Keeley v. Evans

• Decision Date: 14 February 1921
• Docket Number: 8530.
• Parties: KEELEY v. EVANS, Dist. Atty., et al.
• Court: U.S. District Court — District of Oregon

271 F. 520

KEELEY v. EVANS, Dist. Atty., et al.

No. 8530.

United States District Court, D. Oregon.

February 14, 1921

Lee Roy E. Keeley, of Portland, Or., for complainant.

Walter H. Evans and E. F. Bernard, both of Portland, Or., for defendant Evans.

George M. Brown, Atty. Gen., of Oregon, and Wallace McCamant, of Portland, Or., for defendant Justices of Supreme Court.

WOLVERTON District Judge.

Complainant is a citizen of the United States, and was on and prior to March 24, 1919, a citizen and resident of the state of California, and a member of the bar of that state in good standing. On that date he made application to the Supreme Court of this state (Oregon) for admission to practice law herein, and was licensed to practice for a period of nine months, under rule of court 41 (173 Pac. xiii). Objection was thereafter, and within six months, under the rule, entered to his permanent admission. Service of a copy of the objection was made upon complainant. The objections were referred by the court to the Board of Bar Examiners of Oregon for investigation, and on December 5, 1919, complainant was accorded a hearing before the board. One member of the board declined to act, because of a challenge on the part of complainant on the ground of prejudice. The remaining members made report to the court exonerating complainant from the charges preferred under the objections, but declined to recommend his permanent admission, because of lack of professional character requisite for an attorney of the state, based upon a consideration of the testimony taken before the board as a whole, and particularly the statements and conduct of the applicant at the hearing.

On February 17, 1920, the matter came up without argument before the court, upon the report and the accompanying evidence, and complainant's admission was denied. Upon applicant's motion, a rehearing was granted and had, at which arguments were presented upon each side, and considered. The court deeming the action of complainant before the Board of Examiners unbecoming, and that he is by nature turbulent and intemperate, entered an order refusing permanent admission. Deeming himself aggrieved, complainant has instituted this suit against the Chief Justice and the Associate Justices of the Supreme Court and Walter H. Evans, district attorney for Multnomah county, praying injunction restraining them from interfering with his engaging in the practice of the law in Oregon; that the provisions of sections 1077 to 1081 inclusive, of Lord's Oregon Laws and rules 38 to 42, inclusive, of the Rules of the Supreme Court (173 Pac. xii), be adjudged and decreed to be unconstitutional and void; that defendants, except Evans, be directed and required to admit complainant to the bar of the state, and to license and authorize him to practice law in all the courts therein; and that complainant have judgment against defendants, except Evans, for the sum of $5,030 and costs.

The jurisdiction of this court and the sufficiency of the bill of complaint are brought to test by motions to dismiss. The record presents a case, not of a proceeding for the disbarment of complainant, but of one whereby he is seeking admission to the bar as an attorney from another state, and a denial by the court of such admission. The license extended him to practice for the period of nine months was only temporary and probationary, pending an opportunity for those concerned to make proper investigation of complainant's fitness to be admitted permanently. The cause of complainant's application was therefore pending during the probationary period or until otherwise disposed of.

It is beyond question that this, a federal court, has no power or authority to review, re-examine, or reverse the action of the state Supreme Court in denying a license to practice law in the state. The United States Supreme Court has so declared as to its own authority to re-examine or reverse, as a reviewing body, the action of a state court in disbarring a member of the bar of its own court. Selling v. Radford, 243 U.S. 46, 50, 37 Sup.Ct. 377, 61 L.Ed. 585, Ann. Cas. 1917D 569. If that court has no such authority, it follows, by a much stronger reason, that this court possesses none.

Nor can this court interpose to give complainant affirmative relief, such as to require the Supreme Court of the state to issue him a license to practice law in the state. This follows by reason of the distinct organization of the two courts, one being national and the other state, between which there is no jurisdictional co-ordination as it respects the administration of state polity. A federal court will administer the laws of the state in controversies in which it is given jurisdiction, but it will not interpose to direct or review the administration of state affairs.

This would dispose of the case, but for the contention that complainant is entitled to admission to the bar of this state in spite of regulations prescribed by the laws of the state and rules of court governing the admission of attorneys from another state, and, in this relation, that the Supreme Court has denied him the right to be heard in his own behalf, and that he has been deprived of a privilege due to a citizen of the United States, and to which citizens of the several states are entitled, contrary to the provisions of section 2, article 4, of the federal Constitution, and the Fifth and Fourteenth Amendments thereto.

Without doubt, the right of an attorney to practice law is a property right, which can be taken from him only after judicial hearing and a fair opportunity to be heard in his own defense. Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366; Ex parte Robinson, 19 Wall. 505, 22 L.Ed. 205; State ex rel. McElhinney, 241 Mo. 592, 606, 145 S.W. 1139; Smith v. Medical Examiners, 140 Iowa, 66, 117 N.W. 1116. As we have seen, the proceedings against complainant were not for his disbarment, but, notwithstanding, it is without question that he not only had ample notice and a fair opportunity to be heard, but he actually appeared before both the board and the court, and was afforded full and adequate opportunity to present his case in all of its angles. Due process of law does not embrace nor control mere forms of procedure in state courts, or regulate practice therein. All of its requirements are complied with, provided, in the proceedings which are claimed not to have been due process, the person proceeded against has had sufficient notice and an adequate opportunity has been afforded him to defend. Louisville & Nashville Rd. Co. v. Schmidt, 177 U.S. 230, 236, 20 Sup.Ct. 620, 44 L.Ed. 747.

Complainant is precluded, in view of the record, from at all insisting that he has been condemned without due process of law. Nor can he insist with confidence that he has been deprived of the privileges and immunities of a citizen of the United States. The right to practice law in the state courts is not such a privilege or immunity, within the meaning of the first section of the Fourteenth Amendment. Bradwell v Illinois, 16...