Rogers v. Supreme Court of Virginia

• Citation: 590 F. Supp. 102
• Decision Date: 07 June 1984
• Docket Number: Civ. A. No. 84-0027-R.
• Parties: Edythe Mae ROGERS v. SUPREME COURT OF VIRGINIA and Virginia Board of Bar Examiners.
• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)

590 F. Supp. 102

Edythe Mae ROGERS v. SUPREME COURT OF VIRGINIA and Virginia Board of Bar Examiners.

Civ. A. No. 84-0027-R.

United States District Court, E.D. Virginia, Richmond Division.

June 7, 1984.

Edythe Mae Rogers, pro se.

Gerald L. Baliles, Atty. Gen., James T. Moore, III, Sr., Asst. Atty. Gen., Neil A. G. McPhie, Asst. Atty. Gen., Richmond, Va., for defendants.

OPINION AND ORDER

WARRINER, District Judge.

Presently before the Court is defendant Supreme Court of Virginia and Virginia Board of Bar Examiners' ripe motion to dismiss. Plaintiff has responded to this motion. Defendants Supreme Court of Virginia and Virginia Board of Bar Examiners have neglected to file a rebuttal. On 3 April 1984, this Court entered an order requiring the parties to file supplemental briefs with respect to the questions presented by District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). Defendants filed their brief on 13 April 1984; plaintiff filed her brief 23 April 1984, and defendants replied to plaintiff's brief on 26 April 1984. The matter, therefore, is ripe for adjudication.

I conclude that although this Court has subject matter jurisdiction over the action, the complaint fails to state a claim under which relief can be granted (Fed.R.Civ.P. 12(b)(6)). Accordingly, for the reasons set forth below, the motion to dismiss is GRANTED.

Plaintiff is a black female who has applied, sat for, and failed the Virginia Bar Examination on four separate occasions: February, 1980; July, 1980; July, 1982; and February, 1983. The Virginia Board of Bar Examiners (Board), hence, has refused to license plaintiff to practice law. In July of 1980, and again in July of 1982, plaintiff availed herself of the opportunity provided by the Rules of the Board for unsuccessful examinees to review examinations with a Bar Examiner. Being unsatisfied, plaintiff petitioned the Supreme Court of Virginia to review the adverse action of the Board. Defendant Board filed a motion to dismiss plaintiff's petition on the grounds that the Supreme Court of Virginia lacked appellate and original jurisdiction to review adverse actions of the Board. The Supreme Court of Virginia notified plaintiff of its refusal of her petition for review. No opinion or reason was given.

Plaintiff brings this action in federal court under 15 U.S.C. §§ 1 and 15; the First, Fifth, and Fourteenth Amendments to the Constitution. Plaintiff invokes the jurisdiction of the Court under 28 U.S.C. § 1343; 42 U.S.C. §§ 1981, 1983, 1985(a) sic and 1988.¹

It is crucial to determining the propriety of granting defendants' motion to dismiss that one understand the exact nature of plaintiff's complaint as articulated in the various pleadings she has filed with this Court. Plaintiff complains of an interconnected sequence of acts by the Board of Bar Examiners and the Supreme Court of Virginia culminating in what she characterizes as the essence of her complaint:

It should be noted that Plaintiff is not asking this Court to review a determination of the merits of her case because she disagrees with the Virginia Supreme Court's decision on the merits of her case. Rather, she is asking this Court to determine whether the Virginia Supreme Court's refusal to entertain the merits of her case constitutes a violation of her right to due process of law.

Plaintiff's Supplemental Brief in Opposition to Defendant's Motion to Dismiss at 4.

Nor is plaintiff registering an appeal, on constitutional grounds, from the Supreme Court of Virginia's refusal to entertain her petition. Rather:

Plaintiff's complaint raises a general challenge to the procedures instituted by the Virginia Board of Bar Examiners, administrative arm of the Virginia Supreme Court, in the designing and grading of the Virginia Bar Examination. Further, plaintiff alleges in her complaint that the Virginia Bar Examiners administer the examination and distribute licenses after the administration of the Examination in constitutionally impermissible ways. (See Plaintiff's Complaint). Plaintiff raises the question whether the refusal to consider her Petition is a Constitutionally permitted act within the license granting process. (emphasis added). Id. at 5.

In other words, plaintiff's allegations as to the unconstitutionality vel non of the Board's examining procedures are not before this Court for adjudication. Rather, plaintiff sets forth the Board's procedures in grading and designing the exam only as a necessary preliminary to comprehending the heart of her complaint. Faced with a challenge to the constitutionality of the Board's policies on test design and scoring, the Supreme Court of Virginia "refused" plaintiff's petition for review. That refusal to hear such a constitutional challenge was itself an unconstitutional denial of due process, argues plaintiff.

But, plaintiff argues further, it is no personal denial of due process of law that she challenges. Instead, she complains of a general, a systemic policy, as to all unsuccessful examinees, whereby the Supreme Court of Virginia is enabled to refuse to hear petitions for review of allegedly unconstitutional Board policies.

The two kinds of claims which may be brought by an unsuccessful bar applicant were articulated by the Tenth Circuit in Doe v. Pringle, 550 F.2d 596, 597 (10th Cir.1976), cert. denied, 431 U.S. 916, 97 S.Ct. 2179, 53 L.Ed.2d 225 (1977):

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.

In District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 485-86, 103 S.Ct. 1303, 1316-17, 75 L.Ed.2d 206, 224-25, the Supreme Court approved the Doe emphasis on the distinction between "general challenges to state bar admission rules and claims that a state court has unlawfully denied a particular applicant admission." As to the first category, the Supreme Court held, "United States District Courts ... have subject matter jurisdiction over general challenges to state bar rules, promulgated by state courts in non-judicial proceedings, which do not require review of a final state court judgment in a particular case."

As to the second category of challenge, the individual claim of deprivation, the Supreme Court was equally explicit as to the lack of jurisdiction of a district court:

They district courts do not have jurisdiction, however, 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. Review of those decisions may be had only in this court. 28 U.S.C. § 1257.

Id., 460 U.S. at 486, 103 S.Ct. at 1317, 75 L.Ed.2d at 225.

The Feldman court gave guidance in distinguishing attacks on the constitutionality of State bar rules, per se, promulgated by the supreme court of a State in its administrative capacity, from challenges of a judicial determination by a State court in which petitioner raises constitutional claims peculiar to himself.

In Feldman, two bar applicants filed petitions in the District of Columbia Court of Appeals, the functional equivalent of a State supreme court, asking for waivers of the District of Columbia Bar Admission Rule requiring that applicants have graduated from an American Bar Association approved law school. The District of Columbia Court of Appeals denied the petitions, whereupon the applicants filed complaints in the United States District Court for the District of Columbia challenging the District of Columbia Court of Appeals' denial of their waiver petition. The United States District Court for the District of Columbia dismissed the complaints on the ground that it lacked subject matter jurisdiction. The United States Court of Appeals for the District of Columbia Circuit reversed the United States District Court, and held that the District Court had jurisdiction to review the denial of the applicants' requests for waivers of the Bar Admission Rule.

On certiorari, the United States Supreme Court first distinguished the judicial function of a State supreme court in denying an applicant a license to practice law on unconstitutional grounds and the administrative function of such a court, in promulgating rules, themselves unconstitutional. As to the judicial function the Supreme Court quoted its early holding in Prentis v. Atlantic Coast Line, 211 U.S. 210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908):

"A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power .... The nature of a proceeding depends not upon the character of the body but upon the character of the proceedings."

Feldman, 460 U.S. at 477, 103 S.Ct. at 1312, 75 L.Ed.2d at 219.

Applying this standard, the Supreme Court held that the proceedings in the District of Columbia Court of Appeals surrounding Feldman's and Hickey's petitions for waiver were judicial in nature, not legislative, nor ministerial, nor administrative. the District of Columbia Court of Appeals was not looking to the future in attempting to change existing conditions; nor was it engaging in rule-making; nor was it specifying the requirements of eligibility or the course of study for applicants for admission to the Bar. Neither did the District of Columbia Court of Appeals merely engage in routine ministerial action. Instead, the Court was called upon to investigate, declare, and enforce the rules, as they stood on present or past facts and under laws supposed already to exist. Feldman, 460 U.S. at 479-80, 103 S.Ct. at 1313-1314, 75 L.Ed.2d at 220-221.

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