Keenan v. Board of Law Examiners of State of NC

Decision Date02 October 1970
Docket NumberCiv. No. 2554.
Citation317 F. Supp. 1350
CourtU.S. District Court — Eastern District of North Carolina
PartiesJames E. KEENAN, Margaret Burnham, aka Margaret Cotton, Loren Mitchell, individually and on behalf of all others similarly situated, Plaintiffs, v. BOARD OF LAW EXAMINERS OF the STATE OF NORTH CAROLINA, and its chairman, Charles G. Buck and his successors, and its members, William L. Mills, Jr., James B. Swails, Horace E. Stacy, Emerson P. Dameron, J. E. Tucker, Robert C. Howison, Jr., Ernest W. Machen, Jr., and W. H. McElwee and their successors, and its secretary-treasurer, B. E. James and his successors, Defendants.

James E. Keenan, pro se.

William Van Alstyne, Durham, N. C., George Daly and Adam Stein, Charlotte, N. C., for plaintiffs.

Lindsay C. Warren, Jr., Taylor, Allen, Warren & Kerr, Goldsboro, N. C., and Robert B. Cordle, Helms, Mulliss & Johnston, Charlotte, N. C., for defendants.

Robert Morgan, Atty. Gen., of N. C., Andrew A. Vanore, Jr., Asst. Atty. Gen., amicus curiae.

Before CRAVEN, Circuit Judge, and BUTLER and McMILLAN, District Judges.

CRAVEN, Circuit Judge:

The plaintiffs James E. Keenan, Margaret Burnham, and Loren Mitchell bring this class action seeking a declaratory judgment declaring unconstitutional and an injunction preventing enforcement of Rule VI(6) of the Rules Governing Admission to the Practice of Law in the State of North Carolina promulgated by the North Carolina Board of Law Examiners. We hold Rule VI(6) to be unconstitutional because it creates an unreasonable, arbitrary classification, unnecessarily burdens the plaintiffs' right to travel, and arbitrarily denies the plaintiffs an opportunity to practice their profession.


The challenged portion of Rule VI1 provides:

Before being certified (licensed) by the Board to practice law in the State of North Carolina, a general applicant shall: * * *
(6) Be and continuously have been a bona fide citizen and resident of the State of North Carolina for a period of at least twelve (12) months prior to the date of his bar examination * * *.

The North Carolina Bar Examination is administered only once each year on the first Tuesday, Wednesday and Thursday in August. Therefore, an applicant for admission to the North Carolina bar may be required to wait from 12 to 24 months after establishing his residence within the state before being allowed to take the examination.

Each plaintiff has been admitted to practice law by the bar of at least one other state. James Keenan is a native of Illinois and a graduate of the Duke University Law School. He has been admitted to practice before the courts of Texas and Louisiana. He became a resident of North Carolina on June 10, 1970. Margaret Burnham was reared in New York City and graduated from the University of Pennsylvania Law School. She is licensed to practice law in New York and is now a resident of that state. Loren Mitchell is a graduate of the Stanford University Law School and is a resident of California. He is currently admitted to practice in California and Iowa. All three of the plaintiffs have indicated a present intention to become permanent residents of North Carolina and to practice law in this state. Plaintiffs Keenan and Burnham have seasonably filed formal applications for admission to the North Carolina Bar. Plaintiff Mitchell has not done so.

The defendants in this action are the Board of Law Examiners of the State of North Carolina, its current members and officers, and their successors in office. The Board is the creature of Section 84-24 of the North Carolina General Statutes "for the purpose of examining applicants and providing rules and regulations for admission to the bar including the issuance of license therefor * * *." Id. The Board is empowered "subject to the approval of the council of the North Carolina State Bar" to "alter and amend such rules and regulations for admission to the bar as in their judgment shall promote the welfare of the State and the profession * * *." Id. Rule VI(6) was adopted by the Board pursuant to this legislative authority.

James Keenan and Margaret Burnham appear to be fully qualified to take the bar examination but for their failure to meet the residency requirement. Because of the examination's imminence, this court granted their request for preliminary injunctive relief and ordered the Board to treat their applications as though they were in compliance with Rule VI(6) pending final decision of this case. A similar request by Loren Mitchell was denied due to his failure to make application for the examination as required by another, unchallenged Board rule. Since the date of that order, the Board has formally ruled that James Keenan and Margaret Burnham have not continuously been bona fide citizens and residents of North Carolina for the requisite 12 month period and that, therefore, they would be denied the privilege of taking the August 1970 bar examination absent the preliminary order of this court now in effect. Pursuant to our preliminary injunction the Board administered the examination to Keenan and Burnham. They passed the examination and but for the residency requirement would presently be entitled to be licensed to practice law.2

This court's jurisdiction in the sense of power under the Constitution and despite the Eleventh Amendment rests upon Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the most important and certainly the most famous legal fiction in American jurisprudence. This is actually, of course, a suit against the state and it has been settled for more than 60 years that federal courts may entertain such suits when ostensibly directed against state officials.

Sparrow v. Gill, 304 F.Supp. 86, 89 (M.D.N.C.1969).

Statutory jurisdiction is granted by 28 U.S.C. §§ 1343(3), 2201, 2281. These statutes demand no minimum jurisdictional amount. A district court of three judges is properly convened because an injunction is sought to restrain the enforcement by state officials of an administrative rule of statewide significance upon grounds that the rule is unconstitutional. 28 U.S.C. § 2281.

But the Board contends that federal district courts lack subject matter jurisdiction "over matters of admission to State bars or the suspension or disbarment from State bars." Without reaching any decision as to our jurisdiction over questions arising out of state disciplinary proceedings, we hold that federal district courts have jurisdiction under 28 U.S.C. § 1343 to consider claims arising out of the application by state officials of a general bar admission requirement that is alleged to be unconstitutional on its face.

The Board's argument is based upon the so-called "Theard Doctrine." In Theard v. United States, 354 U.S. 278, 281, 77 S.Ct. 1274, 1276, 1 L.Ed.2d 1342 (1957), the Supreme Court stated, as dicta, that "it is not for this Court, except for the narrow limits for review open to this Court, as recently canvassed in Konigsberg v. State Bar of California, 353 U.S. 252, 1 L.Ed.2d 810, 77 S.Ct. 722 and Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752 1 L.Ed.2d 796, to sit in judgment on Louisiana disbarments, and we are not in any event sitting in review of the Louisiana judgment." Theard is simply the most recent moderate pronouncement of the flatter rule of Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585 (1917) that "we have no authority to reexamine or reverse, as a reviewing court, the action of the Supreme Court of Michigan in disbarring a member of the Bar of the courts of that state for personal and professional misconduct." Id. at 50, 37 S. Ct. at 378.

The "except" clause in the foregoing note from Theard is important. Schware, cited within that clause, specifically left room for federal constitutional questions. "A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment." 353 U.S. at 238-239, 77 S.Ct. at 756. Thus it is clear that state control of the practice of law is not plenary but is, at the very least, subject to restraints that may be imposed by the Fourteenth Amendment. The Board insists, however, that if this be so, nevertheless, the inferior federal courts lack subject matter jurisdiction, and that the only remedy for violation of federal constitutional rights in this area is in the state court system with, of course, the ultimate possibility of review in the United States Supreme Court. It is true that various lower federal courts have held that an order of a state court disciplining a member of its bar may be reviewed only by the Supreme Court of the United States on a writ of certiorari to the State court. Jones v. Hulse, 391 F.2d 198 (8th Cir. 1968); Ginger v. Circuit Court For County of Wayne, 372 F.2d 621 (6th Cir. 1967); Clark v. State of Washington, 366 F.2d 678 (9th Cir. 1966); Gately v. Sutton, 310 F.2d 107 (10th Cir. 1962); Mackay v. Nesbett, 285 F.Supp. 498 (D. Alaska 1968). These cases have recognized no jurisdiction, even under the Civil Rights Act, 28 U.S.C. 1343, 42 U.S.C. 1983, "authorizing a federal court to entertain an original proceeding designed to set aside and vacate a disciplinary judgment of a state court * * *." Jones v. Hulse, 391 F. 2d 198, 202 (8th Cir. 1968). Compare DeVita v. Gills, 422 F.2d 1172 (3rd Cir. 1970).

The Board urges that we adopt this view and extend to a state administrative agency the deference accorded by these cases to decisions of state courts, and that we also extend the hands off doctrine to rules of admission as well as to disciplinary decisions. It is urged upon us that several federal courts engaged in deciding the question of federal jurisdiction regarding state disciplinary proceedings have collaterally stated that states have exclusive control over the admission of attorneys to practice before...

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    ...professional licensing or as a condition of his right to take the bar examination, itself, as in Keenan v. Board of Law Examiners of State of N.C. (3-judge ct. D.C.N.C.1970) 317 F.Supp. 1350. Other provisions of the Rules of Admission fix those requirements, one of which, relevant to this c......
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