Jones v. Board of Com'rs of Alabama State Bar

• Decision Date: 30 July 1984
• Docket Number: No. 83-7004,83-7004
• Citation: 737 F.2d 996
• Parties: Roxanne JONES, Mary Kyser, Perry Varner and Velmer Taylor, Plaintiffs- Appellants, v. BOARD OF COMMISSIONERS OF the ALABAMA STATE BAR, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 996

737 F.2d 996

Roxanne JONES, Mary Kyser, Perry Varner and Velmer Taylor Plaintiffs- Appellants, v. BOARD OF COMMISSIONERS OF the ALABAMA STATE BAR, et al Defendants-Appellees.

No. 83-7004.

United States Court of Appeals Eleventh Circuit.

July 30, 1984.

Rehearing and Rehearing En Banc Denied Sept. 17, 1984.

Rose Mary Sanders, Chestnut, Sanders, Sanders & Turner, Selma, Ala., for plaintiffs-appellants.

Champ Lyons, Jr., Mobile, Ala., William H. Morrow, Jr., Montgomery, Ala., for Bd. of Comms. and individual members of Bd.

L. Drew Redden, Redden, Mills & Clark, Birmingham, Ala., Terry R. Smyly, Asst. Atty. Gen., Montgomery, Ala., for Ala. Supreme Court and individual Justices.

Appeal from the United States District Court for the Middle District of Alabama.

Before KRAVITCH, JOHNSON and HATCHETT, Circuit Judges.

JOHNSON, Circuit Judge:

This is an appeal from the decision of the district court, dismissing plaintiffs' complaint for failure to state a claim upon which relief can be granted. In their action against the Alabama Supreme Court and the justices of the Court and against the Board of Commissioners of the Alabama State Bar and its members, plaintiffs, appellants here, seek declaratory and injunctive relief under 42 U.S.C.A. Sec. 1983 and 28 U.S.C.A. Sec. 2201. Appellants challenge as violative of the Fourteenth Amendment certain rules applicable in the administration of the Alabama bar examination, including the rule limiting to five the number of times that an applicant can sit for the bar examination and the rule granting to those who fail the examination a limited right to review their papers and other passing examination papers. ¹

Courts should be reluctant to dismiss a complaint for failure to state a claim upon which relief can be granted. A complaint should not be dismissed on this ground " 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'." Quality Foods de Centro America, S.A. v. Latin American Agribusiness Development Corporation, 711 F.2d 989, 995 (11th Cir.1983) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)). The district court in this case concluded that beyond doubt plaintiffs could not prove facts that would entitle them to relief on any of their claims. This appeal challenges the district court's decision on only three of the grounds relied upon below. ² We agree with the conclusions of the district court on all three grounds and therefore affirm its decision.

Appellants challenge certain of the Rules Governing Admission to the Alabama State Bar. ³ Specifically, appellants challenge on substantive due process and equal protection grounds Rule IV D, ⁴ which limits to five the number of times an applicant can sit for the Alabama bar examination, and on procedural due process grounds the operation together of Rule IV D and Rule VI I(3) (unnumbered paragraph 6), ⁵ which grants to those who write failing examination papers a limited right to review their papers and other passing papers. Appellants also challenge Rule IV D on the ground that its disproportionate impact on blacks, which occurs in the context of a history of state-sponsored, intentional discrimination against blacks in elementary and secondary education, as well as in Alabama's law schools, violates principles of equal protection. ⁶ We will discuss these arguments in turn.

I.

Appellants argue that the rule limiting to five the number of times one can sit for the Alabama bar examination violates due process because it creates an irrebuttable presumption of incompetence that operates against all those who fail the bar examination five times. Appellants rely upon the line of Supreme Court decisions, including Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), in which the Court struck down as violative of due process statutory conclusive presumptions that were not necessarily and universally true but that nevertheless were employed to answer as to all individuals fact questions raised by the statutory scheme in question. Appellants here argue that the fact question of attorney competence is answered for all individuals by the rule that a person who fails the bar examination five times may not retake it, and thus may not become a member of the bar, even though it is not necessarily and universally true that all who fail the bar examination five times would be incompetent attorneys. For the reasons set forth below, we do not agree that the irrebuttable presumption doctrine is applicable in this case.

The Supreme Court in LaFleur held unconstitutional rules of the Cleveland County and Chesterfield County boards of education that required pregnant teachers to leave work, respectively, at the end of the fourth and fifth month of pregnancy. 414 U.S. at 644, 94 S.Ct. at 798. The asserted rationale for the mandatory termination rules was the necessity of keeping physically unfit teachers out of the classroom. ⁷ Id at 643, 94 S.Ct. at 797. Recognizing the validity of the state's concern, the Court nonetheless struck down the rules as a violation of due process because they created "a conclusive presumption that every pregnant teacher who reaches the fifth or sixth month of pregnancy is physically incapable of continuing," id. at 644, 94 S.Ct. at 798, despite evidence showing that large numbers of pregnant teachers were fully capable of continuing work longer than the rules allowed. Id. at 646, 94 S.Ct. at 799. The Court concluded that the county boards, in raising a fact question, the physical capabilities of pregnant teachers, and then answering the question for all individuals with a conclusive presumption that was "neither 'necessarily [nor] universally true'," violated principles of due process. Id. (quoting Vlandis, supra, 412 U.S. at 452, 93 S.Ct. at 2236).

Similarly, in Vlandis, the Court struck down as a conclusive presumption violative of due process a statutory definition of residency used to fix state university tuition rates. 412 U.S. at 453, 93 S.Ct. at 2237. The Court held that Connecticut could not at once claim to be concerned with residency and at the same time deny to one seeking to meet its test of residency all opportunity to show factors bearing on that issue. Id. at 452, 93 S.Ct. at 2236.

Finally, in Stanley, the Court found violative of due process an Illinois statute that denied to an unwed father, after the death of the mother, a hearing to determine parental fitness before his children could be declared wards of the state. 405 U.S. at 649, 656-57, 92 S.Ct. at 1211, 1215-16. The law presumed that all unwed fathers were unfit parents. Id. at 650, 92 S.Ct. at 1212.

These cases are fully distinguishable from the case at bar. In LaFleur, Vlandis, and Stanley, the state raised a fact question--physical capability, residency, and parental fitness, respectively--and then by statute answered the question for each individual, denying the opportunity for individuals to present evidence on the question applicable in their own cases. By contrast, the state here raises a fact question--competency to practice law--and gives individuals up to five opportunities to prove their competence. In adopting bar admission requirements, including the bar examination, the state in effect adopts a rebuttable presumption of incompetence, affords applicants five opportunities to rebut the presumption by passing the bar examination, and then essentially adopts as fact as to those individuals who fail the examination five times what it formerly presumed, their incompetency to practice law. ⁸

Appellants argue that the state violates due process because it raises the fact question whether all who fail the bar examination five times are competent to practice law, and then it answers the question in the negative for all individuals, who do fail five times, without providing opportunity for proof in an individual case. Appellants' focus is misdirected. The state does not ask whether a bar applicant who fails the bar examination five times is competent to practice law. The state simply asks whether an applicant is competent to practice law, and then it provides the applicant five opportunities to demonstrate his or her competence. ⁹

Failing in their argument that they have no opportunity to prove their competence, appellants argue that the "five-time rule" violates principles of due process and equal protection because it is not tailored carefully enough to fit the state purpose it is intended to promote. Appellants assert that this Court should apply the strict scrutiny standard of review and determine whether the five-time rule is necessary to achieve a compelling state interest. We disagree. Under both substantive due process and equal protection analysis, the Court must determine whether the rule is rationally related to a legitimate state purpose, and we hold that it is so related.

Appellants argue that the important liberties involved here entitle them to a higher level of scrutiny under the equal protection clause than mere rational basis review. They assert that they have a fundamental right to take the bar examination and to practice law, and that any classification that affects these rights is constitutionally permissible only if it is the least intrusive means of achieving a compelling state interest.

The Supreme Court has applied strict scrutiny analysis to statutory classifications affecting fundamental rights. See Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (when classification touches on fundamental right of interstate travel, its constitutionality must be judged by the stricter standard of whether it is necessary to promote a compelling state interest). The Court,...