Lipman v. Van Zant

• Decision Date: 05 August 1971
• Docket Number: No. GC 7091-K.,GC 7091-K.
• Parties: David Michael LIPMAN, on behalf of all others similarly situated, Plaintiff, v. George VAN ZANT, Secretary of the Mississippi Board of Bar Admissions, et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

329 F. Supp. 391

David Michael LIPMAN, on behalf of all others similarly situated, Plaintiff, v. George VAN ZANT, Secretary of the Mississippi Board of Bar Admissions, et al., Defendants.

No. GC 7091-K.

United States District Court, N. D. Mississippi, Greenville Division.

August 5, 1971.

James A. Lewis, Oxford, Miss., for plaintiffs.

Jesse Adams, Asst. Atty. Gen., Jackson, Miss., for defendants.

Before COLEMAN, Circuit Judge, and KEADY and SMITH, District Judges.

KEADY, District Judge:

This class action under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 was brought by plaintiff, David Michael Lipman, a resident of Leflore County, Mississippi, against the Secretary and members of the Mississippi Board of Bar Admissions. The complaint sought a declaratory judgment holding unconstitutional, and an injunction preventing enforcement of, Miss.Code Ann. § 8654, a statute requiring that an applicant for admission to the bar of Mississippi, in order to be eligible to take the bar examination, must reside in the state for one year preceding the date of his application. Before defendants answered, a motion to intervene and complaint in intervention were filed by Maureen Malone, a resident of Washington, D. C., seeking similar relief. Following answer by defendants, a three-judge district court was convened pursuant to 28 U.S.C. § 2281 because of the prayer for injunctive relief against a state statute on the ground of unconstitutionality. The case has been submitted on stipulated facts and briefs of counsel.

The defendant Board members are licensed attorneys of the state appointed to their office by the Governor from written nominations submitted by the Supreme Court of Mississippi. In accordance with a detailed statutory scheme,¹ they are empowered to admit applicants to the bar by examination as well as by transfer from other states, § 8652. The Secretary of the Mississippi State Bar serves as the Board's Secretary and is charged with the duty of disseminating information to applicants as to the prerequisites for taking the bar examination, receiving and examining such applications and also investigating all bar applicants under direction of the Board, § 8648. Anyone who desires to be examined for admission shall, at least 90 days before the regular time fixed for examination, make written application to the Board, submitting statements from three responsible citizens as to the applicant's good moral character; and the names of all applicants are published by the Board at least 10 days before the examination in a newspaper of general circulation throughout the state, § 8653. Qualifications of eligibility for an applicant are prescribed by § 8654.² This section, which is attacked in this case, requires the applicant to be (1) a citizen of the United States, (2) a resident of this state for one year preceding the date of the application, (3) above the age of 21 years, (4) of good moral character, and (5) present evidence of statutorily prescribed college and legal education. The Board first inquires into the applicant's moral character and qualifications, other than legal learning, and dismisses the application if the applicant is found to be disqualified, § 8655. A qualified applicant is given written examination upon a sufficient number of subjects to test thoroughly his legal learning, § 8657. The Board meets twice a year at Jackson on the first Tuesday of each March and September to conduct bar examinations for applicants, § 8661.³ The applicant is required to pay an application fee of $50 (increased to $100 July 1, 1971) at least 90 days before the date of the bar examination, § 8662. Once the examination is completed, each subject is graded separately by the Board, and if the Board determines that the applicant satisfactorily passed the written examination in all subjects, it issues a certificate of admission, which entitles him to an order of the Chancery Court granting him a license to practice law in the courts of the state, § 8658.⁴

Lipman, 24, is a graduate of the University of Pittsburgh (B.A. 1967) and Duquesne University School of Law (J. D. June 1970). Not a member of any bar, he first moved to Mississippi in October 1970 where he was employed at Greenwood as a law clerk for North Mississippi Rural Legal Services. On November 25, 1970, he made written application, accompanied by the requisite filing fee and pertinent credentials, to take the bar examination in March 1971. The Board's Secretary on December 2 notified Lipman that the Board was "powerless to consider your application until you have been a resident of the state for one year", and returned his application, filing fee and other material.

Intervenor Malone, 26, is a graduate of Fairleigh Dickinson University (B. A. 1964) and Howard University School of Law (J.D. June 1970). She has never been admitted to practice by any bar or court. On December 6, 1970, while a resident of Washington, D. C., she presented to defendants her application for admission, filing fee and credentials, stating that she wanted "to pursue the practice of law for living in the State of Mississippi and I intend to marry a resident of Mississippi." This application on December 10 was refused by the Secretary on the ground that she did not meet the residency requirement. Malone alleged in her intervening complaint filed January 7, 1971, that she "has received an offer to work for North Mississippi Rural Legal Services." She remained, however, a nonresident of Mississippi until June 1, 1971, by which date she had moved to Mississippi and was employed as a law clerk at Oxford.

Defendants routinely reject any application which fails to show compliance with the residency provision, and make no further investigation. That was done with the Lipman and Malone applications, and defendants have conducted no inquiry into the good moral character or educational qualifications of either applicant. Hence no issue has been raised as to the failure of either Lipman or Malone to satisfy the conditions of § 8654 apart from the residency requirement.

A requested hearing for a temporary restraining order to allow Lipman and Malone to take the March 1971 bar examination was obviated when, pursuant to agreement, both applicants were permitted to take the examination and be graded thereon, pending the outcome of this action. Lipman successfully passed all but two subjects, and is desirous of retaking the examination on those two subjects in September 1971. Malone successfully passed all but four subjects, and is desirous of retaking the examination on those four subjects. Because of the residency requirement, however, Lipman will not be eligible to take the examination until March 1972, nor will Malone be eligible until September 1972.

Plaintiff and intervenor challenge the residency requirement solely upon the ground that it contravenes the Equal Protection Clause of the Fourteenth Amendment, and assert that they have been thereby deprived of a right or privilege secured by the Constitution. We note that Lipman and other persons in his class reside in Mississippi on the date of application, while Malone and others similarly situated, are nonresidents on that date. Defendants interpose three alternative defenses: (1) This federal district court is without original subject-matter jurisdiction; (2) if jurisdiction exists, the court should abstain from exercising it because of comity considerations; and (3) § 8654 passes constitutional muster.

There can be no question, and indeed the parties agree, that we have jurisdiction as a three-judge district court under 28 U.S.C. § 2281 since the case raises substantial federal questions and seeks an injunction against the enforcement of a state's statute on the ground of its unconstitutionality.

For reasons that follow, we hold that the first and second defenses pleaded by defendants are without merit; and with respect to the third defense, we grant to Lipman and the plaintiffs in his class the declaratory and injunctive relief they seek, but deny all such relief as to intervenor Malone and other nonresidents, and dismiss finally their complaint in intervention.

JURISDICTION

There can be no doubt that plaintiffs who are citizens of the United States are the very persons 42 U.S.C. § 1983⁵ was enacted to protect, or that defendants who are state administrative officials acting in the discharge of statutory functions are "persons" against whom the federal remedy is given.⁶ And the substantive nature of the asserted constitutional claim has been clearly expounded thusly:

"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." Schware v. Board of Bar Examiners, 353 U.S. 232, 238, 77 S.Ct. 752, 756, 1 L.Ed.2d 796, 801 (1957).

This leaves only the narrow inquiry of whether the Civil Rights Act is an appropriate vehicle for vindicating a federal claim of this nature, i. e., a state's bar admission requirement, in a United States District Court.

Defendants in their brief contend that "Mississippi has exclusive jurisdiction over the admission of attorneys to the practice of law within its boundaries", so that consideration of federal constitutional issues which relate to the admission, disbarment or discipline of attorneys must be confined to review by the United States Supreme Court on writ of certiorari to the state courts, and hence federal district courts are without original jurisdiction. The authorities on which defendants rely do not support the sweep of their contentions. Of course, there are many lower federal court decisions holding that a district court is without jurisdiction, despite the federal claim, to review an order or judgment of the state court disbarring or disciplining an attorney.⁷ Admittedly these cases, which are merely following the ordinary rule of res judicata, bar district...