Chaney v. State Bar of California, 21402.

• Decision Date: 21 November 1967
• Docket Number: No. 21402.,21402.
• Citation: 386 F.2d 962
• Parties: Jerry D. CHANEY, Appellant, v. The STATE BAR OF CALIFORNIA et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

386 F.2d 962 (1967)

Jerry D. CHANEY, Appellant, v. The STATE BAR OF CALIFORNIA et al., Appellees.

No. 21402.

United States Court of Appeals Ninth Circuit.

November 21, 1967.

Jerry D. Chaney (argued), in pro. per.

O'Melveny & Myers, Philip F. Westbrook, Jr. (argued), Los Angeles, Cal., for appellee.

Before CHAMBERS, Chief Judge, JOHNSEN^* and KOELSCH, Circuit Judges.

JOHNSEN, Senior Circuit Judge.

A law school graduate, not elsewhere admitted to the practice, took the examination required for admission to the California bar and twice failed to pass. He was eligible to take the examination a third time but chose not to do so. Instead, he brought suit under the Civil Rights Act of 1871, 42 U.S.C. § 1983, against the State Bar of California, members of its Board of Governors, and members of its Committee of Bar Examiners, in injunction and damages, for not being certified to the Supreme Court of California for admission.

The District Court dismissed the action and we affirm. We do so on the grounds that the alleged wrong upon which the suit is predicated does not involve any issue of constitutional substance; that, even if it had, this would not enable a suit to be maintained in the situation under the Civil Rights Act; and that it does not otherwise provide basis for any federal claim on which the court could grant relief. It may be observed in this connection that opportunity was accorded appellant to make any amendment or supplement to his complaint that he thought possible, but he stated he had none.

The extent to which federal concern is entitled to exist as to the right to be admitted to the practice of law in a State has been stated by the Supreme Court as follows in Schware v. Board of Bar Examiners of State of New Mexico, 353 U.S. 232, 238-239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796:

"A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment. * * * A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant\'s fitness or capacity to practice law. * * * Even in applying permissible standards, officers of a State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory".

Appellant does not purport to claim, within the conditions of Schware, that there was no basis for the Committee of Bar Examiners' finding that he failed to pass the examinations taken by him. Nor does he purport to claim that the Committee was without basis to find that those whom it certified to the Supreme Court for admission had passed the examination so as to involve invidiously discriminatory action in this respect against him. His primary attack is a general one upon the form or type of examination regularly employed by the Committee and used by it in the two examinations taken by appellant.

The Committee's examinations have in form consisted of sets of questions covering some 24 subjects of the law, calling for discussion or essay answers and thus requiring exercise and demonstration of analytical and reasoning capacity. It admittedly is the form of examination employed generally in the law schools of the country, and the form suggested for bar-admission use in the American Bar Association's Recommended Standards for Bar Examiners (1959), as follows: "The major portion of the Bar examination should consist of questions in the form of hypothetical fact problems requiring essay answers."

Within the recognition contained in Schware of the right of a State to require high standards of relevant qualification for admission to its bar, and in relation to the condition thereof that any such required qualification must however have "a rational connection with the applicant's fitness or capacity to practice law", we are unable to see any possible federal question in the fact of the use by California of the essay-type examination as such. To us it seems patent on its face that California has the right to allow its Committee of Bar Examiners to use such a type of examination in demonstration by those seeking admission to its bar, as a qualification standard, that they have the capacity to analyze general legal situations and to make application thereto of such general legal knowledge as can be expected to be possessed by the graduates of accredited law schools. The existence of this qualification certainly has a rational connection with the capacity to practice law, for it inherently is the primary basis of general legal service. And of course there also is involved in such an essay examination an indication as to the possession or lack of knowledge in the legal fields to which the questions relate.

There can therefore exist no constitutional substance in such theoretical attacks of appellant as that essay-type examinations are fundamentally unfair and improper, because the grading thereof is a matter of subjective evaluation by the examiner so that the marks given can and are likely to turn on how closely the applicant's discussion and solution correspond with the examiner's personal views or legal philosophy; that within the discretionary range which is open to exercise in subjective evaluation, whether motivatedly or unmotivatedly done, there is no possible way that the examiner's grade can be demonstrated to be wrong; and that it therefore should in legal fairness be held that the Committee can have the right only to give examinations of an objective character which are without any margin for discretion in grading — such as questions calling for "yes" or "no" answers, or questions otherwise subject to determination of correctness of answer definitively, like in example given by appellant "List the grounds for demurrer in the State of California".

But beyond the theoretical attacks made upon the form or type of examination employed by the Committee (appellant has urged others which are even more legally frivolous), the complaint also makes a general insinuative charge that the California examinations have been used "to control competition". The record shows that in his memorandum in the District Court appellant made the following argument, although this has not been carried into his brief here: "In 30 consecutive bar examinations only 50.7 per cent passed the spring examinations and only 53.5 per cent passed the fall examinations. State Bar Journal, Vol. 39, 1964, p. 158. Only slightly over 42 per cent passed the March, 1966, examination the last one taken by appellant. This is ample evidence that the examinations are actually being used as a device to keep down competition among attorneys".

As is sufficiently implied by our discussion of the attacks made upon the form of examination employed by the Committee, it cannot be held legally that essay-type examinations will from their very nature have operation and effect to unfairly restrict admissions. Appellant's charge that the examinations are being used "to control competition" can therefore only have basis (1) if the Committee has been engaging in dishonest grading to accomplish that end, or (2) if it is giving examinations of such scope or difficulty as to be outside the bounds of the educational prescriptions which the California statute has made the basis for the right to take the examination.

Appellant made it clear in the hearing on appellees' motion to dismiss that he was not intending to assert or rely upon a...