Doe v. Pringle

• Decision Date: 27 December 1976
• Docket Number: No. 75-1875,75-1875
• Citation: 550 F.2d 596
• Parties: John DOE, Plaintiff-Appellant, v. E. E. PRINGLE et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 596

550 F.2d 596

John DOE, Plaintiff-Appellant, v. E. E. PRINGLE et al., Defendants-Appellees.

No. 75-1875.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Sept. 24, 1976.

Decided Nov. 29, 1976.

Rehearing Denied Dec. 27, 1976.

Jonathan B. Chase, Boulder, Colo. (Albert T. Frantz, Denver, Colo., on the brief), for plaintiff-appellant.

Mary J. Mullarkey, Asst. Atty. Gen., Denver, Colo. (J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., and Mary A. Rashman, Asst. Atty. Gen., Denver, Colo., on the brief), for defendants-appellees.

Before SETH, BREITENSTEIN and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

John Doe appeals from the district court order granting the appellees' (defendants below) motion to dismiss his civil rights complaint and causes of action, for lack of subject matter jurisdiction.

Doe graduated from an accredited law school. He successfully completed the Colorado Bar examination in February of 1973. In his application for admission to the Colorado Bar, Doe had disclosed his status as a convicted felon. He served a sentence following a 1971 guilty plea to violation of 26 U.S.C.A. § 4744(a)(unlawful possession, transportation, or concealment of marijuana without payment of the federal transfer tax). In light of the felony conviction and with knowledge of the fact that he achieved a passing score on the examination the Colorado State Board of Law Examiners found that Doe was "not properly qualified for admission to the Colorado Bar since he has been convicted of a felony." Subsequently, upon review, the Colorado Supreme Court unanimously adopted the recommendations and findings of the Bar Committee of the Board in formally denying Doe's admission.

On January 15, 1974, Doe requested that the Colorado Supreme Court reopen his case. The Court granted the request by directing the Bar Committee to conduct a hearing for the purpose of reconsidering Doe's application. The Bar Committee met with Doe some four occasions over a period of eleven months. A record of only one of the meetings was transcribed. On December 2, 1974, the Committee submitted its findings and recommendation that Doe had been rehabilitated and that he was presently fit to practice law. On January 10, 1975 the Colorado Supreme Court unanimously determined, evidenced by a letter from Justice Erickson to Doe, that "on the basis of the proofs submitted on your ethical and moral qualifications, (the Court) has denied your application." Doe thereafter (having been informed by Chief Justice Pringle that he had exhausted his available avenues of relief under Colorado law) filed the instant proceeding seeking relief pursuant to 42 U.S.C.A. § 1983. He alleged jurisdiction pursuant to 28 U.S.C.A. § 1343(3).

Doe's complaint named as defendants the seven Justices of the Colorado Supreme Court. It contains four separate claims for relief, three anchored to the Due Process Clause and one to the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, to-wit: (1) That the Colorado Supreme Court violated Rule 217 of the Colorado Rules of Civil Procedure which provides in relevant part that "no applicant will be refused admission by reason of any ethical or moral disqualification without an opportunity to be heard. Hearing shall be had before the Court en banc, or otherwise as the Court shall direct "; and that by disregarding the recommendation of the Bar Committee and without the benefit of independent hearings the Court denied Doe due process of law; (2) That the Colorado Supreme Court had never before rejected a favorable recommendation of the Bar Committee and that in rejecting the recommendation in his case, the Court did so without any factual basis, thus acting arbitrarily and capriciously in violation of his right of due process of law, (3) That the Court's refusal to admit him was based solely on his past felony conviction, thereby irrebuttably presuming that he is not now qualified to practice, in violation of his right of due process of law, and (4) That other applicants for admission who have been convicted of similar felony offenses at about the stage of their professional careers as Doe have been admitted to the practice of law in Colorado and as a result Doe has been denied equal protection of the law. The relief sought is a declaratory judgment, a permanent injunction and a specific order setting aside the Colorado Supreme Court's denial of Doe's application.

The United States District Court, in denying Doe relief, declared that there is a subtle but fundamental distinction between two types of claims which a frustrated bar applicant might bring to federal court: The first is a constitutional challenge to the state's general rules and regulations governing admission; the second is a claim, based on constitutional or other grounds, that the state has unlawfully denied a particular applicant admission. The Court held that while federal courts do exercise jurisdiction over many constitutional claims which attack the state's power to license attorneys involving challenges to either the rule-making authority or the administration of the rules (Keenan v. Board of Law Examiners of North Carolina, 317 F.Supp. 1350, (E.D.N.C.1970); Goldsmith v. Pringle, 399 F.Supp. 620, (D.Colo.1975); Huffman v. Montana Supreme Court, 372 F.Supp. 1175 (D.Mont.1974), aff'd 419 U.S. 955, 92 S.Ct. 216, 42 L.Ed.2d 172 (1974); Brown v. Supreme Court of Virginia, 359 F.Supp. 549 (E.D.Va.1973), aff'd 414 U.S. 1034, 94 S.Ct. 533, 38 L.Ed.2d 327, rehearing denied, 414 U.S. 1138, 94 S.Ct. 886, 38 L.Ed.2d 764 (1974)), such is not true where review of a state court's adjudication of a particular application is sought. The Court ruled that the latter claim may be heard, if at all, exclusively by the Supreme Court of the United States. The Court relied on the so-called "Theard Doctrine" announced in Theard v. United States, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957), which involved a proceeding to disbar a lawyer from practice in federal court who had previously been disbarred by the Supreme Court of Louisiana for forging a promissory note at a time when he was suffering from a degree of insanity. Solely because of his disbarment by the state court, the attorney was subsequently disbarred by a federal district court by reason of a rule which provided that such action may be taken "whenever . . . any member of its bar has been disbarred . . . from practice . . . in any other court." Of significance to the district court in the case at bar (and to this Court on appeal) is the following language set forth in Theard, supra :

It is not for this Court, except within the narrow limits of review open to this Court, as recently canvassed in Konigsberg v. California . . . and Schware v. Board of Law Examiners . . . to sit in judgment on Louisiana disbarments, and we are not in any event sitting in review of the Louisiana judgment. While a lawyer is admitted into a federal court by way of a state court, he is not automatically sent out of the federal court by the same route. The two judicial systems of court, the state judicature and the federal judiciary, have autonomous control over the conduct of their officers, among whom . . . lawyers are included . . . If the accusation (before the federal court) rests on disbarment by a state court, such determination brings title deeds of high respect. But it is not conclusively binding on the federal courts . . ."

354 U.S., at pp. 281, 282, 77 S.Ct. at p. 1276.

The district court also relied upon Gately v. Sutton, 310 F.2d 107 (10th Cir. 1962), which involved a civil rights action brought against the members of the Supreme Court of Colorado seeking to require them to set aside an order of disbarment. The primary Due Process complaint was aimed at the fact that the Supreme Court had entered the order of disbarment without permitting Gately to present evidence of the truth of his public allegation that the Chief Justice of the Colorado Supreme Court had accepted a bribe to influence or control the Court's decision in an appeal pending before it in which Gately represented the appellant. This Court denied relief and held, inter alia :

The Supreme Court of Colorado has exclusive jurisdiction to admit attorneys to practice in the Colorado courts and to strike them from the roll for misconduct . . . The federal courts do not have jurisdiction to review an order of the Colorado Court disbarring an attorney in that state for personal and professional misconduct.

310 F.2d, at 108.

and:

. . . a petition for a writ of certiorari to the Supreme Court of the United States is the only method by which review may be had . . . Furthermore, the federal courts have no jurisdiction to issue writs of mandamus to direct state courts or their judicial officers in the performance of their duties, including disbarment proceedings.

310 F.2d, at 108.

The district court also cited MacKay v. Nesbett, 412 F.2d 846 (9th Cir. 1969), cert. denied, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425 (1969), which involved a challenge to the action of a majority of the Justices of the Alaska Supreme Court who had entered disciplinary orders suspending MacKay from the practice of law for a period of one year. The Court cited Theard, supra, Gately, supra, and other opinions in support of this rule:

. . . orders of a state court relating to the admission, discipline, and disbarment of members of its bar may be reviewed only by the Supreme Court of the United States on certiorari to the state court, and not by means of an original action in the lower federal court. The rule serves substantial policy interests arising from the historic relationship between state judicial systems and the members of their respective bars, and between the state and federal judicial systems . . . A federal court may, of course, examine a state court disciplinary proceeding...