Hackin v. Lockwood

• Decision Date: 01 July 1966
• Docket Number: No. 20446.,20446.
• Parties: H. Samuel HACKIN, Appellant, v. Lorna E. LOCKWOOD, Jesse A. Udall, Charles C. Bernstein, Fred C. Struckmeyer, Jr., Ernest W. McFarland, Justices of the Supreme Court and the State Bar of Arizona, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

361 F.2d 499 (1966)

H. Samuel HACKIN, Appellant, v. Lorna E. LOCKWOOD, Jesse A. Udall, Charles C. Bernstein, Fred C. Struckmeyer, Jr., Ernest W. McFarland, Justices of the Supreme Court and the State Bar of Arizona, Appellees.

No. 20446.

United States Court of Appeals Ninth Circuit.

May 20, 1966.

Rehearing Denied July 1, 1966.

H. Samuel Hackin, in pro. per.

Mark Wilmer, Richard Mallery, Snell & Wilmer, Phoenix, Ariz., for appellees.

Before BARNES and JERTBERG, Circuit Judges, and MATHES, Senior District Judge.

BARNES, Circuit Judge:

This is an appeal from a final judgment of the United States District Court for the District of Arizona, granting appellees' motion to dismiss, and dismissing the cause of action and appellant's complaint and amended complaint as to all appellees.

The dismissal was "for the reasons stated in the Court's opinion of August 2, 1965." That opinion was not published and does not appear in the record before us.

Appellant, appearing in propria persona, is a graduate of a school of law not "provisionally or fully approved by the American Bar Association at the time of his graduation."

By subdivision 6 of Rule IV of the "Rules Pertaining to Admission of Applicants to the State Bar of Arizona," as amended November 5, 1962, appellant must be a graduate of such an accredited school before he can take the Arizona Bar examinations.

Other restrictions prescribed by the same rules are that each applicant must be:

1. Over twenty-one years of age.

2. A bona fide resident of Arizona six months or a graduate of the University of Arizona.

3. A citizen of the United States.

4. Of good moral character.

5. Mentally and physically able to engage in active and continuous practice.

* * * * * *

7. If entitled to practice in another state, in good standing there.

Appellant sued below under Title 28, United States Code, Section 1343(3) which authorizes a civil action in the district courts by any person:

"To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States."

This court has jurisdiction on appeal. 28 U.S.C. § 1291.

The purpose of the section quoted is to enforce the Fourteenth Amendment to the Constitution (Davis v. Foreman, 251 F.2d 421 (7th Cir.), cert. den. 356 U.S. 974, 78 S.Ct. 1137, 2 L.Ed.2d 1148 (1958)), which provides that "No State shall make or enforce any law which shall abridge the privileges * * * of citizens of the United States; nor shall any State deprive any person of * * * property, without due process of law; nor deny to any person * * * the equal protection of the laws."

Appellant sued as defendants the individual Justices of the Supreme Court of the State of Arizona "as public officials," (Amended Complaint, para. 1, C.T. p. 66) and The State Bar of Arizona, a public corporation.

Appellant urges three questions are involved:

I. Whether appellant's rights under the Fourteenth Amendment are violated by the aforesaid rules restriction?

II. Whether the United States District Court had jurisdiction to give the relief prayed?

III. Whether the State Bar Committee and the Justices of the Arizona Supreme Court, in promulgating and administering such rules, acted arbitrarily, capriciously, unreasonably, and without factual foundation?

Conceding in his statement of issues that a classification of applicants is permissible, if the basis for such classification be reasonable, appellant contends the classification here made, for the reason given ("to protect the public against unethical or incompetent practitioners") is unreasonable.

I

Preliminarily, we consider the defendants named.

The State Bar of Arizona is not an appropriate party to the suit because it cannot promulgate or change the rules governing admission to practice in Arizona. Its Board of Governors can suggest rules to the Arizona Supreme Court, and can enforce them, but only with the approval of the Arizona Supreme Court. Arizona Revised Statutes § 32-237, sub-sec. 2 (1956). Rule 28 of the Rules of the Supreme Court of Arizona, 17 A.R.S. governs the admission of attorneys to practice.¹

In the original complaint, but not in the amended complaint, appellant named as a defendant the "Committee on Examinations and Admissions," presumably of the State Bar. This is not a committee of the State Bar, but a committee named by the Supreme Court of Arizona, made up of members of the Arizona State Bar, Rule 28(a). Thus we find the power to grant or deny admission is vested solely in the Arizona Supreme Court. But we see no reason that such improper joinder should prevent our review of the matter as to proper parties. Cf. Konigsberg v. State Bar, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957).

II

The second preliminary question is whether there exists a sovereign immunity in the State of Arizona from suits filed against it, and whether the prohibition in the Eleventh Amendment bars jurisdiction in the federal courts to entertain such litigation. Amendment XI states:

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

In Hans v. State of Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), it was construed to bar a suit against a state in a federal court by its own citizens. To the same effect, see Chandler v. Dix, 194 U.S. 590, 24 S.Ct. 766, 48 L.Ed. 1129 (1904); Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945); United States v. State of Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L. Ed.2d 717 (1965); Smith v. Rackliffe, 87 F. 964 (9th Cir. 1898); Skokomish Indian Tribe v. France, 269 F.2d 555 (9th Cir. 1959); DeLong Corporation v. Oregon State Highway Com'n, 233 F.Supp. 7 (D.Or.1964), aff'd, 343 F.2d 911 (9th Cir. 1965); Note, Private Suits Against States in the Federal Courts, 33 U.Chi. L.Rev. 331 (1966).

Is this suit against the individual Justices of the Supreme Court of Arizona a suit against the State of Arizona? It is if no relief is sought against the Justices as private individuals. The prayer here seeks a permanent injunction against the application of Section 6 of Rule IV, supra, to the plaintiff. The prayer thus seeks remedial action against the defendant Justices as Justices — performing at the least a quasi-judicial act. They have no individual or joint power, acting outside their judicial capacity, to enact rules relative to the admission to practice law, or the requirements therefor. Ex Parte State of New York, No. 1, 256 U.S. 490, 41 S.Ct. 588, 65 L.Ed. 1057 (1921).

As is said in Brents v. Stone, 60 F. Supp. 82, 84 (E.D.Ill.1945): "This is not an action to restrain alleged unlawful action by state officials * * *. It is rather a suit to coerce state action."

If appellant is not suing the Arizona Supreme Court Justices as private individuals, but as a court performing its duties, then the court is a department of the State of Arizona — a part of the State — and subject to the State's immunity hereinbefore mentioned.

But we are not convinced any such immunity exists if one of three divisions of the State are sued under 28 U.S.C. § 1343, and more particularly subsection (3) alleging a deprivation of a constitutional right. If the Eleventh Amendment were an absolute bar, there would be no jurisdiction in the federal district courts to hear any of the reapportionment cases. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568 (1964); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595 (1964); Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964); Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964); Lucas v. Forty-Fourth Gen. Assembly of State of Colo., 377 U.S. 713, 84 S.Ct. 1459, 12 L. Ed.2d 632 (1964); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965); Scott v. Germano, 381 U.S. 407, 85 S.Ct. 1525, 14 L.Ed.2d 477 (1965); Silver v. Jordan, 241 F.Supp. 576 (S.D.Calif.1964); Thigpen v. Meyers, 211 F.Supp. 826 (W.D.Wash.1962); Herweg v. Thirty Ninth Leg. Assem of State of Montana, 246 F.Supp. 454 (D. Mont.1965).

We therefore turn to other defenses interposed in support of the dismissal of plaintiff's complaints. We likewise defer consideration of the claim of res adjudicata, and proceed to the meat of the matter.

III

Is subdivision 6 of Rule IV (the admission requirement of graduation from an accredited law school) reasonable, and therefore not violative of the Fourteenth Amendment?

Just as the Supreme Court in Schware, infra, refused (353 U.S. at 239 n. 5, 77 S.Ct. at 756) to go into any discussion whether the practice of the law is a "right" or a "privilege," we need not do so. In either event, any restriction on such practice must be valid, i. e., reasonable. (Compare Lathrop v. Donohue, 367 U.S. 820, 844, 81 S.Ct. 1826, 6 L.Ed.2d 1191 (1961).)

We agree with appellant that for the requirement to be reasonable it must not be arbitrary; the reason for the prevention of practice must be valid. Power Manufacturing Co. v. Saunders, 274 U.S. 490, 493, 47 S.Ct. 678, 71 L.Ed. 1165 (1927).

"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

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