Greene v. Zank

• Decision Date: 23 July 1984
• Citation: 158 Cal.App.3d 497,204 Cal.Rptr. 770
• Parties: Walter GREENE, Jr., Plaintiff and Appellant, v. Gloria ZANK, State Bar of California, Committee of Bar Examiners, Mark C. Allen, Jr., and Does 1 and 3 through 100, Inclusive, Defendants and Respondents. Civ. B002009.
• Court: California Court of Appeals Court of Appeals

Page 770

204 Cal.Rptr. 770

158 Cal.App.3d 497

Walter GREENE, Jr., Plaintiff and Appellant, v. Gloria ZANK, State Bar of California, Committee of Bar Examiners, Mark C. Allen, Jr., and Does 1 and 3 through 100, Inclusive, Defendants and Respondents.

Civ. B002009.

Court of Appeal, Second District, Division 3, California.

July 23, 1984.

Hearing Denied Sept. 26, 1984.

[158 Cal.App.3d 500] Walter Greene, Jr., Anaheim, in pro. per.

Herbert M. Rosenthal, Marie M. Moffat, San Francisco, Robert M. Sweet, and Ellen A. Pansky, Los Angeles, for defendants and appellants.

ARABIAN, Associate Justice.

INTRODUCTION

Plaintiff and appellant, Walter Greene, Jr. ("Greene"), brought an action against defendants and respondents, Gloria Zank, the State Bar of California, the Committee of Bar Examiners of the State Bar and Mark C. Allen (referred to individually as "Zank," "State Bar," "Committee of Bar Examiners" or "Committee" and "Allen," and referred to collectively as "defendants"), alleging a Civil Rights Act (42 U.S.C. § 1983) violation. The trial court sustained defendants' demurrer without leave to amend and dismissed the action on the ground that judicial (quasi-judicial) immunity shielded the defendants from liability for damages. We affirm the judgment.

I. STATEMENT OF FACTS

The facts, as alleged in Greene's complaint, are set forth below.

Greene sat for and was successful in passing the February of 1982 bar examination. In May of that year, the State Bar advised Greene of his success, but informed him that his certification for admission to the bar would be delayed pending a moral fitness investigation by the Committee of Bar Examiners.

In November of 1982 the State Bar set a date in January of 1983 for a hearing regarding Greene's fitness to practice law. In January Greene discovered that his certification was denied due to a communication between a James L. Meeder, whom he was suing, and the State Bar, specifically Zank, the State Bar attorney in charge of pre-admission investigations. In January Greene served Meeder with notice of a State Bar deposition. Thereafter, the January hearing date was stricken and a new date for the hearing was not set. Greene was informed that the State Bar refused to reset the date for the hearing because it wanted to prevent Greene from taking Meeder's deposition. ¹

In May of 1983 Greene discovered that frequent contacts were being maintained between Meeder and the State Bar for the purpose of delaying his admission to practice law in California. Greene believes that the moral fitness investigation was a mere pretext and that the State Bar conspired with Meeder to deny his certification in retaliation for his lawsuit against Meeder.

Greene further alleged that the defendants' conduct was intentional and malicious and that such conduct under color of state law deprived him of rights guaranteed by the Constitution of the United States in violation of the Civil Rights Act (42 U.S.C. § 1983). ² He prayed for compensatory and punitive damages.

II. ISSUE

The primary question presented by this appeal is whether quasi-judicial immunity protects the State Bar and the Committee of Bar Examiners, and their officials, from liability for damages in a lawsuit brought by an applicant for admission to the State Bar who alleges that delay in processing his preadmission investigation violated the Civil Rights Act (42 U.S.C. § 1983). ³ This is a case of first impression.

III. DISCUSSION

A. Jurisdiction.

The State Courts of California have accepted concurrent jurisdiction with the federal courts to adjudicate lawsuits brought under the federal Civil Rights Act (42 U.S.C. § 1983). (Williams v. Horvath (1976) 16 Cal.3d 834, 837, 129 Cal.Rptr. 453, 548 P.2d 1125; Bach v. County of Butte (1983) 147 Cal.App.3d 554, 560, 195 Cal.Rptr. 268; Logan v. Southern Cal. Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 124, 185 Cal.Rptr. 878; see Maine v. Thiboutot (1980) 448 U.S. 1, 3, fn. 1, 100 S.Ct. 2502, 2503, fn. 1, 65 L.Ed.2d 555, 558, fn. 1; Martinez v. California (1980) 444 U.S. 277 283, fn. 7, 100 S.Ct. 553, 558, fn. 7, 62 L.Ed.2d 481, 488 fn. 7.)

B. Federal law is applicable to Section 1983 actions brought in State courts.

Inasmuch as a section 1983 action is based on federal statutory law, a state court must look to federal law to determine the conduct which gives rise to an action under the statute. (Bach v. County of Butte, supra, 147 Cal.App.3d at p. 561, 195 Cal.Rptr. 268.) "Congress has not evinced any intention to defer to the states the definition of the federal right created in section 1983, or to adopt the states' remedies or procedures for the vindication of that right. It has never indicated an intent to engraft onto the federal right state concepts of sovereign immunity or of state susceptibility to suit...." (Donovan v. Reinbold (9th Cir.1970) 433 F.2d 738, 742; see Williams v. Horvath, supra, 16 Cal.3d at p. 840, 129 Cal.Rptr. 453, 548 P.2d 1125; Bach v. County of Butte, supra, 147 Cal.App.3d at p. 561, 195 Cal.Rptr. 268.) ⁴

Thus, where section 1983 claims are submitted to and heard by state courts, it is clear that relevant section 1983 substantive rules must be applied by those courts. (Nahmod, Civil Rights and Civil Liberties Litigation (1979) § 1.12, pp. 16-17; Wright, Law of Federal Courts (3d ed. 1976) pp. 195-196.) These substantive rules include the elements necessary for the prima facie section 1983 cause of action and damages, as well as rules governing absolute and qualified immunity. (Nahmod, supra, at p. 17, fn. 83.)

C. Federal law is applied in state courts to determine if a complaint states a cause of action under section 1983.

In Bach v. County of Butte, supra, 147 Cal.App.3d 554, 195 Cal.Rptr. 268, the court held that California state courts should apply federal law to determine whether a complaint pleads a cause of action under section 1983 sufficient to survive a general demurrer. (Id., at p. 563, 195 Cal.Rptr. 268.) The application of federal law in state courts to make that determination encourages "desirable uniformity in adjudication of federally created rights ...." (Brown v. Western Railway of Alabama (1949) 338 U.S. 294, 299, 70 S.Ct. 105, 108, 94 L.Ed. 100, 104.)

For purposes of a federal motion to dismiss a section 1983 complaint, ⁵ the allegations of the complaint are generally taken as true. (Hughes v. Rowe (1980) 449 U.S. 5, 10, 101 S.Ct. 173, 176, 66 L.Ed.2d 163, 170; Cruz v. Beto (1972) 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263, 268.) The controlling standard, with respect to review of a section 1983 complaint prepared by counsel, is that an action may be dismissed for failure to state a claim only if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." (Conley v. Gibson (1957) 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80, 84; Cohen v. Illinois Institute of Technology (7th Cir.1978) 581 F.2d 658, 663, cert. den. (1979) 439 U.S. 1135, 99 S.Ct. 1058, 59 L.Ed.2d 97; see Bach v. County of Butte, supra, 147 Cal.App.3d at p. 564, 195 Cal.Rptr. 268.) ⁶

D. The role of the State Bar and the Committee of Bar Examiners in the attorney admission process.

Before discussing the controlling federal law pertaining to judicial immunity, we explain briefly the role in the admission process of the State Bar, the Committee of Bar Examiners and the State Bar Division of Trial Counsel (Zank's division).

By enactment of the State Bar Act of 1927 (Stats.1927, ch. 34, p. 38), California joined the bar integration movement (see Craig, What of the State Bar Act? (1927) 2 State Bar J. 92). The feature of this type of organization which distinguishes it from a mere bar association is that all practicing attorneys in the state are required to be members of the state bar, are subject to the rules of the bar, including a provision for payment of an annual fee, are required to adhere to a code of ethics and are subject to disciplinary proceedings for infractions of the code. (See 7 Cal.Jur.3d, Attorneys at Law, § 25, p. 280.)

The State Bar Act (now Bus. & Prof.Code, §§ 6000 et seq.), however, did not change the Supreme Court's historical role in controlling admission, discipline and disbarment of persons entitled to practice before it. (Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 728, 147 Cal.Rptr. 631, 581 P.2d 636; Brotsky v. State Bar (1962) 57 Cal.2d 287, 300, 19 Cal.Rptr. 153, 368 P.2d 697.) Rather, by establishing the State Bar, the act created an organization which acts as an arm or a branch of the Supreme Court in these matters. (Jacobs v. State Bar (1977) 20 Cal.3d 191, 196, 141 Cal.Rptr. 812, 570 P.2d 1230; Emslie v. State Bar (1974) 11 Cal.3d 210, 224-225, 113 Cal.Rptr. 175, 520 P.2d 991; Preston v. State Bar (1946) 28 Cal.2d 643, 650, 171 P.2d 435.) The State Bar, however, acts solely in an advisory capacity, as only the Supreme Court has inherent power and authority to admit an applicant to practice law in the state or to reinstate an applicant previously disbarred. (Hustedt v. Workers' Comp. Appeals Bd. (1981) 30 Cal.3d 329, 338-339, 178 Cal.Rptr. 801, 636 P.2d 1139; Brotsky v. State Bar, supra, 57 Cal.2d at p. 300-301, 19 Cal.Rptr. 153, 368 P.2d 697; In re Lacey (1938) 11 Cal.2d 699, 701, 81 P.2d 935; Brydonjack v. State Bar (1929) 208 Cal. 439, 443, 446, 281 P. 1018; see Bus. & Prof.Code, §§ 6064, 6066, 6078, 6081-6083.)

The State Bar Act also provides for the organization of committees by the State Bar. (Bus. & Prof.Code, §§ 6040 et seq.) One such committee, the Committee of Bar Examiners, has the power to examine applicants for admission to practice law, to administer the requirements for admission to practice, and to certify to the Supreme Court for admission those applicants who meet the requirements. (Bus. & Prof.Code, § 6046, see Rules Regulating Admission to Practice Law, rule 1.)

The Committee of Bar Examiners, subject...