Mullane v. Mass. Bd. of Bar Examiners

• Decision Date: 10 September 2021
• Docket Number: 20-cv-11382-DJC
• Parties: JONATHAN MULLANE, Plaintiff, v. MASSACHUSETTS BOARD OF BAR EXAMINERS, MARILYN J. WELLINGTON, and DOES 1-10, Defendants.
• Court: U.S. District Court — District of Massachusetts

JONATHAN MULLANE, Plaintiff, v. MASSACHUSETTS BOARD OF BAR EXAMINERS, MARILYN J. WELLINGTON, and DOES 1-10, Defendants.

No. 20-cv-11382-DJC

United States District Court, D. Massachusetts

September 10, 2021

MEMORANDUM AND ORDER

Denise J. Casper United States District Judge.

I. Introduction

Plaintiff Jonathan Mullane (“Mullane”) has sued the Massachusetts Board of Bar Examiners (“BBE”) Marilyn Wellington and ten unnamed defendants (“Does 1-10”) (collectively, “Defendants”) under 42 U.S.C. §§ 1983, 1985(3) and 1986 for damages related to alleged violations of Mullane's First, Fifth and Fourteenth Amendment rights (Counts I-III) as well as declaratory and injunctive relief for same (Counts IV-VI). D 16. The Defendants now move to dismiss Mullane's complaint for lack of subject matter jurisdiction on abstention and immunity grounds. D. 23. For the reasons discussed below, Defendants' motion to dismiss is ALLOWED.

II. Standard of Review

Defendants' immunity and abstention arguments are a challenge to the Court's subject-matter jurisdiction. See Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001). Pursuant to Fed.R.Civ.P. 12(b)(1), a defendant may move to dismiss an action for lack of subject matter jurisdiction. “[T]he party invoking the jurisdiction of a federal court carries the burden of proving its existence.” Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995) (quoting Taber Partners, I v. Merit Builders, Inc., 987 F.2d 57, 60 (1st Cir. 1993)). To determine if the burden has been met, the Court “take[s] as true all well-pleaded facts in the plaintiffs' complaints, scrutinize[s] them in the light most hospitable to the plaintiffs' theory of liability, and draw[s] all reasonable inferences therefrom in the plaintiffs' favor.” Fothergill v. United States, 566 F.3d 248, 251 (1st Cir. 2009).

III. Factual Background

Unless otherwise noted, the following facts are drawn from Mullane's amended complaint, D. 16, and documents referenced therein, and are taken as true for the purposes of resolving the motion to dismiss.

On May 9, 2019, Mullane petitioned for admission to the Massachusetts bar. D. 16 ¶ 8. Wellington, the Executive Director of the BBE, and the BBE reviewed Mullane's application. Id. ¶¶ 3, 9. On September 3, 2019, a staff attorney from the BBE contacted Mullane to inquire about his transfer between law schools. Id. ¶¶ 10-11. On April 23, 2020, Defendants informed Mullane that he had passed the February 2020 bar examination, but that his application remained pending as a result of character and fitness issues. Id. ¶ 12; D. 16-1 at 4. On the same day, Wellington further requested Mullane appear before the BBE for a virtual interview. D. 16 ¶ 13; D. 16-1 at 7. On April 26, 2020, Mullane replied and asked Wellington to explain the nature of the interview, whether he was entitled to representation, and the “issues, concerns, or charges” that were the basis for the interview. D. 16 ¶¶ 15-16. Mullane did not receive a written response from Wellington or the BBE; upon his later phone call, the BBE told him that the interview was informal, and that he did not need an attorney present. Id. ¶¶ 16-17. Mullane attended the video interview on May 7, 2020, where the BBE asked him questions about his past and ongoing litigation, specifically why he brought a civil action against a sitting United States District Judge in the Southern District of Florida. Id. ¶¶ 18-20. On May 14, 2020, Wellington informed Mullane by letter that his application would remain pending until an investigation took place, conducted by the law firm of Holland & Knight, at which point the BBE would determine “the next steps” regarding Mullane's petition for admission, including the possibility of a formal hearing. Id. ¶¶ 21-22; D. 16-1 at 13. In June and July 2020, Holland & Knight communicated with Mullane's father, an attorney, about his request that the Board of Bar Overseers issue an ethical opinion as to the firm's participation in the investigation because attorneys employed at Holland & Knight clerked for and appeared before certain of the judges that Mullane has sued in Massachusetts and Florida courts. D. 16 ¶ 24; D. 16-1 at 15, 18.

IV. Procedural History

Mullane, proceeding pro se, initiated this case on July 23, 2020, D. 1, and filed an amended complaint on August 21, 2020, bringing claims under 42 U.S.C. §§ 1983, 1985(3) and 1986 for damages related to alleged violations of his First, Fifth and Fourteenth Amendment rights (Counts I-III) as well as declaratory and injunctive relief for same (Counts IV-VI). D. 16. Defendants have now moved to dismiss Mullane's complaint for lack of subject matter jurisdiction. D. 23. The Court heard the parties on the pending motion and took the matter under advisement. D. 32.

V. Discussion

A. Younger Abstention

Defendants assert that the Court must abstain from interfering with the ongoing BBE proceedings and dismiss Mullane's complaint to the extent it seeks declaratory or injunctive relief. D. 24 at 8-10 (citing Younger v. Harris, 401 U.S. 37 (1971); Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431-37 (1981)). Mullane contends that Younger abstention does not apply here because the BBE proceedings are not coercive or state initiated. D. 27 at 22.

The Court follows a three-step approach to determine whether Younger requires abstention from the ongoing state proceeding here. See Sirva Relocation, LLC v. Richie, 794 F.3d 185, 192- 93 (1st Cir. 2015) (citing Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 78-79 (2013); Middlesex Cty. Ethics Comm., 457 U.S. at 432). First, the proceeding must be a criminal prosecution, civil enforcement proceeding or a civil proceeding “uniquely in the furtherance of the state courts' ability to perform their judicial functions.” Id. at 192. Second, the proceeding must meet the three Middlesex factors: 1) it is judicial in nature, 2) it implicates important state interests, and 3) it provides an adequate opportunity for the plaintiff to raise federal constitutional challenges. Id. Third, the Court determines whether any exceptions to Younger apply, for example if the proceeding is brought in bad faith to harass, abstention is not warranted. Id. at 193.

Here, the BBE proceeding falls into the third category to which Younger extends^[1] because the Massachusetts Supreme Judicial Court (“SJC”) “retains ultimate authority to decide a person's fitness to practice law in the Commonwealth, ” Matter of Prager, 422 Mass. 86, 91 (1996) (citing Mass. Gen. L. c. 221, § 37), and bar admissions proceedings conducted by the BBE are an extension of that authority. See id.; Mass. Gen. L. c. 221 § 36 (establishing SJC authority over BBE); SJC Rule 3.01 §§ 5.1, 7.1 (delegating rulemaking authority to BBE); see also Grundstein v. Kasper, No. 5:17-cv-75, 2017 WL 11504217, at *3 (D. Vt. Dec. 20, 2017), aff'd sub nom. Grundstein v. Vermont Bd. of Bar Examiners, 748 Fed.Appx. 425 (2d Cir. 2019) (concluding that Younger required abstention from bar admission proceeding where state board of bar examiners acted as arm of state court). Moreover, the SJC's oversight of the legal profession, where attorneys admitted to the state bar are officers of the court, is a uniquely important interest. See Middlesex Cty. Ethics Comm., 457 U.S. at 433-34 (recognizing state's “extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses”); Johnson v. Bd. of Bar Overseers of Mass., 324 F.Supp.2d 276, 283 (D. Mass. 2004) (concluding same); Ellis v. Dep't of Indus. Accidents, 463 Mass. 541, 548-49 (2012) (explaining that admitting attorneys, who are officers of the court, is a “core function” of the SJC).

Next the proceeding satisfies the three Middlesex factors. See Sirva Relocation, LLC, 794 F.3d at 196. First, the BBE proceeding is judicial in nature as the attorney admissions process contains the hallmarks of a court proceeding over which the SJC delegated its judicial authority to the BBE.^[2] See Middlesex Cty. Ethics Comm., 457 U.S. at 433 (reasoning that delegation of statutory or constitutional duty to regulate bar admissions to state commission rendered those proceedings judicial in nature as commission was “arm of the court”); Johnson, 324 F.Supp.2d at 283-84 (concluding that hearing procedures of bar disciplinary board were judicial in nature); Mass. Gen. L. c. 221 §§ 35-37 (establishing BBE and SJC authority over it); SJC Rule 3.01 §§ 5.1, 7.1 (delegating rulemaking authority to BBE). Second, as explained above, Massachusetts has an “extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses.” See Middlesex Cty. Ethics Comm., 457 U.S. at 434; Sirva Relocation, LLC, 794 F.3d at 196 (concluding that proceeding implicated important state interests based on prior court decisions recognizing same). Third, Mullane has an adequate opportunity to raise federal constitutional challenges, especially given that BBE rules provide for SJC review of its recommendation. Johnson, 324 F.Supp.2d at 283-84 (concluding that third Middlesex factor was met where plaintiff has “opportunity to raise [] constitutional claims in the courts of the Commonwealth, ” which expressly provide venue for such challenges); see In re Admission to Bar of Com., 444 Mass. 393, 399 n.14 (2005) (considering due process argument of applicant denied admission to Massachusetts bar); see also Bettencourt v. Bd. of Registration In Med. of Com. of Mass., 904 F.2d 772, 778 (1st Cir. 1990) (explaining that Massachusetts law provides for SJC review “for constitutional error” of decisions by a state licensing board). Finally, none of the narrow exceptions to Younger apply here. See Sirva Relocation, LLC, 794 F.3d at...