Poats v. Givan

• Decision Date: 13 May 1981
• Docket Number: No. 80-2030,80-2030
• Citation: 651 F.2d 495
• Parties: Greyling Byron POATS, Plaintiff-Appellant, v. Richard M. GIVAN, Chief Justice, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 495

651 F.2d 495

Greyling Byron POATS, Plaintiff-Appellant, v. Richard M. GIVAN, Chief Justice, et al., Defendants-Appellees.

No. 80-2030.

United States Court of Appeals Seventh Circuit.

Submitted May 13, 1981. ^*

Decided June 10, 1981.

Greyling Byron Poats, pro se.

Theodore L. Sendak, Atty. Gen. of Indiana, Indianapolis, Ind., for defendants-appellees.

Before SPRECHER, WOOD and CUDAHY, Circuit Judges.

PER CURIAM.

We hold that the Indiana Supreme Court rule limiting the number of bar examinations which an applicant may take to four is constitutional.

I

The plaintiff is a law school graduate ¹ who has failed the Indiana bar examination on four different occasions. ² He brought this action under 42 U.S.C. §§ 1983 and 1985(3) against the justices of the Indiana Supreme Court and the members of the State Board of Law Examiners, for damages and for injunctive and declaratory relief. The plaintiff contends, as summarized in his complaint, as follows:

... (T)he plaintiff has been denied his right to "due process" as guaranteed pursuant to the Fifth (5th) and Fourteenth (14th) Amendments by not being allowed a hearing in regards to taking the Indiana Bar Examination a fifth (5th) time, that by not being allowed to sit for the February 1980, and future Indiana Bar Examinations if necessary, violates equal protection under the laws as guaranteed pursuant to the Fourteenth (14th) Amendment ....

The district court dismissed the action upon finding that the complaint failed to state a claim upon which relief could be granted. The plaintiff-applicant for admission has appealed.

In Indiana, the Supreme Court has exclusive jurisdiction to admit attorneys to practice law. Rule 3, Indiana Supreme Court Rules for Admission to the Bar and the Discipline of Attorneys. The satisfactory passing of a bar examination, administered by the State Board of Law Examiners, is a prerequisite to admission. ³ Rule 17. Rule 20 of the Supreme Court's Rules provides:

No applicant shall be admitted to more than four (4) examinations.

II

The plaintiff-applicant's complaint is filled with repetitious claims of lack of a due process hearing. Applicant alleges that he "was informed (by the Supreme Court Administrator) that he could not file for mandatory relief with the Supreme Court." Not being able to file for mandatory relief is not equivalent to denial of a hearing.

The Indiana Constitution, Article 7, section 4, provides in part that the "Supreme Court shall have no original jurisdiction except in admission to the practice of law ...." Rule 14 of the Indiana Supreme Court Rules for Admission provides in part as follows:

Review of final action by the state board of law examiners shall be as follows:

(1) The state board of law examiners shall adopt such procedure for review of an applicant, aggrieved by failure of such board to award said applicant a satisfactory grade upon applicant's first examination as shall be approved by said board, and the decision by said board shall be final; and no appeal to the Supreme Court shall be permitted upon the failure of applicant to pass the first examination.

(2) The state board of law examiners shall adopt such procedure for review of an applicant, aggrieved by failure of said board to award said applicant a satisfactory grade upon any re-examination, as shall be approved by the Supreme Court of Indiana. Any applicant aggrieved by the final review action of said board, in refusing to recommend to the Supreme Court of Indiana the admission of the applicant to practice law in Indiana by reason of applicant's failure to pass the written examination upon any re-examination, may within twenty (20) days of such final determination by said board, file a petition with said board for review of the same by the Supreme Court; whereupon, the secretary of said board shall, within five (5) days thereafter, transmit to the Supreme Court, the file relating to such applicant's written examination including the transcript of record of all actions by the state board of law examiners relating thereto, and the court shall enter such order as in its judgment is proper, which shall thereupon become final.

The Indiana Supreme Court has accepted its original jurisdiction under the above rule and under predecessor rules. Stern v. State Board of Law Examiners, 245 Ind. 526, 199 N.E.2d 850 (1964); Petition of Moritz, 244 Ind. 374, 192 N.E.2d 458 (1963).

The applicant has not alleged that the review outlined in Rule 14 was denied to him or was not available to him. In any event the possibility of re-examination satisfied due process. Whitfield v. Illinois Board of Law Examiners, 504 F.2d 474, 478 (7th Cir. 1974); Tyler v. Vickery, 517 F.2d 1089, 1104 (5th Cir. 1975), cert. denied, 426 U.S. 940, 96 S.Ct. 2660, 49 L.Ed.2d 393 (1976).

The applicant has been allowed to take the examination and three re-examinations, each with the opportunity for review by the Indiana Supreme Court. In our view, this adequately satisfies due process requirements for a hearing.

III

What remains is applicant's argument that an absolute limit of four examinations is unconstitutional.

A state can require high standards of qualification, such as proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957). Bar examinations have a rational connection with the applicant's fitness or capacity to practice law. Whitfield v. Illinois Board of Law Examiners, 504 F.2d 474, 476-77 (7th Cir. 1974); Feldman v. State Board of Law Examiners, 438 F.2d 699, 705 (8th Cir. 1971); Chaney v. State Bar of California, 386 F.2d 962, 964 (9th Cir. 1967), cert. denied, 390 U.S. 1011, 88 S.Ct. 1262, 20 L.Ed.2d 162 (1968). The determination of which individuals have the requisite knowledge and skill to practice law is properly committed to the board of law examiners. Martin-Trigona v. Underwood, 529 F.2d 33, 35 (7th Cir. 1975). The mere fact that an applicant has failed to pass a state bar examination does not in itself create federal jurisdiction to review that failure. Doe v. Pringle, 550 F.2d 596 (10th Cir. 1976), cert. denied, 431 U.S. 916, 97 S.Ct. 2179, 53 L.Ed.2d 227 (1977); Whitfield, 504 F.2d at 476. Cf. Theard v. United States, 354 U.S. 278, 281, 77 S.Ct. 1274, 1276, 1 L.Ed.2d 1342 (1957) (narrow scope of federal jurisdiction to review state disbarments).

The applicant's difficulty in this case is that he must allege facts to establish by his complaint that although any single failure to pass a bar examination is not reviewable by a federal court, four such failures (and the lack of an opportunity to try for a fifth or more) somehow break the rational connection otherwise existing between passage of the bar examination and an applicant's fitness or capacity to practice law. Stating the proposition more favorably to the applicant, he contends that he is entitled to unlimited attempts to pass and that the number of failures is entirely irrelevant to the question of his fitness to practice.

Twenty-six states impose a limit on the number of bar examinations which an applicant may take. ⁴ Of these, fifteen states provide for the taking of examinations beyond the limited number by special permission of either the state supreme court or the state board of law examiners and usually after proof of further law study. ⁵ The remaining eleven states, including Indiana, impose an absolute limit with no discretionary power in the supreme court or board of law examiners to permit additional examinations. Of these eleven states, one (Alabama) fixes the limit at 5 examinations; four states (Indiana, Minnesota, Nevada and West Virginia) fix the limit at 4 examinations; and six states (Delaware, Florida, Kentucky, Nebraska, Oklahoma and Oregon) fix the limit at only 3 examinations. ⁶

Of course, even the fifteen states which express in their rules some flexibility regarding the limit on the number of examinations do so at the complete discretion of the state supreme court or board of bar examiners, and that discretion is apparently not freely exercised. For example, Colorado limits the number of examinations to only two, grants permission routinely to take a third examination, but makes it very difficult to take a fourth examination.

In Younger v. Colorado State Board of Law Examiners, 625 F.2d 372, 374 (10th Cir. 1980), the court, in upholding as constitutional the denial by the Colorado Supreme Court of the applicant's petition to take a fourth examination, indicated how difficult that procedure was:

The Colorado Supreme Court generally imposes a waiting requirement of two or three years after a third failure. The reason for the waiting period is to allow the individual to mature and possibly engage in some kind of law-related work.... The Admissions Committee will then review an application to take the examination a fourth time, focusing on the prior examination scores, what the individual has been doing in the interim, and any other relevant factors an individual may present or which the Admissions Committee may discover....

If the results of the review of the Admissions Committee so justify, a recommendation is made to the full Colorado Supreme Court that an independent evaluation of the applicant be made to determine whether the person should be permitted to take the examination a fourth time. The Court accepts this recommendation from the Admissions Committee and the individual is then sent to confer with a local law professor.

The professor reviews the individual's prior bar examinations, confers personally with the individual, and reviews any other relevant material. If the professor recommends that permission be granted to take the examination a fourth time, it is always on the condition that certain courses be taken in areas where the person...