Levanti v. Tippen

Decision Date07 May 1984
Docket NumberCiv. No. 83-1654-T.
Citation585 F. Supp. 499
PartiesJohn Charles LEVANTI, Plaintiff, v. James B. TIPPEN, et al., Defendants.
CourtU.S. District Court — Southern District of California

John Charles Levanti, pro se.

Herbert M. Rosenthal, Marie M. Moffat, San Francisco, Cal., Robert M. Sweet, Los Angeles, Cal., for defendants.

MEMORANDUM OF DECISION

TURRENTINE, District Judge.

Plaintiff, who represents himself, is an attorney admitted to the practice of law in Connecticut and Rhode Island. Plaintiff applied and was certified by the California Committee of Bar Examiners ("the Committee") to be an attorney applicant for the July, 1982 bar examination. Plaintiff received the "Attorneys' Exam Policy Statement" from the Committee. Plaintiff was thereby informed of his option to take either the General Bar Examination ("GBE"), consisting of the Multistate Bar Examination ("MBE") and nine essay questions, or the Attorneys' Examination, which consists solely of the essay portion of the GBE. Plaintiff was further notified that:

For the past several examinations, the passing rate has been higher on the MBE than on the Essay Examination. Statistically, then, the attorney applicant should take the GBE (both Essay and MBE) as there is a better than even chance the MBE score will raise the grade assigned to his/her performance.

The Policy Statement did not explain the Phase I grading process discussed below.

Plaintiff chose to take the July, 1982 Attorneys' Exam and did so. He received a grade of 69.4%. A score of 70% was the minimum passing grade. Plaintiff was not certified by the Committee for admission to the legal profession in California on the ground that he failed the bar exam. An explanation of the phased grading system used to assess the July, 1982 bar exam was routinely enclosed with the letter sent to the plaintiff informing him that he had failed the exam.

Phase I of that process involves the grading of only the MBE and three of the nine essays. If an applicant scores high enough on this abbreviated review, he passes without having his other essays read. A handful of borderline applicants pass in this manner when they would have failed if their exams were fully examined. Since he did not take the MBE portion of the exam, Levanti's exam was ineligible for Phase I grading.

Plaintiff wrote to the Committee and requested a refund of his exam fee and the "formation sic of a statistical equation" which would place attorney examinees "in parity" with those who took the GBE and were eligible for Phase I grading. Apparently, plaintiff would have the Committee toss a calculated uncertainty factor into the grading of attorney exams or conduct a lottery so that he would have some sort of "wild card" chance of passing an exam he has failed.

Plaintiff filed a petition with the Committee in which he presented the gist of the constitutional arguments raised in Counts I, II and III of his complaint. That petition was considered and denied. Mr. Levanti thereupon filed a petition for a writ of review in the California Supreme Court pursuant to Cal.Bus. & Prof.Code § 6066. He raised his constitutional arguments again and the issues were fully briefed by plaintiff and the State Bar of California. On May 25, 1983, the California Supreme Court denied Levanti's petition.

Plaintiff then sought relief in this Court by filing an action against the State Bar and the Committee of Bar Examiners, seeking injunctive relief as well as almost $2,000,000 in compensatory and punitive damages. The Court dismissed that action for lack of subject matter jurisdiction under the Eleventh Amendment to the Federal Constitution on November 2, 1983. Plaintiff was given leave to amend.

Levanti filed an amended complaint, naming individual members of the State Bar and the Committee in their official capacities. Defendants moved to dismiss on a variety of jurisdictional and substantive grounds. Since arguments advanced by the parties in respect to the defendants' motion to dismiss made use of material outside the pleadings—specifically facts in the affidavit of Jane Peterson Smith, the Director of Examinations for the Committee —the Rule 12(b)(6) motion was converted by the Court into a Rule 56(c) motion. See 5 C. Wright & A. Miller, Federal Practice & Procedure § 1366 (1969). The parties were given an additional five weeks in which to prepare arguments pertaining to the summary judgment motion, with particular attention to the substantive constitutional challenges raised in Counts I, II and III of the amended complaint.

Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is clearly entitled to prevail as a matter of law. The evidence and pleadings in such a case are to be construed in favor of the party opposing the motion. Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 677 (9th Cir.1984). Most of the issues before this Court are purely "legal" ones such as subject matter jurisdiction, which are properly resolved at this point in the proceedings. Plaintiff's constitutional challenges to the Phase I grading process used by the defendants are also ripe for review, as there are no material factual disputes over the mechanics of the process or the information that plaintiff was provided about that process or the information that plaintiff was provided about that process prior to sitting for the exam. There are merely disagreements as to the ramifications of certain facts. For example, the parties agree that Levanti received a score of 69.4% on his exam. Defendants characterize this as a failing grade, since the minimum passing grade is 70%. Levanti, for reasons of his own, prefers to characterize his grade as "neither passing nor failing," despite the fact that it was the basis for denying his application for admission to the California Bar. No trial is required to resolve disputes of this sort.

Plaintiff's claim that further discovery is needed before a Rule 56 motion may be considered is without merit. All of the relevant information which Levanti seeks in his interrogatories has already been provided in the sworn affidavits of Jane Peterson Smith, the Director of Examinations. Plaintiff objects that these declarations were not made under oath, an assertion belied by the recitations of the affidavits themselves. In any event, "neither a desire to cross-examine an affiant nor an unspecified hope of undermining ... her credibility suffices to avert summary judgment." National Union Fire Insurance Co. v. Argonaut Insurance Co., 701 F.2d 95, 97 (9th Cir.1983).

The clash over the constitutional challenges to Phase I grading revolves not about the facts of the grading process but about the constitutionality of its impact on non-resident attorney applicants to the bar. Sufficient uncontested facts are before the Court to justify consideration of a motion for summary judgment.

I. SUBJECT MATTER JURISDICTION.

Defendants move to dismiss the complaint for lack of subject matter jurisdiction. Resolution of this issue requires a careful examination of just what Levanti seeks to achieve in this action. The plaintiff attacks both the decision which denied him admission to the bar, and the general rules of Phase I grading. He has repeatedly asserted that his own admissions decision is not in issue, yet his submissions to this Court belie that statement. First, Levanti seeks some sort of "statistical equation" which would alter the results of the July, 1982 bar examination. See, e.g., Count I, ¶ 12. Second, he seeks a new hearing before the Committee of Bar Examiners on his complaints. See, e.g., Count V, ¶ 12. Seeking retroactive implementation of procedures leading to admission under the same facts previously presented to the California Supreme Court, and requesting a second hearing before the Committee on identical issues and facts are unmistakeably efforts to have this Court review the decision of the state supreme court to deny Levanti's application for admission.

The defendants would have this Court believe that admission to the California Bar is all the plaintiff is after. Levanti, of course, characterizes his complaint differently; not as an attack on his own admission decision, but as a constitutional assault on the State Bar's grading scheme, brought on behalf of himself and all other similarly situated non-resident attorney applicants. Plaintiff proceeds pro se in this action, and since he is not admitted to practice law in this state he cannot possibly be representing anyone else, despite his statements to this Court of his intentions to share his damage award with others.

Attempts to characterize this action as either a frustrated applicant's appeal for review or a constitutional attack on the state's general rules governing bar admissions miss the point. Plaintiff and defendants are each half-right in this regard, because the instant lawsuit is a hybrid. We are fortunate in having fresh and unambiguous guidance in this area from the Supreme Court.

United States District Courts ... have subject matter jurisdiction over general challenges to state bar rules, promulgated by state courts in non-judicial proceedings, which do not require review of a final state court judgment in a particular case. They do not have jurisdiction, however, over challenges to state court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court's action was unconstitutional. Review of those decisions may be had only in this Court.

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 1317, 75 L.Ed.2d 206 (1983); see also Tofano v. Supreme Court of Nevada, 718 F.2d 313, 314 (9th Cir.1983).

In Feldman, frustrated bar applicants sought declaratory and injunctive relief which would have compelled their admission to the bar or allowed them to sit for the exam. They attacked both the general rule requiring graduation from an...

To continue reading

Request your trial
17 cases
  • HERMANDAD-UNION DE EMPLEADOS DEL FONDO v. Monge
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • June 10, 1985
    ...570 F.Supp. 3, 4-5 (N.D.Ga. 1983); Mattas v. Supreme Court of Pennsylvania, 576 F.Supp. 1178 (W.D.Pa.1983); Levanti v. Tippen, 585 F.Supp. 499, 502-03 (S.D.Calif.1984); Rogers v. Supreme Court of Virginia, 590 F.Supp. 102 (E.D.Va.1984). The former request, that this Court declare that Rule ......
  • Alberti v. County of Nassau
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 30, 2005
    ...v. N.C. Agric. & Technical State Univ., No. 04 Civ. 1203, 2005 WL 2136923, at *9 (M.D.N.C. Aug. 05, 2005); and Levanti v. Tippen, 585 F.Supp. 499, 503-04 (S.D.Cal.1984). To the extent that the Plaintiffs are similarly purporting to state a cause of action solely for the "violation of 42 U.S......
  • Feliciano v. Tribunal Supremo De Puerto Rico
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • September 30, 1999
    ...Court of Va. v. Consumers Union of the United States, 446 U.S. 719, 734, 100 S.Ct. 1967, 1976, 64 L.Ed.2d 641 (1980); Levanti v. Tippen, 585 F.Supp. 499, 503 (S.D.Ca. 1984). D. Claims for equitable relief against government officials in their official Plaintiff's remaining claims are for eq......
  • Nat'Lass'N v. Berch
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • September 19, 2013
    ...... See Levanti v. Tippen, 585 F.Supp. 499, 503 (S.D.Cal.1984) (district court lacks jurisdiction to review denial of admission which amounts to an “as-applied” ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT