Nordgren v. Hafter

• Decision Date: 27 August 1985
• Docket Number: Civ. A. No. E84-0130(L).
• Citation: 616 F. Supp. 742
• Parties: Arlene NORDGREN, Plaintiff, v. Jerome HAFTER, Chairman, Mississippi Board of Bar Admissions and the Mississippi Bar of Bar Admissions: David R. Smith, William Joel Blass, Bennie Turner, Grady F. Tollison, Jr., T.J. Lowe, Jr., William S. Moore, W.D. Brown, Jr., Catherine Baber, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

616 F. Supp. 742

Arlene NORDGREN, Plaintiff, v. Jerome HAFTER, Chairman, Mississippi Board of Bar Admissions and the Mississippi Bar of Bar Admissions: David R. Smith, William Joel Blass, Bennie Turner, Grady F. Tollison, Jr., T.J. Lowe, Jr., William S. Moore, W.D. Brown, Jr., Catherine Baber, Defendants.

Civ. A. No. E84-0130(L).

United States District Court, S.D. Mississippi, E.D.

August 27, 1985.

COPYRIGHT MATERIAL OMITTED

Arlene Nordgren, pro se.

Stephen J. Kirchmayer, John T. Kitchens, Asst. Attys. Gen., Jackson, Miss., for defendants.

MEMORANDUM OPINION

TOM S. LEE, District Judge.

This action is brought by the plaintiff, Arlene Nordgren, pro se, against Jerome Hafter, Chairman of the Mississippi Board of Bar Admissions,¹ the individual members of the Board and Catherine Baber, Executive Secretary of the Board,² pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343. Plaintiff's suit is based upon her being denied the opportunity to take the Mississippi Bar examination because of her failure to possess a law degree from a law school approved or accredited by the Section on Legal Education of the American Bar Association. (ABA). The plaintiff asserts that she is qualified to sit for the bar exam and alleges that the denial of her application by the Board and the requirement of ABA accreditation give rise to a variety of constitutional claims and a violation of the Sherman Antitrust Act. She has further alleged that the defendants, in denying her application, have committed certain torts including trespass to chattel, conversion, misrepresentation and fraud. Currently pending before the court are defendant's motion to dismiss or, in the alternative, for summary judgment and plaintiff's application for review, motion for summary judgment/declaratory judgment and motion for declaratory judgment.

The plaintiff, a legal resident of the State of California, currently resides in Meridian, Mississippi with her husband, a United States Naval Officer stationed at the Meridian Naval Air Station. She holds a bachelor's degree from the University of Southern California and is a graduate of National University School of Law, a non-ABA-accredited law school.³ The defendants include members and an employee of the Mississippi Board of Bar Admissions. The Board of Bar Admissions was created by the legislature and is composed of nine individuals appointed by the Justices of the Supreme Court of Mississippi. Miss.Code Ann. § 73-3-2(3) (Supp.1984). While the power to admit persons to practice law in the State of Mississippi is vested exclusively in the State Supreme Court, Miss.Code Ann. § 73-3-2(1), the Board has the authority to promulgate rules necessary for the administration of its duties subject to the approval of the Chief Justice of the State Supreme Court. Miss.Code Ann. § 73-3-2(3). The primary function of the Board is to inquire into the qualifications, legal training and character and fitness of those persons seeking to practice law in Mississippi, and then either certify or not certify such individuals as meeting the qualifications for admission to practice law as set out in Miss.Code Ann. § 73-3-2.

On July 19, 1983, plaintiff sent an application along with check for the required $325.00 application fee to the Board of Bar Admissions. Mississippi, like many other states, requires that applicants be graduates of a law school provisionally or fully approved by the ABA. Miss.Code Ann. § 73-3-2(2)(a). Because the plaintiff's application revealed that she had not graduated from an ABA-accredited law school, it was not docketed and her check was not deposited in the state treasury. In January 1984, plaintiff was informed that her application had not been processed and that her check had been returned to her. She never received the actual check but later did receive a photocopy of the check which showed it to be torn in several places, presumably by someone working in the office of the Board of Bar Admissions. In a letter dated February 7, 1984, from defendant Hafter to plaintiff's attorney, J.L. Pritchard, Hafter stated that if plaintiff desired to proceed further with her application, she would have to send to the Board's office a new application fee together with any additional material to be considered. He further advised that if she decided to proceed, her application fee would be deposited and would not be refundable. On February 13, 1984, in accordance with Hafter's letter, the plaintiff sent a second check to the Board, in effect asking that her application be considered. On February 27, 1984, after polling the members of the Board, Hafter, as Chairman of the Mississippi Board of Bar Admissions, entered an order denying the plaintiff's application and stating:

The Board finds that applicant has not submitted satisfactory evidence of compliance with the qualifications for admission and in particular that applicant does not satisfy the requirements of Miss. Code 1972 § 73-3-2(2) in that applicant has not completed a general course of study in a law school which is provisionally or fully approved in the section on legal education on admission to the American Bar Association.

On September 10, 1984, plaintiff filed suit challenging the Board's action in denying her application and the general constitutionality of the ABA-accreditation requirement. Her complaint requests that she be granted the "diploma privilege"⁴ or, in the alternative, that she be allowed to take the bar exam under the court's supervision. She also asks that the court hold that graduates from non-ABA-accredited law schools which maintain a six-year integrated pre-law and law curriculum are eligible to take the Mississippi bar exam. Plaintiff further requests this court to rule that the 1983 amendment to Miss.Code Ann. § 73-3-2 is unconstitutional. She lastly asks that she be given a proper forum to adjudicate what she has termed violations of the ABA Canons of Ethics.

JURISDICTION

The plaintiff, in her brief in opposition to the defendant's motion, states that this court has jurisdiction to hear this matter pursuant to District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). Because almost every court considering cases involving bar admissions or disciplinary proceedings decided since Feldman has found it necessary to examine closely a plaintiff's allegations and the court's subject matter jurisdiction in light of that decision, this court will also consider the jurisdiction question. Thomas v. Kadish, 748 F.2d 276 (5th Cir.1984); Razatos v. Colorado Supreme Court, 746 F.2d 1429 (10th Cir. 1984); Lowrie v. Goldenhersh, 716 F.2d 401 (7th Cir.1983); Wood v. Orange County, 715 F.2d 1543 (11th Cir.1983); Howell v. State Bar of Texas, 710 F.2d 1075 (5th Cir.1983); Rogers v. Supreme Court of Virginia, 590 F.Supp. 102 (E.D.Va.1984); Solomon v. Emanuelson, 586 F.Supp. 280 (D.Conn.1984); Rosenfeld v. Clark, 586 F.Supp. 1332 (D.Vt.1984); Levanti v. Tippen, 585 F.Supp. 499 (S.D.Cal.1984); Zimmerman v. Grievance Committee, 585 F.Supp. 29 (N.D.N.Y.1983); Mattas v. Supreme Court of Pennsylvania, 576 F.Supp. 1178 (W.D.Pa.1983).

In Feldman, two applicants for admission to the District of Columbia Bar, Feldman and Hickey, petitioned the District of Columbia Circuit Court of Appeals seeking waivers of the bar admission rule requiring graduation from a law school approved by the ABA. The court denied their petitions and they each filed suit in the United States District Court for the District of Columbia challenging the denials of their waiver petitions and the constitutionality of the bar admission rule. The district court dismissed both complaints for lack of subject matter jurisdiction, holding the waiver proceedings to be judicial in nature and, in regard to Feldman's case, stating that if it were to "assume jurisdiction ... of this law suit, it would find itself in the unsupportable position of reviewing an order of a jurisdiction's highest court." 460 U.S. at 470, 103 S.Ct. at 1308.⁵ On appeal the United States Court of Appeals for the District of Columbia Circuit reversed and remanded, holding that the waiver proceedings were not judicial acts and that consideration of the constitutional claims by the district court was not foreclosed.⁶

The Supreme Court vacated and remanded the cases for further proceedings, holding that district courts have jurisdiction over general constitutional challenges to state bar rules promulgated by state courts in non-judicial proceedings. The Court also held that the waiver proceedings in the District of Columbia Court of Appeals were judicial in nature and that the district court would not have jurisdiction to review a decision of a state court in such a proceeding even if the plaintiff alleges that the state court's action was unconstitutional. The Court, citing Doe v. Pringle, 550 F.2d 596 (10th Cir.1976), and emphasizing the distinction between general challenges to state bar admission rules and claims that a state court has unlawfully denied a particular applicant admission, quoted the following from that opinion:

The United States District Court, in denying the plaintiff relief, declared that there is a subtle but fundamental distinction between two types of claims which a frustrated bar applicant might bring to federal court: The first is a constitutional challenge to the state's general rules and regulations governing admission; the second is a claim, based on constitutional or other grounds, that the state has unlawfully denied a particular applicant admission. The Court held that while federal courts do exercise jurisdiction over many constitutional claims which attack the state's power to license attorneys involving challenges to either the rule-making authority or the administration of the rules, ... such is not true where review of a state court's adjudication of a particular application is sought. The Court ruled that the latter claim may be heard, if at all,

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