623 F.2d 605, 609 (9th Cir. 1980). The only limitation upon the state's exclusive right to admit or deny admission to applicants must be based upon the Constitution. States cannot exclude applicants in a manner or for reasons that violate the Fourteenth Amendment, nor impose qualifications which lack a rational connection with the applicant's fitness to practice law. Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957); Brown v. Board of Bar Examiners of the State of Nevada, supra. It has been held that federal district courts lack subject matter jurisdiction over the challenge of an individual applicant to the refusal of a state supreme court to admit him to law practice. Brown v. Board of Bar Examiners of the State of Nevada, supra; Doe v. Pringle, 550 F.2d 596, 599 (10th Cir. 1976), cert. denied 431 U.S. 916, 97 S.Ct. 2179, 53 L.Ed.2d 227 (1977); Feldman v. State Board of Law Examiners, 438 F.2d 699, 704 (8th Cir. 1971). District Court are not appellate courts, and only the United States Supreme Court can review the judicial acts of a state supreme court. Doe v. Pringle, supra. This Court, therefore, lacks jurisdiction to review the decisions of the Board or the Supreme Court of Texas as to Bailey's individual test results, or to order that he individually be admitted to the bar of Texas. It remains to be determined whether or not the Plaintiff's challenge to the Rules Governing Admission to the Bar of Texas, promulgated by the Supreme Court of Texas, can survive a motion to dismiss for failure to state a claim.

B. THE CONSTITUTIONAL CLAIMS.

Plaintiff contends that certain of the Rules Governing Admission to the Bar of Texas are unconstitutional, not only as applied to him, but in their effect upon all others who fall under them. This Court does have jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 to determine whether generally applicable rules and procedures for admission to the Bar impinge upon constitutionally protected rights. Brown v. Board of Bar Examiners of the State of Nevada, supra at 609-610.

The Plaintiff first contends that Rule X(c) is so vague and overbroad that it violates the Fourteenth Amendment due process and equal protection clauses. This contention is without merit. The Texas Supreme Court has determined that every candidate for bar admission must take an examination, and, to achieve a passing grade, must score enough points on each section thereof that when the scores are averaged, they equal 75 or better. The rule is clear and specific, and does not violate the Fourteenth Amendment.

Plaintiff further argues, however, that an examinee who fails to pass one examination should nevertheless receive credit on a subsequent examination for sections upon which he did receive a passing grade, and that to do otherwise deprives him of due process and equal protection. It should be noted that this procedure has been tried and discarded in Texas. See Huber and Myers, Admission to the Practice of Law in Texas, 15 Houston Law Review 485, 513 n. 193 (1978). In any event, a similar claim has been considered by the Fifth Circuit and decided adversely to the Plaintiff. Davidson v. State of Georgia, 622 F.2d 895, 896 (5th Cir. 1980). Plaintiff has failed to make out a claim of due process or equal protection violation.

Plaintiff also claims that he has invested time and money in preparation to be a lawyer, and that the Rules as promulgated and as applied by Defendant deprive him of the constitutional right to practice his chosen profession. There is, however, no constitutional right to practice law without passing an examination. Attwell v. Nichols, 608 F.2d 228, 230 (5th Cir. 1979). States have the right to regulate admission to the bar, Schware v. Board of Bar Examiners of New Mexico, supra, and the Constitution prohibits only those requirements having no rational connection with the applicant's fitness or capacity to be a lawyer. Attwell v. Nichols, supra.

The Plaintiff further argues that Texas has not chosen the least restrictive manner of assuring the competence of the bar. He points to Article 307B, Tex.Rev.Civ.Stat. Ann.,1 as an alternative and less restrictive means of assuring the quality of the bar and claims that he is denied equal protection of the law by not being allowed to benefit from that statute.

First, a state is not required to choose the least restrictive qualifications, but need only choose such restrictions as are rationally related to the state's goal of ensuring a competent bar. Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975), cert. denied 426 U.S. 940, 96 S.Ct. 2660, 49 L.Ed.2d 393 (1976). That the examination administered to candidates to the bar is rationally related to the state's legitimate goal of assuring a competent bar is settled. See Tyler v. Vickery, supra, 517 F.2d at 1102. That the exemption granted to members of the armed forces or the merchant marine whose legal education has been interrupted during World War II or national emergency meets the "rational relationship" test is less clear. However, since the exemption applies only to graduates from approved schools in Texas who had done the pre-service work in an approved school in Texas, this Court cannot say that the exemption is totally unrelated to a state goal. The Supreme Court of Texas can be presumed to be knowledgable as to the level of competence necessary to successfully complete course work in approved law schools located within the State of Texas.

Second, Plaintiff has not alleged that he could be exempted from examination under Article 307B. In actuality, he could not qualify under Article 307B, even had his studies been interrupted during World War II or time of national emergency, because he did not graduate from any law school in Texas, but from Louisiana State University, a law school over which the Supreme Court of Texas can exercise no supervision. It cannot be...

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