Younger v. Colorado State Bd. of Law Examiners, 80-1220
| Decision Date | 03 September 1980 |
| Docket Number | No. 80-1220,80-1220 |
| Citation | 625 F.2d 372 |
| Parties | Glenn F. YOUNGER, Plaintiff-Appellee, v. The COLORADO STATE BOARD OF LAW EXAMINERS, the Supreme Court of the State of Colorado, Honorable William H. Erickson, Honorable Luis D. Rovira, Honorable Paul V. Hodges, Honorable Robert B. Lee, Honorable Jean E. Dubofsky, Honorable George E. Lohr, Individually and as Justices of the Supreme Court of the State of Colorado, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Mary J. Mullarkey, Sol. Gen., Denver, Colo. (J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., and Howard Kenison, Asst. Atty. Gen., Denver, Colo., were on brief), for defendants-appellants.
Gina B. Weitzenkorn and Wiley Y. Daniel, Denver, Colo. (Frederick Charleston and Glenn F. Younger, Denver, Colo., pro se, were on brief), for plaintiff-appellee.
Before HOLLOWAY, BREITENSTEIN and DOYLE, Circuit Judges.
Plaintiff-appellee Glenn F. Younger brought this action in the district court pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 2201 and the Fourteenth Amendment against defendants-appellants the Colorado State Board of Law Examiners, the Colorado Supreme Court and the individual Justices of the Colorado Supreme Court. Jurisdiction is claimed under 28 U.S.C. §§ 1331 and 1343(3). Plaintiff alleged he was denied due process and equal protection by the defendants' adoption and enforcement of Rule 214, Colo.R.Civ.P., under which he has been denied an opportunity to sit again for the Colorado bar examination after three earlier unsuccessful examinations.
Rule 214, which governs reexamination for individuals who have failed the Colorado bar examination, states (I R. 20):
Any applicant in Class C who fails on examination to obtain a passing grade may take the next succeeding examination. If he then fails he will be reexamined only by special permission of the Court en banc and for good cause shown. 1
The district court concluded that the final preclusion of any opportunity for reexamination under Rule 214, regardless of requirements for additional study, training or development, was a violation of the Fourteenth Amendment to the United States Constitution. The court entered a declaratory judgment to this effect and enjoined the defendants from applying Rule 214 so as to deny plaintiff the opportunity to sit again for the Colorado bar examination. Younger v. Colorado State Board of Law Examiners, 482 F.Supp. 1244 (D.Colo.). The defendants appeal from that judgment.
Defendants sought a stay of the judgment from the district court, pending final resolution of this appeal. The district court refused to grant a stay. I R. 86. Appellants then filed in this court a motion to stay enforcement of the judgment. We granted that motion on March 10, 1980, and accelerated this appeal.
The factual background
Plaintiff Younger is a 1976 graduate of the University of Colorado School of Law. In June 1976 he obtained employment as a law clerk with the Legal Aid Society of Metropolitan Denver and was to be promoted to an attorney position after passing the Colorado bar examination. III R. 35-36. After meeting the necessary moral and academic prerequisites, Mr. Younger took the July 1976 Colorado bar examination and failed. He subsequently took and failed the February 1977 examination.
Pursuant to Rule 214 he then petitioned the Colorado Supreme Court and received permission to take the bar examination a third time in July 1977. After an illness prevented him from completing that examination, Mr. Younger took the February 1978 examination as a third-time examinee. He failed to pass.
Mr. Younger petitioned the Colorado Supreme Court pursuant to Rule 214 to take the bar examination a fourth time in July 1978. This petition was denied, as were subsequent petitions to take the February and July 1979 examinations.
After denial of Younger's last petition to take the Colorado bar examination, this action was brought for a determination that Rule 214 is unconstitutional, for an injunction prohibiting defendants' continuing the enforcement of the Rule, and for damages. Defendants moved to dismiss for lack of jurisdiction and for failure to state a claim. After oral arguments the district court denied the motion.
A hearing was then held on plaintiff's motion for a preliminary injunction. The two main witnesses at this hearing were Mr. Younger and the late Justice James K. Groves, Chairman of the Admissions Committee of the Colorado Supreme Court. An affidavit was submitted by the other member of the Admissions Committee, Justice William H. Erickson.
Justice Groves indicated that Colorado follows current educational standards in its bar examination policy. At least 31 other states limit the number of times an applicant may take a bar examination in the same or similar manner as does Colorado. Only ten states have no limit on reexamination. III R. 17.
Justice Groves also testified that petitions requesting permission to take the Colorado bar examination a third time are always granted. III R. 10. However, petitions requesting permission to take the examination a fourth time are not routinely granted. 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. III R. 12. 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. III R. 11.
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 has shown weakness. The Colorado Supreme Court adopts the law professor's recommendation and the individual is allowed to take the examination a fourth time if the prescribed courses are taken and passed. III R. 11-12. Since 1975 this procedure has been applied uniformly to all applicants attempting to take the bar examination more than three times, with the exception of two individuals who were allowed to use private tutors. III R. 14, 15.
Persons who have been denied an opportunity to take the examination a fourth time are given an opportunity to meet personally with Justice Groves, who explains the Colorado Supreme Court procedure on taking the examination more than three times. III R. 13, 30. Although Mr. Younger did request a meeting with Justice Groves after denial of his petition to take the February 1979 examination, the meeting was cancelled due to a time conflict and never rescheduled. III R. 14.
Evidence was also introduced concerning the basis for Rule 214. The affidavit of Justice Erickson states that the requirement for obtaining special permission and for showing good cause before taking the bar examination a fourth time is based on the Colorado Supreme Court's conclusion that repeated failure of the examination has proven an individual is not competent to practice law and that few pass on the fourth attempt, even with additional legal training. I R. 45. Justice Groves stated that legal competency is generally discovered in the first three examinations and that failure to pass the first three times is "a pretty good sign that the person is not competent to enter the profession or to be admitted to the bar." III R. 16.
Statistics regarding the pass rate for the Colorado bar examination were also introduced. Of the ten persons who took the Colorado bar examination for a fourth time between February 1975 and February 1979, only 20% passed. This compares with a pass rate of 46% for third time examinees, 61% for second time examinees, and an overall pass rate of 77%. IV R. Ex. D and E.
Mr. Younger testified that he is still employed as a law clerk with the Legal Aid Society, never being promoted to an attorney's position because of his failure to pass the Colorado bar examination. III R. 36. However, in 1978 the Denver Legal Aid Society adopted a policy requiring law clerks to pass the bar examination or face termination. III R. 35. Thus plaintiff's job is at risk. Although the record is somewhat unclear, Mr. Younger apparently is to be allowed to continue working as a law clerk until the final resolution of this litigation. III R. 46, 49.
The parties subsequently stipulated that the evidence submitted at the hearing on plaintiff's motion for a preliminary injunction, which we have summarized above, would constitute all the evidence in the case. The district court decided the merits of plaintiff's claim on this record.
Defendants first assert that this action merely seeks review of the allegedly unlawful denial of a particular applicant's attempt to become a member of the Colorado bar and hence the district court lacked jurisdiction to hear the matter, relying on our opinion in Doe v. Pringle, 550 F.2d 596 (10th Cir.), cert. denied, 431 U.S. 916, 97 S.Ct. 2179, 53 L.Ed.2d 227, inter alia.
We agree that the Supreme Court has placed limits on the jurisdiction of federal courts to review state supreme court actions involving bar...
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