Bailey v. Board of Law Examiners of State of Tex., No. EP-80-CA-324.

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Writing for the CourtHUDSPETH
Citation508 F. Supp. 106
PartiesGary W. BAILEY, Plaintiff, v. BOARD OF LAW EXAMINERS OF the STATE OF TEXAS, Defendants.
Docket NumberNo. EP-80-CA-324.
Decision Date22 December 1980

508 F. Supp. 106

Gary W. BAILEY, Plaintiff,
v.
BOARD OF LAW EXAMINERS OF the STATE OF TEXAS, Defendants.

No. EP-80-CA-324.

United States District Court, W. D. Texas, El Paso Division.

December 22, 1980.


508 F. Supp. 107

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.

508 F. Supp. 108

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...

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8 practice notes
  • Practice and procedure: Patent and trademark cases rules of practice; representation of others before Patent and Trademark Office,
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...his examination papers and to compare them with model answers or answers of successful applicants); Bailey v. Board of Law Examiners, 508 F.Supp. 106, 110 (W.D. Tex. 1980); and Singleton v. Louisiana State Bar Ass'n., 413 F.Supp. 1092, 1099-1100 (E.D. La. Limiting access to the questions wo......
  • Part II
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...his examination papers and to compare them with model answers or answers of successful applicants); Bailey v. Board of Law Examiners, 508 F.Supp. 106, 110 (W.D. Tex. 1980); and Singleton v. Louisiana State Bar Ass'n., 413 F.Supp. 1092, 1099-1100 (E.D. La. Limiting access to the questions wo......
  • Scinto v. Stamm, No. 14538
    • United States
    • Supreme Court of Connecticut
    • February 9, 1993
    ...of North Dakota, supra; Petition of Pacheco, 85 N.M. 600, 604, 514 P.2d 1297 (1973); see also Bailey v. Board of Law Examiners of Texas, 508 F.Supp. 106, 108 Page 104 The trial court concluded that "[t]he plaintiff has not submitted any evidence to support his allegations that the [defendan......
  • Lucero v. Ogden, No. 82-1817
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 4, 1983
    ...F.2d 400 (9th Cir.1978); Whitfield v. Illinois Board of Law Examiners, 504 F.2d 474 (7th Cir.1974); Bailey v. Board of Law Examiners, 508 F.Supp. 106 (W.D.Tex.1980); Singleton v. Louisiana State Bar Association, 413 F.Supp. 1092 Not surprisingly, plaintiff relies on that Fourth Circuit deci......
  • Request a trial to view additional results
6 cases
  • Scinto v. Stamm, No. 14538
    • United States
    • Supreme Court of Connecticut
    • February 9, 1993
    ...of North Dakota, supra; Petition of Pacheco, 85 N.M. 600, 604, 514 P.2d 1297 (1973); see also Bailey v. Board of Law Examiners of Texas, 508 F.Supp. 106, 108 Page 104 The trial court concluded that "[t]he plaintiff has not submitted any evidence to support his allegations that the [def......
  • Lucero v. Ogden, No. 82-1817
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 4, 1983
    ...F.2d 400 (9th Cir.1978); Whitfield v. Illinois Board of Law Examiners, 504 F.2d 474 (7th Cir.1974); Bailey v. Board of Law Examiners, 508 F.Supp. 106 (W.D.Tex.1980); Singleton v. Louisiana State Bar Association, 413 F.Supp. 1092 Not surprisingly, plaintiff relies on that Fourth Circuit deci......
  • State v. Niska, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • January 22, 1986
    ...228 (5 Cir.1980), cert. den., 446 U.S. 955, 100 S.Ct. 2924, 64 L.Ed.2d 813 (1980); Bailey v. Board of Law Examiners of State of Texas, 508 F.Supp. 106 (D.C.Tex.1980). Section 27-11-01, as applied in this case, does Page 651 not violate either the Federal or State Constitution. The judgment ......
  • Conrad v. County of Onondaga Exam. Bd. for Plumbers, No. 89-CV-271.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • March 8, 1991
    ...the applicant's fitness or capacity to practice law'" (quoting Schware, supra)); Bailey v. Bd. of Law Examiners of State of Texas, 508 F.Supp. 106, 108-09 (W.D.Tex.1980) ("the Constitution prohibits only those requirements having no rational connection with the applicant's fitness......
  • Request a trial to view additional results
2 provisions
  • Part II
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...his examination papers and to compare them with model answers or answers of successful applicants); Bailey v. Board of Law Examiners, 508 F.Supp. 106, 110 (W.D. Tex. 1980); and Singleton v. Louisiana State Bar Ass'n., 413 F.Supp. 1092, 1099-1100 (E.D. La. Limiting access to the questions wo......
  • Practice and procedure: Patent and trademark cases rules of practice; representation of others before Patent and Trademark Office,
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...his examination papers and to compare them with model answers or answers of successful applicants); Bailey v. Board of Law Examiners, 508 F.Supp. 106, 110 (W.D. Tex. 1980); and Singleton v. Louisiana State Bar Ass'n., 413 F.Supp. 1092, 1099-1100 (E.D. La. Limiting access to the questions wo......

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