Louis v. Supreme Court of Nevada

• Decision Date: 16 April 1980
• Docket Number: No. CIV-R-79-176-ECR.,CIV-R-79-176-ECR.
• Citation: 490 F. Supp. 1174
• Parties: Martha Malone LOUIS, Plaintiff, v. SUPREME COURT OF NEVADA, Honorable John Mowbray, Honorable Gordon R. Thompson, Honorable E. M. Gunderson, Honorable Noel E. Manoukian, Honorable Cameron Batjer, the State Bar of Nevada, and the Board of Bar Examiners of the State Bar of Nevada, Defendants.
• Court: U.S. District Court — District of Nevada

490 F. Supp. 1174

Martha Malone LOUIS, Plaintiff, v. SUPREME COURT OF NEVADA, Honorable John Mowbray, Honorable Gordon R. Thompson, Honorable E. M. Gunderson, Honorable Noel E. Manoukian, Honorable Cameron Batjer, the State Bar of Nevada, and the Board of Bar Examiners of the State Bar of Nevada, Defendants.

No. CIV-R-79-176-ECR.

United States District Court, D. Nevada.

April 16, 1980.

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Stephens, Kosach & Knight, Reno, Nev., for plaintiff.

Donald F. Klasic, Deputy Atty. Gen., Carson City, Nev., for Supreme Court of Nevada and Justices Mowbray, Thompson, Gunderson, Manoukian and Batjer.

Eleissa C. Lavelle, Las Vegas, Nev., for State Bar of Nevada and Board of Bar Examiners.

ORDER

EDWARD C. REED, Jr., District Judge.

The plaintiff has filed a complaint against the Supreme Court of Nevada, the five individual justices of that Court, The State Bar and the Board of Bar Examiners of the State Bar. She seeks a judgment ordering the defendants to permit her to take the 1980 Nevada bar examination, money damages and attorney fees.

At the time of the filing of her complaint, the plaintiff had been licensed to practice law in the State of California for thirty-six years. She became a resident of Nevada in 1970. In 1978, the plaintiff applied to take the Nevada bar examination and was refused permission. The next year she applied again and was once more refused. The reason for these refusals was that the plaintiff is a graduate of a law school not accredited by the American Bar Association. Nevada Supreme Court Rule 51(3) requires that an applicant for examination have received an LL.B. or equivalent degree from a law school approved by the committee on legal education and admissions to the bar of the American Bar Association.

After the 1979 refusal, the plaintiff petitioned the Nevada Supreme Court to waive said requirement and allow her to take the examination. The petition was denied. Subsequently, her motion for reconsideration was denied by the Nevada Supreme Court.

The instant litigation then was commenced in the United States District Court. Jurisdiction was invoked pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983. The latter statute is part of the Civil Rights Act; the former grants original jurisdiction to the federal district courts to entertain civil actions to redress the deprivation, under color of state law, of any right secured by the U. S. Constitution.

The plaintiff alleges that a number of male graduates of unaccredited law schools have been permitted to sit for Nevada bar examinations pursuant to waiver by the defendants, and have been admitted to practice if they passed. Affidavits by deputies attorney general that are part of the case file indicate that between 1971 and 1978, inclusive, nine men and no women petitioned for waiver of the accredited law school rule. Seven waivers were granted and two were denied. In 1979, seven men and two women applied for such waiver. It was granted as to one man and denied to all the others. On the other hand, late applications to take the bar examination were made by six women in 1976 and by four women in 1978. All ten applications were granted.

The complaint alleges that, in light of the precedent of the aforementioned granting of some waivers, the denial of like treatment to the plaintiff and others constituted arbitrary, capricious and unequal exercise of discretion by the defendants, resulting in violation of the equal protection and due process rights generated by the Fourteenth Amendment to the U. S. Constitution.

All of the defendants have moved to dismiss the complaint pursuant to Fed.R.Civ.P. Rule 12. The Supreme Court of Nevada and the individual justices thereof cite Rule 12(b)(6), for failure of the plaintiff to state a claim upon which relief can be granted. One ground argued in support of the motion is that only a hypothetical case, as contrasted to an actual case or controversy, has been stated, in that the plaintiff has not formally applied for permission to sit for the 1980 examination (scheduled for July 30 and 31, 1980). The points and authorities in support of the motion to dismiss suggest that it is not impossible that permission would be granted this time, for whatever reason.

Other grounds for dismissal advanced by the Supreme Court and the individual justices are that recovery of money damages that would have to be paid from the State treasury are barred by the Eleventh Amendment to the U. S. Constitution; that the Nevada Supreme Court, as an entity, is not a "person" who can deprive another of rights under color of state law within the meaning of 42 U.S.C. § 1983; and that the justices are immune from money damages in civil rights actions.

Defendants State Bar of Nevada and the Board of Bar Examiners base their motion to dismiss upon Rule 12(b)(1), contending lack of subject matter jurisdiction in this U. S. District Court. Cases are cited which hold that the only avenue of review of the State Supreme Court's decision is via petition to the United States Supreme Court for a writ of certiorari. Another ground for the motion is that the State Bar is not a proper party to the action. Also, it is contended that the case is not justiciable for failure to comply with the case or controversy requirement imposed by Art. III, sec. 2 of the U. S. Constitution. Finally, the supporting papers to the motion contend that the plaintiff has failed to state facts in her complaint amounting to a denial of due process or equal protection, so that Rule 12(b)(6) provides for dismissal for failure to state a claim upon which relief can be granted.

For the purposes of these motions, the Court must deem all factual allegations by the plaintiff to be true. Mirin v. Justices of Supreme Court of Nevada, 415 F.Supp. 1178 (D.Nev.1976).

Subject Matter Jurisdiction:

Nevada Supreme Court Rule 70 provides that an applicant not recommended by the Board of Bar Examiners may petition the State Supreme Court for review of the adverse recommendation. The petition must show that the applicant meets the qualifications set forth in Nevada Supreme Court Rule 51 and, if appropriate, that the applicant was prevented from passing the bar examination by reason of the fraud, imposition or coercion of the Board of Bar Examiners. The burden is then upon the applicant to establish to the satisfaction of said Court that he or she meets the Rule 51 qualifications and, if applicable, that failure to attain a passing examination grade was due to such fraud, imposition or coercion. See Sutton v. Lionel, 585 F.2d 400 (9th Cir. 1978).

In the instant action, the plaintiff did not meet the Rule 51 requirement of graduation from an A.B.A.-approved law school, therefore she could not possibly satisfy the Supreme Court that she meets all the qualifications of that Rule. Further, she was not permitted to sit for the bar examination. As a result, no issue could be presented to the Court relating to the reason for a failing grade. By reason of the restrictive nature of Rule 70 as to bases for review, nothing could be presented to the Supreme Court for adjudication. All the plaintiff could do was petition that Court to waive the approved law school requirement. This she did, unsuccessfully.

An often-quoted passage concerning jurisdiction in cases like this is found in MacKay v. Nesbett, 412 F.2d 846 (9th Cir. 1969), where an Alaska attorney sought a federal court to enjoin and declare invalid an order of the Alaska Supreme Court which suspended him from the practice of law for one year. At page 846, the Ninth Circuit's opinion states: ". . . orders of a state court relating to the admission, discipline, and disbarment of members of its bar may be reviewed only by the Supreme Court of the United States on certiorari to the state court, and not by means of an original action in a lower federal court." Since the MacKay case involved a disciplinary action, it may be contended that the inclusion of orders concerning admission in the quoted statement was unnecessary to the resolution of the case, i. e., dictum. However, the rule has been adhered to in many jurisdictions, regardless of whether admission, discipline or disbarment was involved. In any event, the MacKay rule is not controlling here.

One important reason for not permitting a lower federal court to review the state court's order is that the issues decided by the state court are res judicata. As such they cannot again be litigated in the federal court. Goodrich v. Supreme Court of State of South Dakota, 511 F.2d 316 (8th Cir. 1975); Lipman v. VanZant, 329 F.Supp. 391 (N.D.Miss.1971). However, res judicata effect may not be given to the state court's order as to federal constitutional issues that were not litigated and could not be litigated in the state tribunal. Martinez Rivera v. Trias Monge, 587 F.2d 539 (1st Cir. 1978); see also Grossgold v. Supreme Court of Illinois, 557 F.2d 122 (7th Cir. 1977); Lipman v. VanZant, supra. Such was the situation as to the plaintiff herein. She was procedurally unable to raise constitutional issues in her petition to the Nevada Supreme Court for waiver of the approved law school requirement of Nevada Supreme Court Rule 51. Nor could she have asked review by the State Supreme Court, pursuant to Rule 70, of the Board of Bar Examiners refusal to let her sit for the bar examination. Her claims of denial of the Fourteenth Amendment equal protection and due process guarantees were not raised before the Nevada Supreme Court and could not have been raised there.

If the constitutional issues had been raised in the State Supreme Court and decided erroneously, appeal to the United States Supreme Court would have been the only available procedure to correct the error; the jurisdiction of the U. S. District Courts is original only, and not appellate. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). However, where, as...