Giannini v. Real

• Decision Date: 16 August 1990
• Docket Number: No. 89-55466,89-55466
• Citation: 911 F.2d 354
• Parties: Joseph R. GIANNINI, Plaintiff-Appellant, v. Manuel L. REAL, et al.; A. Wallace Tashima, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 354

911 F.2d 354

Joseph R. GIANNINI, Plaintiff-Appellant, v. Manuel L. REAL, et al.; A. Wallace Tashima, Defendants-Appellees.

No. 89-55466.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 8, 1990.

Decided Aug. 16, 1990.

Joseph R. Giannini, Marina del Rey, Cal., in pro. per.

Roger E. West, Asst. U.S. Atty., Los Angeles, Cal., for all federal defendants-appellees.

Christopher G. Caldwell, Hedges, Powe & Caldwell, Los Angeles, Cal., for defendant-appellee Tashima.

Lawrence C. Yee, Committee of Bar Examiners, San Francisco, Cal., for all state defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before HUG, HALL and TROTT, Circuit Judges.

HUG, Circuit Judge:

This case presents two issues: (1) whether the California Bar Examination and its grading process are constitutional; and (2) whether the Local Rules of the United States District Courts for the Central, Southern and Eastern Districts of California, which require attorneys seeking admission to those courts to be members in good standing of the California State Bar, are constitutional. The district court held both the bar examination and the local rules to be constitutional. We affirm.

I. Procedural Background

Joseph R. Giannini, a California resident, is an attorney who passed the New Jersey and Pennsylvania bars. After failing the California bar twice, Giannini challenged the constitutionality of the California Bar Examination. Giannini v. The Comm. of Bar Examiners, C-87-3797-JGD. We affirmed the district court's dismissal of that action, holding that Giannini had failed to appeal to the state supreme court which has the authority to grant or deny admission to the bar, and that Giannini therefore had suffered no deprivation under federal law. Giannini v. The Comm. of Bar Examiners, 847 F.2d 1434, 1435 (9th Cir.1988).

In a separate action, Giannini challenged the federal district courts' local admission rules, which require membership in the State Bar of California (collectively, the "challenged local rules"). ¹ Giannini v. Real, C-88-012467. The district court ordered the action stayed until Giannini had fully exhausted his administrative remedies with the State Bar of California.

In July, 1988, Giannini filed a Petition for Admission and Other Declaratory Relief with the California Supreme Court. On October 12, 1988, the California Supreme Court denied the petition in a one-line order.

Giannini filed the instant complaint on October 24, 1988, challenging his denial to practice law in the State of California, and in the United States District Courts for the Central, Southern and Eastern Districts of California.

The defendants in Giannini's action are: The California Supreme Court and the named Justices of that Court, The Committee of Bar Examiners and the Committee's Members (collectively referred to as "State Defendants"), and the said District Courts and the named Judges of those Courts (collectively referred to as "Federal Defendants").

Giannini moved for summary judgment for admission to practice in the named federal district courts and for a preliminary injunction ordering admission to the California bar. He also moved for default judgment against individually named members of the Committee of Bar Examiners and for criminal sanctions against the Committee's attorneys. The State and Federal Defendants moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim.

The district court denied Giannini's motions and dismissed Giannini's claims. Giannini v. Comm. of Bar Examiners, 711 F.Supp. 992 (C.D.Cal.1989). Giannini timely appealed pro se the district court's dismissal of his claims against the Federal and State Defendants.

II. Claims Against the State Defendants

Giannini alleges that the California Supreme Court and the Committee of Bar Examiners have violated the Fourteenth Amendment's Due Process and Equal Protection Clauses, the Privilege and Immunities Clause of Art. IV, Sec. 2, and the Commerce Clause of Art. I, Sec. 8. Giannini also brings claims for damages pursuant to 42 U.S.C. Secs. 1983 and 1985 against the Committee and its members. Finally, Giannini brings state law claims against the Committee based on alleged breach of contract and fraud. ²

A. Claimed Constitutional Violations

The district court dismissed Giannini's constitutional claims against State Defendants on the grounds of res judicata based on the ruling of the California Supreme Court. Giannini, 711 F.Supp. at 997. We decline to discuss this issue. We find that even if Giannini's claims were not barred by res judicata, he still failed to state a valid constitutional claim. We discuss Giannini's claims in turn.

1. Procedural Due Process

Giannini asserts that he was denied his procedural due process because he was not provided "any reason or notice" on why he failed the bar examination or "any opportunity to be heard or present any claim or defense" to the California Supreme Court and because the California Supreme Court decision denying his admission did not include a written opinion. We find this argument to be unpersuasive.

The rules governing admission to the California bar provide that an unsuccessful bar applicant can see his examination. See Cal.Bus. & Prof.Code Sec. 6065 (West 1990). Accordingly, Giannini was able to see why he failed. Further, the rules provide that an unsuccessful applicant can petition the supreme court for review of the denial of his admission. See Cal.Bus. & Prof.Code Sec. 6066 (West 1990). Giannini petitioned the California Supreme Court and had an opportunity to present his claim before the supreme court via the petition. See Kremer v. Chem. Constr. Corp., 456 U.S. 461, 481, 102 S.Ct. 1883, 1897, 72 L.Ed.2d 262 (1982) (a "full and fair opportunity" means that the "state proceedings need do no more than satisfy the minimal procedural requirements for the Fourteenth Amendment's Due Process Clause."). We therefore find that the State provided Giannini with procedural due process. See Sutton v. Lionel, 585 F.2d 400, 403 (9th Cir.1978) (holding that the rules governing admission to the Nevada bar, which allow the unsuccessful applicant to see his exam and petition the Nevada Supreme Court for review of the applicant's denial of admission, satisfy the requirements of due process). ³

2. Privileges and Immunities Clause

Giannini alleges that the Committee discriminates against attorneys licensed in other states by forcing them to take the California bar once they have already passed their own state's bar. Giannini argues that this violates the Privileges and Immunities Clause. We disagree.

Discrimination on the basis of out-of-state residency is a necessary element for a claim under the Privileges and Immunities Clause. See Levanti v. Tippen, 585 F.Supp. 499, 507 (S.D.Cal.1984) ("The lack of disparate treatment of non-residents ... eliminates the possibility of a barrier to interstate travel."). There is no discrimination on the basis of non-residency or citizenship in California because neither California citizenship nor residency is a requirement for California bar applicants. Id. ⁴ The absence of any disparate treatment of nonresidents is fatal to Giannini's claims. ⁵

3. Equal Protection

Giannini also argues that the California Bar Examination's format and grading process violates the Equal Protection Clause under the Fourteenth Amendment. To support this claim, Giannini notes the high percentage of attorneys who fail the California bar. Moreover, he asks this court to use the strict scrutiny standard when applying the Equal Protection analysis. We do not find Giannini's argument to be persuasive nor do we accept his proposed standard of scrutiny.

When analyzing a discrimination claim under the Fourteenth Amendment, we must first determine the appropriate level of scrutiny to be applied. If the rule disadvantages a suspect class or impinges upon a fundamental right, the court will examine it by applying a strict scrutiny standard. If no such suspect class or fundamental rights are involved, the conduct or rule must be analyzed under a rational basis test. Lupert v. Cal. St. Bar, 761 F.2d 1325, 1327-28 (9th Cir.1985). Here, the challenged bar examination neither impairs a fundamental right nor discriminates against a suspect class. There is no fundamental right to practice law or to take the bar examination. Attorneys do not constitute a suspect class. Id. at 1327 n. 2. Therefore, a rational level of scrutiny is used.

Overwhelming legal authority supports this view that review of state procedures for bar admissions and testing is guided by the rational basis standard. Schware v. Bd. of Examiners, 353 U.S. 232, 238-39, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957). ⁶ Further, our cases hold that a state need not use a professionally validated examination or, as Giannini suggests, a more reliable measure of professional competence, see Tofano v. Sup.Ct. of Nev., 718 F.2d 313, 315 (9th Cir.1983) (citing Tyler v. Vickery, 517 F.2d 1089, 1102 (5th Cir.1975)), and that an examination is not invalidated on the basis of a low percentage of passing applicants. Chaney v. State Bar of Cal., 386 F.2d 962, 965-66 (9th Cir.1967), cert. denied, 390 U.S. 1011, 88 S.Ct. 1262, 20 L.Ed.2d 162 (1968).

It is clear that each state is free to prescribe the qualifications for admission to practice for those lawyers who appear in its courts. Leis v. Flynt, 439 U.S. 438, 442, 99 S.Ct. 698, 700, 58 L.Ed.2d 717 (1979). California has the right to make its examination more comprehensive and difficult than other states. Chaney, 386 F.2d at 964-65. We find that the format and grading process of the California Bar Examination bear a rational connection to the practice of law. We also hold that allowing California to set its own bar examination standards is rationally related to the legitimate government need to ensure the quality of attorneys within ...