Brown v. Board of Bar Examiners of State of Nev.

Decision Date18 July 1980
Citation623 F.2d 605
PartiesAnna Lee BROWN, Plaintiff-Appellee, v. BOARD OF BAR EXAMINERS OF the STATE OF NEVADA and Board of Governors of the State Bar of Nevada et al., Defendants-Appellants. CA 79-4529.
CourtU.S. Court of Appeals — Ninth Circuit

Eleissa C. Lavelle, Las Vegas, Nev., argued, for defendants-appellants.

Robert J. Angres, Incline Village, Nev., argued, Robert J. Angres, Incline Village, Nev., on brief, for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before WRIGHT and POOLE, Circuit Judges, and CRAIG, * District Judge.

POOLE, Circuit Judge.

The Board of Bar Examiners of the State of Nevada and the Board of Governors of the State Bar of Nevada appeal from the issuance of a preliminary injunction compelling them to administer the 1979 bar examination to appellee Anna Lee Brown. In February 1979, Brown applied for admission Brown thereupon filed suit against the two appellants herein and the Nevada Supreme Court in United States District Court, alleging that they had applied Rule 51(3) arbitrarily, capriciously and unequally. By way of relief the complainant prayed that she be allowed to sit for the 1979 Nevada bar examination; that her application be processed in like manner as all other applications; and that she be awarded monetary damages and attorney fees. Jurisdiction was predicated upon 28 U.S.C. § 1343, and 42 U.S.C. §§ 1981 and 1983. By separate motion filed June 27, 1979, plaintiff sought a preliminary injunction prohibiting defendants from refusing to allow her to take the scheduled July 25th examination. All three defendants moved to dismiss for lack of subject matter jurisdiction; appellants additionally moved for dismissal on the ground that they were not proper parties to the action.

                to the State Bar of Nevada, 1 but her application was rejected because, as a graduate of a correspondence law school not accredited by the American Bar Association, she failed to comply with Nevada Supreme Court Rule 51(3).  2  In May, Brown submitted a petition and supporting documents to the Nevada Supreme Court requesting a waiver of its Rule 51(3); her petition was denied without elaboration on June 7, 1979
                

On July 17, 1979, the district court issued findings of fact and conclusions of law and a written memorandum of decision, and also ordered entry of a preliminary injunction. 3 The court concluded that federal jurisdiction existed to entertain plaintiff's challenge to the Nevada Supreme Court's administration of its rule. It further found a violation of due process due to the fact that the Supreme Court had granted certain petitions for waiver and had denied others without "indicat(ing) a rational basis upon which it exercises its discretion in this regard . . .." 4 Citing this Court's opinion in Hackin v. Lockwood, 361 F.2d 499 (9th Cir.), cert. denied, 385 U.S. 960, 87 S.Ct. 396, 17 L.Ed.2d 305 (1966), the court dismissed the Board of Governors and the Board of Bar Examiners as improper parties because they performed only ministerial duties in administering Rule 51(3). The preliminary injunction enjoined "defendants," collectively, from preventing Brown from sitting for the bar examination which was to commence on July 25.

On July 24, appellants sought from this Court a writ of prohibition, which was denied on July 26 on the basis that appellants enjoyed an adequate remedy at law. Appellants then filed the instant appeal. Brown took the examination and received a passing score. 5

We conclude that the preliminary injunction was improperly granted because the district court was without jurisdiction to review a decision of the Nevada Supreme Court concerning an individual application for admission to the bar. Accordingly, we reverse.

PROPER PARTY ON APPEAL

As an initial matter, we must determine whether the State Bar and the Board of Bar Examiners have standing to pursue this appeal. Brown urges that once dismissed from the action as improper parties under Hackin v. Lockwood, supra, 6 appellants were deprived of their standing to seek review of the injunction in this Court.

Although purporting to eliminate appellants from the suit, the district court nevertheless granted injunctive relief against them. The court ordered the "defendants" to allow Brown to sit for the bar examination, an order with which under Nevada practice only the appellants could physically comply. 7 The injunction was not explicitly directed toward the Nevada Supreme Court nor did it command any action by that body.

Ordinarily, as parties specifically bound under the terms of a preliminary injunction, appellants could avail themselves of interlocutory appellate review pursuant to 28 U.S.C. § 1292(a)(1). We see no logic in the district court's novel rulings which concurrently dismissed appellants and yet granted specific relief against them. Whatever the rationale, however, appellants should not be denied appellate review of orders by which they were aggrieved. To hold otherwise would be to compel them to risk contempt. Whether appellants could challenge the district court's jurisdiction on appeal of a contempt citation is doubtful. See Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967); United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947). In any event, the jurisdictional issue should be settled directly by the orderly process of review, not tangentially by disobedience. Carroll v. President and Commissioners of Princess Anne, et al., 393 U.S. 175, 179, 89 S.Ct. 347, 350, 21 L.Ed.2d 325 (1968); Bethlehem Mines Corp. v. United Mine Workers, 476 F.2d 860, 863 (3rd Cir. 1973).

We conclude that appellants are appropriate parties to appeal an injunction by which they are specifically bound.

MOOTNESS

Brown argues that, since the bar examination has already been conducted and the object of the injunction thus has been effected, this appeal is moot. Her successful performance on the examination is indeed an accomplished fact which cannot be undone, but the appeal can be entertained nonetheless.

A potential applicant for admission to the bar would not become aware of the Nevada Supreme Court's denial of a waiver petition and consequently could not seek relief in court earlier than a few weeks before the examination. As a result, appellate review of any court order purporting to require that an applicant be permitted to take the examination could in most instances not practically be obtained until after the examination had been administered. The effect would thus be orders "capable of repetition, yet evading review." 8 Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). In similar situations, the Supreme Court has held that such cases are not moot, despite the fact that the need for specific relief may have been obviated. E. g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953).

More importantly, the underlying dispute over the district court's jurisdiction still survives.

We do not here have a situation in which one party has voluntarily abandoned its previous stance. Cf. Church of Scientology of Hawaii v. U. S., 485 F.2d 313 (9th Cir. 1973). To the contrary, appellants administered the examination to Brown pursuant to the district court's order, while protesting explicitly that the court lacked power to issue the injunction. They have consistently maintained their position that Brown had no recourse to federal district court, and the controversy is moot only in the limited sense that Brown has obtained the particular equitable relief which she sought as a necessary first step toward a larger goal.

This case presents a factual context analogous to Carroll v. Princess Anne, supra, in which petitioners were restrained by a state court from conducting a rally for ten days. By the time appellate review could be had, of course, the order had by its own terms expired. The Supreme Court nevertheless decided that the case was not moot, since the dispute which gave rise to the order was still unresolved: "whether, by what processes, and to what extent the authorities of the local governments may restrict petitioners in their rallies and public meetings." Id., 393 U.S. at 179, 89 S.Ct. at 350. This conclusion, that the issue was not moot, was seen by the Court as particularly appropriate in the context of an injunction, where proper procedure is to seek judicial review rather than risk contempt. See Walker v. City of Birmingham, supra. The instant case is likewise amenable to adjudication by this Court because it involves an ongoing issue of federal court jurisdiction and of federal-state relationships, the consideration of which should not be defeated by a short-term order which state officials are constrained to obey rather than be held in contempt. As in Carroll v. Princess Anne, the crucial question persists: "whether, by what processes and to what extent" a federal court may intervene in the procedure by which states admit attorneys to the practice of law.

SUBJECT MATTER JURISDICTION

Admission of applicants to the bar of a state is a matter of local concern, governed in Nevada by rules and regulations promulgated by the judicial branch. The only constraints on the states' exclusive jurisdiction are constitutional in nature: a person may not be excluded from the practice of law in a manner or for reasons which contravene the Fourteenth Amendment, nor can the state court impose qualifications which lack "a rational connection with the applicant's fitness or capacity 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).

Since federal courts are granted jurisdiction under 28 U.S.C. § 1343 to vindicate constitutional rights, an issue arises as to the extent of a federal court's...

To continue reading

Request your trial
48 cases
  • Beller v. Middendorf, s. 77-1354
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 23, 1980
    ...sufficient to justify our conclusion that a live case or controversy exists in all three appeals. 7 See also Brown v. Board of Bar Examiners, 623 F.2d 605, 607-608 (9th Cir. 1980) (appellate review of order requiring that applicant be permitted to take bar examination cannot practically be ......
  • Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 22, 1990
    ...from appealing the district court's judgment. Zenith Radio Corp., 395 U.S. at 110, 89 S.Ct. at 1569; Brown v. Board of Bar Examiners of State of Nevada, 623 F.2d 605, 608 (9th Cir.1980). If the record discloses that the district court lacked jurisdiction over the party, the appellate court ......
  • Feldman v. Gardner, s. 78-2235
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 28, 1981
    ...the administration of Rule 64 I(b) and the validity of the rule itself. These cases thus differ from Brown v. Board of Bar Examiners of the State of Nevada, 623 F.2d 605 (9th Cir. 1980), which held the district court to be without jurisdiction to entertain a challenge to a state court's dec......
  • Hoxworth v. Blinder, Robinson & Co., Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 9, 1990
    ...v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984) (summarizing standing requirements); Brown v. Board of Bar Examiners, 623 F.2d 605, 608 (9th Cir.1980) (dismissed party has standing to appeal injunction by which it is specifically bound).13 Appellants assert further......
  • 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