Parrish v. Board of Com'rs of Alabama State Bar, s. 73-3553

• Decision Date: 21 June 1976
• Docket Number: 74-1523,Nos. 73-3553,s. 73-3553
• Citation: 533 F.2d 942
• Parties: Alfredo G. PARRISH et al., etc., Plaintiffs-Appellants. v. BOARD OF COMMISSIONERS OF the ALABAMA STATE BAR et al., etc., Defendants-Appellees. ALABAMA BLACK LAWYERS ASSOCIATION et al., Plaintiffs-Appellants, v. BOARD OF COMMISSIONERS OF the ALABAMA STATE BAR, etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 942

533 F.2d 942

Alfredo G. PARRISH et al., etc., Plaintiffs-Appellants. v. BOARD OF COMMISSIONERS OF the ALABAMA STATE BAR et al.,

etc., Defendants-Appellees.

ALABAMA BLACK LAWYERS ASSOCIATION et al., Plaintiffs-Appellants, v. BOARD OF COMMISSIONERS OF the ALABAMA STATE BAR, etc., et

al., Defendants-Appellees.

Nos. 73-3553, 74-1523.

United States Court of Appeals, Fifth Circuit.

June 21, 1976.

U. W. Clemon, Birmingham, Ala., Elaine R. Jones, New York City, for plaintiffs-appellees.

Truman Hobbs, Champ Lyons, Jr., William H. Morrow, Jr., Montgomery, Ala., for defendants-appellees.

Appeals from the United States District Court for the Middle District of Alabama.

Before TUTTLE, WISDOM and GEE, Circuit Judges:

TUTTLE, Circuit Judge:

The Court, on its own motion, vacated its previous opinion in this case, 505 F.2d 12, by order dated February 20, 1975. Subsequently, by order of a majority of the active judges, the case was reheard en banc on the sole issue of the correctness of the trial court's denial of a motion, filed pursuant to 28 U.S.C.A. § 144, to disqualify the district judge who decided the matter. As to this issue, this Court, en banc, with three judges dissenting, held that even though the amended section 455 of 28 U.S.C. is to be the standard to apply to this pending suit the affidavit before the trial court was insufficient to warrant this Court's reversing the trial judge's failure to disqualify himself. The remaining issues on appeal were remanded by the Court en banc to the original panel for further consideration, Parrish, et al., etc. v. Board of Commissioners, et al., 524 F.2d 98 (5th Cir. 1975).

There now remain for our consideration all of the grounds for appeal originally asserted with the exception of that related to the disqualification of the trial judge.

I. PROCEDURAL BACKGROUND.

The Alabama Black Lawyers Association (ABLA) and eight named plaintiffs appeal the grant of summary judgment against them on all issues in their class action alleging racial discrimination by the Boards of Commissioners and Bar Examiners of the Alabama Bar Association in their policies and practices governing admission to the bar.

Briefly stated, the suit sought injunctive and declaratory relief, under 42 U.S.C. §§ 1981-1983 and 28 U.S.C. §§ 2201-2202, respectively, for a class defined as "all Black persons who have applied or will apply for admission to the Alabama Bar, or who would have so applied but for having been discouraged or prevented from doing so by the (defendant's) discriminatory practices" and who meet all valid non-discriminatory standards for admission. The gist of the complaint, which was filed October 31, 1972, is that the Alabama bar examiners unconstitutionally discriminated against black applicants by identifying their supposedly anonymous examination papers and then grading them lower than white applicants who displayed equal proficiency. The complaint also alleged that the bar examination which then ¹ was exclusively written essay, "timed and closed-book" is "unvalidated" and not sufficiently "job-related," and thus unconstitutional because it fails blacks in disproportionately high numbers compared to whites.

Shortly after the complaint was filed, each party filed several motions. Most importantly, the defendants moved to dismiss plaintiffs Eddie Jones, Thomas W. Gray and the ABLA for lack of standing, and the plaintiffs moved that the trial judge recuse himself pursuant to 28 U.S.C. § 144. The trial judge granted defendants' motion to dismiss Jones, Gray and the ABLA, but refused after a hearing had been held and affidavits filed to recuse himself.

Both parties undertook extensive discovery. Plaintiffs received nearly 150 pages of answers to interrogatories from defendants and took two lengthy depositions from members of the Board of Bar Examiners. Defendants received answers to interrogatories from each of the named plaintiffs. None of the discovery revealed specific instances where the anonymity of the examinees had been compromised; at most, the plaintiffs swore that there were one or two instances when an examiner could have seen an examinee's test number. The plaintiffs' case thus boiled down to a proof of statistics. Statistics produced during the litigation showed, for example, that in the last ten bar examinations the passing rate for blacks had been 32% while it had been 70% for whites. Furthermore, in a state whose population is 25% black, the number of black lawyers is less than 1%.

Defendants moved for summary judgment on April 2, 1973, but the trial court withheld a ruling for over four months in order to give plaintiffs "ample opportunity to obtain by discovery facts to be used in traversing the motion." Plaintiffs accomplished all of their desired discovery during this period, with one exception: defendants failed to produce copies of all answer sheets for the February 1973 bar examination. Defendants objected to producing these documents on the grounds that they were not relevant and material to the complaint. Plaintiffs filed a motion on May 28, 1973, to compel production.

Without specifically ruling on this motion, the trial court entered summary judgment for defendants on all issues on August 21, 1973. The court found that there was no material issue of fact between the parties and held that "under the circumstances . . . the disparity in percentage of failures among blacks as compared to whites has little weight and fails to make out a prima facie case sufficient to realign the burden of proof so as to require the Defendants to establish that the exams are not discriminatory or so as to require them to validate the exams."

With respect to plaintiffs' other main contentions, the court held that the defendants had a compelling state interest to identify attorneys, and thus that requiring applicants to submit photographs of themselves prior to taking the examination does not "violate their constitutional rights;" however, the court declined to consider the constitutionality of procedures (particularly a personal interview) applied to applicants petitioning to take the exam for a fourth time, following three attempts as of right, because "no Plaintiff in this lawsuit has the standing to raise the question."

Appellants' remaining points of appeal are:

1) that plaintiffs Jones, Gray and the ABLA should not have been dismissed from the suit for lack of standing;

2) that summary judgment was inappropriate, because discovery was incomplete and there were material issues of fact;

3) that the unvalidated bar examinations, which fails blacks in disproportionately high numbers, is insufficiently job-related to be constitutional;

4) that the requirement of a photograph, as part of the application to take the bar examination, is unconstitutional;

5) that the procedures governing petitions to take the bar examination for a fourth time are arbitrary and capricious, and thus violate the appellants' right to due process of law.

II. PARTIES TO APPEAL.

Before discussing appellants' contentions, it is necessary to dispose of a jurisdictional objection raised by the appellees in their brief. Appellees argue that only appellants Alfredo Parrish and Henry Thompson are properly before this Court, because the plaintiffs' notice of appeal and amended notice of appeal expressly named only Parrish and Thompson. This issue actually drops out of the case, however, because when this failure was brought to the attention of the appellant by the filing of the appellees' briefs, they proceeded to remedy the defect. This was done when the appellants learned that the judgment which they sought to appeal originally was not a "final judgment" since it did not meet the requirement of F.R.C.P. Rule 58 that a final judgment must be "set forth on a separate document." Appellants thereupon caused the trial court to enter a new final judgment on the separate document as required by the Rule. They thereupon perfected an appeal, naming all of the parties to the original complaint. This appeal was thereafter, by action of this Court, consolidated with the pending appeal, thus accounting for the double numbered captions in this case. An appeal from such subsequent judgment entered to conform to the "separate document" requirement has been expressly approved by the Supreme Court in United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973). We conclude, therefore, that all the parties designated in the notice of appeal filed in No. 74-1523, the second appeal, are now before the Court in the consolidated cases.

III. DISMISSAL OF JONES, GRAY AND ABLA.

The trial judge granted defendants' motion to dismiss plaintiffs Eddie Jones and Thomas W. Gray on the ground that their claims were barred by Alabama's one-year statute of limitations. Neither party disputes the applicability of the statute.

Jones and Gray were named as plaintiffs in the suit to represent a class, in the words of the appellants, "who were arbitrarily and capriciously denied the opportunity to sit a fourth time for the Alabama Bar examination." Both Jones and Gray took the bar examination three times and failed each time. ² In order to sit for the examination a fourth time, each appellant needed special approval from the appellee Board of Commissioners. ³

This issue has also dropped out of the case during its pendency here. Although not mentioned by either party, the Court notes that the Alabama statute has been amended during the pendency of this litigation in a manner that eliminates the basis on which the appellants premised their contention that they were denied their rights to seek a fourth-time examination by virtue of arbitrary, capricious conduct taken without any ascertainable standards. This question was eliminated from the case when the Alabama Legislature by an act approved August 30, 1973, while the appeal was pending in this Court, did away with the fourth-time limit which had been in...