Nordgren v. Hafter

• Decision Date: 12 May 1986
• Docket Number: No. 85-4642,85-4642
• Citation: 789 F.2d 334
• Parties: Arlene NORDGREN, Plaintiff-Appellant, v. Jerome HAFTER, et al., Defendants-Appellees. Summary Calendar. Fifth Circuit
• Court: U.S. Court of Appeals — Fifth Circuit

Page 334

789 F.2d 334

Arlene NORDGREN, Plaintiff-Appellant, v. Jerome HAFTER, et al., Defendants-Appellees.

No. 85-4642

Summary Calendar.

United States Court of Appeals,Fifth Circuit.

May 12, 1986.

Arlene Nordgren, pro se.

Edwin Lloyd Pittman, Atty. Gen., Stephen J. Kirchmayr, Jr., Jackson, Miss., for Hafter & Easterling.

Appeal from the United States District Court for the Southern District of Mississippi.

Before POLITZ, WILLIAMS and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

In this appeal the Court is presented with a constitutional challenge involving as its central theme the Mississippi Bar admissions requirement that applicants for the Mississippi bar examination be graduates of American Bar Association accredited law schools absent certain statutory exceptions. We find that the district court, 616 F.Supp. 742, properly granted summary judgment in favor of appellees as to appellant's claims, and we affirm.

I.

In the fall of 1983, the Mississippi Board of Bar Admissions (the Board) denied appellant Arlene Nordgren's bar exam application because she had graduated from a non-ABA accredited law school located in California. Nordgren reapplied to the Board for admission to the February 1984 bar exam on the ground that she satisfied what she alleged to be Mississippi's alternative admissions requirement, which involves an integrated, six-year course of legal study. The Board again denied Nordgren's application on February 27, 1984.

Subsequently, Nordgren brought this 42 U.S.C. Sec. 1983 pro se action challenging the constitutionality of that portion of the related Mississippi bar admission rules which exempts from the ABA accreditation and written exam requirements graduates from non-ABA accredited Mississippi law schools but not graduates from non-ABA accredited out-of-state law schools. In addition to her constitutional claims for which she sought declaratory and injunctive relief plus compensatory and punitive damages, appellant sought recovery under antitrust and state law claims.

Following the district court's grant of summary judgment to the appellees, Nordgren timely appealed to this Court.

II.

A. Because federal trial courts and Courts of Appeal possess no power to sit in review of state court decisions, the district court in this case properly examined its subject matter jurisdiction under District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). Finding that the Board was an arm of the Mississippi Supreme Court and that its actions were judicial in nature, the district court concluded that no jurisdictional foundation supported appellant's claims arising from the Board's denial of her application. Nordgren challenges this holding on the ground that the Board's action was not a "judicial proceeding". She raises related arguments, but they involve meritless contentions concerning Article III power, abstention, diversity, pendent and "1983" jurisdiction.

In determining that the bar proceeding in this case was of a judicial nature, the district court, under the holding in Feldman, was not required to find evidence of the formal trappings normally associated with judicial proceedings. Rather, the district court properly examined whether Nordgren asserted a claim of right and whether the admissions board exercised court-delegated, judicial power by applying Mississippi admissions rules as to her individually. This Court found such a "judicial proceeding" analogue in Thomas v. Kadish, 748 F.2d 276 (5th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 3531, 87 L.Ed.2d 655 (1985), where the Texas bar admissions board applied its admissions criteria in denying Thomas admission on mental fitness grounds.

In this case the Board applied its bar admissions criteria when it denied Nordgren's application on educational "fitness" grounds. Like the Texas Board in Thomas, the Mississippi Board exercised admissions power on behalf of the state supreme court, and it did so under rules which were subject to that court's approval. Miss. Code Ann. Sec. 73-3-2(1) & (3). Furthermore Like the waiver proceedings in Feldman, the Board's actions here may not have been cast in the common mold of judicial proceedings, but they were sufficient for the district court to conclude correctly that the Board acted in a judicial capacity within the meaning of Feldman (see Thomas, 748 F.2d at 281 & n. 8) when it denied Nordgren's application. Nordgren's quest for review of the specific action as to her own application, therefore, was beyond the district court's subject matter jurisdiction. Otherwise we would be undertaking to review a state judicial decision.

the Mississippi Board's fitness determinations are subject to judicial review.

B. The district court next went on to reach Nordgren's general constitutional challenges to the Mississippi Bar rules and statutes. Although, as mentioned above, federal courts do "not have jurisdiction ... over challenges to state-court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court's action was unconstitutional", Feldman, 460 U.S. at 486, 103 S.Ct. at 1317, they do "have subject-matter jurisdiction over general challenges to state bar rules, promulgated by state courts in nonjudicial proceedings, which do not require review of a final state-court judgment in a particular case." Id.

Appellees agree that the district court properly recognized jurisdiction over Nordgren's "general constitutional challenges". But even a general attack upon the bar admission rules can implicate subject matter jurisdiction. It, therefore, requires this Court's examination to see if appellant is making such a general attack. See, e.g., Giannakos v. M/V BRAVO TRADER, 762 F.2d 1295, 1297 (5th Cir.1985).

Our jurisdictional scrutiny on this issue must be conducted by examining if Nordgren presented to the district court a general constitutional challenge to the bar admission rules which was not "inextricably intertwined" with the Board's denial of her own application. Feldman, 460 U.S. at 483 n. 16, 486-487, 103 S.Ct. at 1316 n. 16, 1316-1317.

The distinction "between general challenges to state bar rules as promulgated and challenges to [what amounts to] state court decisions in particular cases ... is often difficult to draw." Razatos v. Colorado Supreme Court, 746 F.2d 1429, 1433 (10th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2019, 85 L.Ed.2d 301 (1985); Rogers v. Supreme Court of Virginia, 590 F.Supp. 102, 104-108 (E.D.Va.1984). This Court recently applied the distinction in Thomas, where the plaintiff mounted no general attack upon the constitutionality of any rule of the Texas bar admission procedures, 748 F.2d at 277 n. 1, but did allege that his constitutional rights were deprived when the Texas Board, in applying state bar rules, denied his bar application on mental incompetency grounds. Citing Feldman, we held that since Thomas could have sought review of his constitutional claims in the Texas courts, no federal subject matter jurisdiction supported them. 748 F.2d at 281-282. Compare Howell v. State Bar of Texas, 710 F.2d 1075, 1077 (5th Cir.1983) (Feldman did not preclude general constitutional challenges to a state's disciplinary scheme applicable to attorneys), cert. denied, 466 U.S. 950, 104 S.Ct. 2152, 80 L.Ed.2d 538 (1984), cited in Hefner v. Alexander, 779 F.2d 277, 282 (5 Cir.1985); Rogers, 590 F.Supp. at 106 (no subject matter jurisdiction where plaintiff complains only that her particular constitutional rights were violated by state supreme court).

The record reveals that appellant mounts several "general constitutional challenges" which support subject matter jurisdiction within the meaning of Feldman. Feldman, for example, contended that a District of Columbia bar rule was unconstitutional because, inter alia, it created an irrebutable presumption that only accredited law school graduates are fit to practice law. It was held that the district court had jurisdiction to hear this claim because it did not require review of the judicial decision of the District of Columbia as it related specifically to Feldman's situation- In the case before us, the appellees do not urge that Nordgren should have appealed the Board's action through the Mississippi courts, raising her general constitutional challenges there. This affirmative defense was available to appellees but was not asserted by them. It was, therefore, waived. Exxon Corp. v. Texas Motor Exchange of Houston, 628 F.2d 500, 507 n. 10 (5th Cir.1980); see also, Carbonnell v. Louisiana Dept. of Health & Human Resources, 772 F.2d 185 (5th Cir.1985). Furthermore, this waiver does not implicate our subject matter jurisdiction since a general constitutional attack is within our jurisdiction. Feldman, 460 U.S. at 486, 103 S.Ct. at 1316.

; it only had to review the rule as promulgated. ¹

III.

A. Appellant's constitutional argument is largely focused on an equal protection of the laws claim grounded upon the fact that the Mississippi bar admits for examination the graduates of certain unaccredited Mississippi law schools but does not admit the graduates of unaccredited out-of-state law schools.

Nordgren's constitutional claim leads us to a review of Mississippi bar admission statutes and rules. The bar admission statutory scheme, made effective in 1979, and amended in 1983 to remove residency requirements, requires that bar applicants must be graduates of an ABA-approved law school. Miss. Code Ann. Sec. 73-3-2(2)(a) (1985 supp.). One of the exceptions, however, makes eligible for bar admission those who were enrolled in a law school in Mississippi, whether or not ABA accredited, on November 1, 1981, who also graduated before November 1984. Id.

Nordgren has stated a colorable equal protection claim, see Pappanastos v. Board of Trustees, Etc., 615 F.2d 219 (5th Cir.1980); compare Attwell v. Nichols, 608 F.2d 228, 231 (...