Pettit v. Gingerich

Citation427 F. Supp. 282
Decision Date22 February 1977
Docket NumberCiv. No. B-72-964.
PartiesAlvin Dwight PETTIT et al. v. Vincent L. GINGERICH, Chairman et al.
CourtU.S. District Court — District of Maryland

COPYRIGHT MATERIAL OMITTED

Kenneth L. Johnson and Alvin Dwight Pettit, Baltimore, Md., and Jack Greenberg and Linda Greene, New York City, for plaintiffs.

Francis B. Burch, Atty. Gen., and George A. Nilson, Deputy Atty. Gen., Baltimore, Md., for defendants.

BLAIR, District Judge.

The general question presented by this suit is whether the Maryland Bar examination is color-blind. The specific question presented is whether the seven black plaintiffs and the members of the class whom they seek to represent are being and have been deprived of any rights, privileges and immunities secured by the Constitution and laws of the United States because they have failed the Bar examination and been denied admission to practice law.

Suit is brought under 42 U.S.C. §§ 1981 and 1983 to secure rights protected by the Thirteenth and Fourteenth Amendments. The court has jurisdiction under 28 U.S.C. §§ 1331 and 1343.

Defendants are Vincent Gingerich, Charles Dorsey, and Dorothy Thompson, the members of the Maryland State Board of Law Examiners (Board). No question of capacity has been raised by the defendants and it is apparent that they are being sued in their official capacity. See Burt v. Board of Trustees, 521 F.2d 1201, 1205 (4th Cir. 1975).

Because of what they perceive and allege to be intentional and inherently discriminatory practices, plaintiffs contend that the Bar examination denies them equal protection in contravention of the Fourteenth Amendment. They support their allegations in part by alleging that the Bar examination has a disproportionately adverse impact on blacks who are severely underrepresented in the legal profession. They seek as relief (1) a declaratory judgment that defendants' testing practices are racially discriminatory and unlawful, (2) a permanent injunction against such practices, (3) attorneys' fees, and (4) other appropriate relief.

This suit was filed in September 1972 and, with the court's concurrence, the parties engaged in extensive formal and informal pre-trial procedures to develop the underlying facts. The matter is now before the court on defendants' motion for summary judgment, the issues have been fully briefed and the parties heard at oral argument. Before addressing the merits, the court will deal with various preliminary questions.

Class Action

Plaintiffs seek to maintain a class action on behalf of all blacks (a) who have taken and failed the Bar examination or (b) who have not yet taken the Bar examination or (c) who have failed the Bar examination three times or more and have been denied the opportunity to retake it or (d) who wish or will wish to practice law in Maryland. Defendants oppose certification of a class on the ground that each Bar examination is a separate event and that each is graded individually. Plaintiffs have not moved separately to certify the class.

Ostensibly, determination of whether a suit is to be maintained as a class action is to be made as soon as practicable after it is commenced. F.R.Civ.P. 23(c)(1). What is practicable must be determined within the peculiar context of each case. In this case, the court (and apparently the plaintiffs) did not move to certify a class, conditionally or otherwise, for a number of reasons. Among those reasons were the development of facts which would illuminate the propriety and scope of class certification and a determination by the court of the adequacy of representation by the named plaintiffs and their counsel.

Even where the parties fail to move for class certification commentators have suggested that the court has an independent obligation to determine the propriety of a class action. See Frankel, Some Preliminary Observations Concerning Civil Rule 23, 43 F.R.D. 39, 39-42 (1967); 7A Wright & Miller, Federal Practice & Procedure, Civil, § 1785 (1972 and 1976 Supp.). But cf. Carracter v. Morgan, 491 F.2d 458 (4th Cir. 1973) (plaintiff has primary responsibility for initiating certification of class).

The court finds that the four preconditions of Rule 23(a), F.R.Civ.P., have been met in this case. It further finds that this action falls under the provisions of Rule 23(b)(2), F.R.Civ.P. As noted earlier, the suit has been pending for over four years and has received a fair amount of public notice. There is little doubt that the affected members of the class are fully aware of the suit and the issues it presents. Class certification, in the court's view, is proper in this action and the appropriate class is hereby designated to be: all blacks who have taken and failed the Maryland Bar examination.

Three-Judge Court

Defendants' answer raises the question of whether the claims in suit must be decided by a three-judge court. Title 28 U.S.C. § 2281 as it existed prior to the enactment of Pub.L. No. 94-381, effective August 12, 1976, is applicable.

Plaintiffs do not question the constitutionality of the Maryland law governing admission to the Bar. See Annotated Code of Maryland, art. 10, §§ 1-8 (1976); nor do they question the constitutionality of the Rule pursuant to which the Bar examination is administered. Rule 7(c) provides:

It is the policy of the Court of Appeals that no quota of successful candidates be set, but that, insofar as practicable, each candidate be judged upon his fitness to be a member of the bar as demonstrated by his examination answers. To this end the examination shall be designed to test the candidate's knowledge of legal principles in the subjects in which he is examined and his ability to recognize, analyze and intelligibly discuss legal problems and to apply his knowledge in reasoning their solution. The examination will not be designed primarily to test information, memory or experience.

Rule 7(c) was apparently adopted pursuant to Annotated Code of Maryland, art. 10, § 3(d) (1976).

Plaintiffs' challenge is to the constitutionality of the Bar examination which is administered pursuant to these authorities. The scope of the requirement of a three-judge court has traditionally been strictly construed. See Board of Regents v. New Left Education Project, 404 U.S. 541, 545, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972). Since neither a state law nor an order or regulation adopted pursuant thereto is under attack, this suit may be resolved by a single judge.

Abstention

Defendants argue alternatively that abstention would be appropriate in this case because the plaintiffs have available to them various state remedies. It is true that the plaintiffs may have available to them certain state remedies. What they seek in this suit, however, is not individual review of Bar examination performance but consideration of claims of racial discrimination in contravention of their federal constitutional rights. The existence of a state remedy, without more, is not sufficient to permit a federal court to abstain. Wisconsin v. Constantineau, 400 U.S. 433, 437-39, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). See also Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). Abstention is appropriate only when there are special circumstances. Harris County Comm'rs Court v. Moore, 420 U.S. 77, 83, 95 S.Ct. 870, 43 L.Ed.2d 32 (1975).

In Colorado River Water Conserv. District v. United States, 424 U.S. 800, 813-17, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), the Court noted three categories where abstention would be appropriate: (1) where a federal constitutional question might be mooted or presented in a different posture by state court determination of state law; (2) where the case presents difficult problems of state law implicating substantial public policy concerns; and (3) where with certain exceptions an injunction is sought to restrain state criminal proceedings or closely related civil proceedings or the collection of state taxes.

This case does not come within the first category. See Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 509-13, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972); Askew v. Hargrave, 401 U.S. 476, 477-78, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971) (per curiam). Plaintiffs present no state law claim nor are any uncertain issues of state law involved. There is no vague statute or administrative rule susceptible to a saving judicial construction. The statutes and rule under which the Bar examination is given are not attacked. Unlike Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970), these are not unresolved questions of state constitutional law. Moreover, there is no state action pending that could resolve or modify on state grounds the claim presented. See Harris County Comm'rs Court v. Moore, supra.

Similarly, this case does not fall within the second category of cases in which abstention is appropriate. In those cases, as a matter of comity, abstention has been ordered where complex problems have been delegated to state regulatory agencies which have developed special expertise and sensitivity to the proper consideration of predominately local factors. Alabama Public Service Comm'n v. Southern Ry. Co., 341 U.S. 341, 348-50, 71 S.Ct. 762, 95 L.Ed. 1002 (1951); Burford v. Sun Oil Co., 319 U.S. 315, 327-34, 63 S.Ct. 1098, 87 S.Ct. 1424 (1943). No subtle regulatory problems depending upon special local expertise or predominately local factors are presented in this suit.

That the suit presents no claims which would fall within the third category requires no elaboration.

Having chosen a federal forum for adjudication of their federal constitutional claims, this court concludes that plaintiffs need not first seek relief in the state forum. See Timmons v. Andrews, 538 F.2d 584, 586 (4th Cir. 1976).

Standing

After this suit was filed, plaintiffs Pettit and Bettis passed the Bar examination and were admitted to practice law in Maryland. Defendants argue that the suit is moot as to Pettit and Bettis and that they...

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