Feldman v. State Board of Law Examiners, No. 20405.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtVAN OOSTERHOUT and BRIGHT, Circuit and NEVILLE
Citation438 F.2d 699
PartiesSolomon FELDMAN, Jr., Appellant, v. STATE BOARD OF LAW EXAMINERS et al., Appellees.
Decision Date03 March 1971
Docket NumberNo. 20405.

438 F.2d 699 (1971)

Solomon FELDMAN, Jr., Appellant,
v.
STATE BOARD OF LAW EXAMINERS et al., Appellees.

No. 20405.

United States Court of Appeals, Eighth Circuit.

March 3, 1971.


438 F.2d 700

Solomon Feldman, Jr., pro se.

J. W. Barron, Rose, Barron, Nash, Williamson, Carroll & Clay, Little Rock, Ark., for appellees.

Before VAN OOSTERHOUT and BRIGHT, Circuit Judges and NEVILLE, District Judge.

438 F.2d 701

NEVILLE, District Judge.

Seeking to be admitted as an attorney to the Bar in the State of Arkansas, plaintiff sat for the written bar examinations prescribed by the Arkansas State Board of Law Examiners in June 1969 and again in March 1970. On both occasions he failed to obtain the requisite passing grade of 75 and his admission thus was not recommended by the Board to the Arkansas Supreme Court. Plaintiff brings this action pro se in the United States District Court against the Board, its chairman and Secretary, claiming a violation of his constitutional rights under 28 U.S.C. § 1343(3) which confers on the United States District Courts original jurisdiction over violations of 42 U.S.C. § 1983, the Civil Rights Act of 1871. He also asserts federal question jurisdiction under 28 U.S.C. § 1331(a). The district court dismissed the action. We affirm.

Although under the Arkansas Supreme Court Rules plaintiff may sit for a third examination if he wishes, he seeks instead mandatory injunctive relief in the form of an order by the District Court appointing what would constitute an ad hoc grader or group or committee of impartial graders to regrade his examination papers "to see if he has not in fact passed the Bar Examination * * * and that the trial court order the State Board * * * to recommend him for certification if it finds merit in what he asserts."1 He alleges as various grounds for relief:

(1) The law and the Rules of the Supreme Court of Arkansas as written and as administered are unconstitutional in that "no procedure for regrading the bar examination" is provided and there is "no procedure available to pursue a wrong done to an applicant due to a grading malfunction."2

(2) Plaintiff was discriminated against because

(a) he had a past history of mental disability and had twice been an inmate at a State mental institution3
(b) he is Jewish
(c) he is a nonconformist.

(3) The Board acted negligently, intentionally and through unavoidable mistake.4

(4) Plaintiff believes in good faith that he passed the examination and that the Board discriminated against him in grading.

The trial court, J. Smith Henley, in a memorandum stated that he "very gravely doubts" that the complaint states any claim for money damages. No such assertion has been urged or argued to this court and we treat the case as seeking solely mandatory injunctive relief of the type stated above. The trial court opined that the question of jurisdiction is doubtful under Jones v. Hulse, 391 F.2d 198 (8th Cir. 1968), cert. denied 393 U.S. 889, 89 S.Ct. 206, 21 L.Ed.2d 167 (1968), which cites and relies on Theard v. United States, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957), and that the question of whether the complaint states a claim upon which relief can be granted also is not free from doubt. He expressly did not rest his decision on either of these grounds however. We think he safely could have done so on either or both such grounds and could have entered a summary judgment for defendants. Rather he chose to dismiss the complaint without prejudice and in a thoughtful and well-reasoned memorandum concluded that the action was premature "and will remain so until plaintiff has sought relief from the Supreme Court of Arkansas itself." He found that plaintiff had made no application

438 F.2d 702
or request to that court to review his case or to grant him relief

The principle is firmly established that the judicial branch of the government, acting through the courts, has exclusive jurisdiction to admit, control and disbar attorneys. The courts may and frequently do honor implementing legislation, but clearly are not bound so to do.5 In re Nevius, 174 Ohio 560, 191 N.E.2d 166 (1963). So the court by constituting a Board of Law Examiners, retains jurisdiction over its operations and ultimately over admissions to the bar. The Board is an administrative aid to the court. It does not itself admit applicants to the bar, nor disbar attorneys, but merely makes recommendations to the court, which recommendations the court may or may not elect to follow. An adverse Board recommendation is that and nothing more and itself is not a deprivation or denial of admission. The language in Chaney v. State Bar of California, 386 F.2d 962 (9th Cir. 1967), cert. denied, 390 U.S. 1011, 88 S.Ct. 1262, 20 L.Ed.2d 162; re. denied, 391 U.S. 929, 88 S.Ct. 1803, 20 L. Ed.2d 670 (1968), is particularly appropriate here:

"The significance of this is that under California law a refusal of certification by the Committee is not a power of deprivation. Only if the Court expressly or impliedly approves the Committee\'s refusal to certify so as to make this the basis or allow it to have the effect of a denial of admission can the Committee\'s actions of examination and refusal to certify come to be a fixative status and have the stature of a deprivation.
Thus the situation here is not a matter of exhausting state remedies in respect to an alleged federal right but of there being no basis for any alleged federal right to exist as to the Committee\'s actions until the California Supreme Court in the exercise of its original power over admissions has allowed these actions to serve as a deprivation. The holding of Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492, and McNeese v. Board of Education, 373 U.S. 668, 671-672, 83 S.Ct. 1433, 1435, 10 L.Ed. 2d 622, that it is not necessary to exhaust state remedies before a suit can be instituted under the Civil Rights Act, is therefore without application. Whatever may be the scope of the right to sue granted by 42 U.S.C. § 1983, it extends in any event only to `the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States\' (Emphasis added)." 386 F. 2d at 966.

The Supreme Court of Arkansas thus has the inherent power to admit or to disbar lawyers, its officers, without regard to the Board's action, though obviously, as with most courts it would be expected normally to follow the recommendations of the agency it has created to assist it.

Plaintiff in this case is not proscribed as to an application to the Arkansas Supreme Court for relief. The Rules of the Arkansas Supreme Court constituting the Board, setting forth its procedures and regulating its activities were in evidence. Despite the fact that these rules provide in detail a method...

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59 practice notes
  • Seergy v. Kings County Republican County Committee, No. 733-735
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 20 Abril 1972
    ...Zuckerman v. Appellate Division, 421 F.2d 625, 626 (2d Cir. 1970), and of other courts, e. g., Feldman v. State Board of Law Examiners, 438 F.2d 699, 705, (8th Cir. 1971); the New York City Board of Elections would not be considered a "person" within the meaning of § 1983 and hence could no......
  • Tyler v. Vickery, No. 74-3413
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 20 Agosto 1975
    ...1968, 390 U.S. 1011, 88 S.Ct. 1262, 20 L.Ed.2d 162; and in dictum by a third, Feldman v. State Board of Law Examiners, 8 Cir. 1971, 438 F.2d 699, 703 n. 6. All have concluded, as have we, that a hearing is not required. These decisions, which we consider sound and well-reasoned, reinforce o......
  • Delgado v. McTighe, Civ. A. No. 76-1206.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 1 Diciembre 1977
    ...original action in a lower federal court. Accord, Doe v. Pringle, 550 F.2d 596 (10th Cir. 1976); Feldman v. State Board of Law Examiners, 438 F.2d 699 (8th Cir. 1971); Chaney v. State Bar of California, 386 F.2d 962 (9th Cir. 1967); Nordstrom v. New Mexico Supreme Court, No. 76-962 (D.N.M. ......
  • McKenzie v. Burris, No. 73--73
    • United States
    • Supreme Court of Arkansas
    • 22 Octubre 1973
    ...the courts may, and frequently do, honor implementing legislation, but are not bound to do so. Feldman v. State Board of Law Examiners, 438 F.2d 699 (1971). See also, Martin v. Davis, 187 Kan. 473, 357 P.2d 782 (1960); Meunier v. Bernich, In subsequent legislation, Act 438 of 1961 (Ark.Stat......
  • Request a trial to view additional results
59 cases
  • Seergy v. Kings County Republican County Committee, No. 733-735
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 20 Abril 1972
    ...Zuckerman v. Appellate Division, 421 F.2d 625, 626 (2d Cir. 1970), and of other courts, e. g., Feldman v. State Board of Law Examiners, 438 F.2d 699, 705, (8th Cir. 1971); the New York City Board of Elections would not be considered a "person" within the meaning of § 1983 and hence could no......
  • Tyler v. Vickery, No. 74-3413
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 20 Agosto 1975
    ...1968, 390 U.S. 1011, 88 S.Ct. 1262, 20 L.Ed.2d 162; and in dictum by a third, Feldman v. State Board of Law Examiners, 8 Cir. 1971, 438 F.2d 699, 703 n. 6. All have concluded, as have we, that a hearing is not required. These decisions, which we consider sound and well-reasoned, reinforce o......
  • Delgado v. McTighe, Civ. A. No. 76-1206.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 1 Diciembre 1977
    ...original action in a lower federal court. Accord, Doe v. Pringle, 550 F.2d 596 (10th Cir. 1976); Feldman v. State Board of Law Examiners, 438 F.2d 699 (8th Cir. 1971); Chaney v. State Bar of California, 386 F.2d 962 (9th Cir. 1967); Nordstrom v. New Mexico Supreme Court, No. 76-962 (D.N.M. ......
  • McKenzie v. Burris, No. 73--73
    • United States
    • Supreme Court of Arkansas
    • 22 Octubre 1973
    ...the courts may, and frequently do, honor implementing legislation, but are not bound to do so. Feldman v. State Board of Law Examiners, 438 F.2d 699 (1971). See also, Martin v. Davis, 187 Kan. 473, 357 P.2d 782 (1960); Meunier v. Bernich, In subsequent legislation, Act 438 of 1961 (Ark.Stat......
  • Request a trial to view additional results

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