Date: 06-13-2008

Case Style: Frank J. Lawrence, Jr. v. Janet K. Welch, et al.

Case Number: 07-1026

Judge: Bertelsman

Court: United States Court of Appeals for the Sixth Circuit on appeal from the Western District of Michigan, Ingham County

Plaintiff's Attorney: Dennis B. Dubuc, ESSEX PARK LAW OFFICE, South Lyon, Michigan, for Appellant.

Defendant's Attorney: Richard C. Kraus, FOSTER, SWIFT, COLLINS & SMITH, Lansing, Michigan, Denise C. Barton, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Lansing, Michigan, for Appellees.

Description: Plaintiff-Appellant Frank J. Lawrence, Jr. (Lawrence) appeals from the district courts judgment dismissing his claims filed pursuant to 42 U.S.C. 1983 against officials of the State Bar of Michigan in connection with their denial of his application for a license to practice law. For the following reasons, we AFFIRM.

I. BACKGROUND

Frank J. Lawrence, Jr. graduated from an accredited Michigan law school and passed the Michigan bar exam in 2001. He first applied for a license to practice law in Michigan the same year. For reasons not relevant here, that application was ultimately withdrawn.

Between 2001 and 2004, a contentious relationship developed between Lawrence, the State Bar of Michigan (SBM), and the Michigan Board of Law Examiners (BLE). In 2003, Lawrence filed a federal lawsuit against the BLE, the SBM, certain of its officials and employees, and justices of the Michigan Supreme Court. See Lawrence v. Chabot, 182 Fed. Appx. 442 (6th Cir. 2006). Lawrence sought declarations that certain rules of the state bar were unconstitutional, and he alleged, among other things, that the state bar had violated his First and Fourteenth Amendment rights in processing his 2001 application for admission prior to its withdrawal. The district court dismissed Lawrences claims on various grounds, and this court affirmed. Id. In 2003, Lawrence also began operating a registered website called StateBarWatch on which he actively criticized the SBM and BLE for alleged dishonesty within the Michigan attorney licensing system. Joint Appendix (J.A.) at 17 (Compl. at 21).

On August 18, 2004, Lawrence reapplied for admission to the Michigan bar. On August 15, 2005, Lawrence was interviewed by three members of a SBM District Character and Fitness Committee: David H. Baum (Baum), Randy A. Musbach (Musbach), and Sonal Hope Mithani (Mithani). During this interview, Lawrence stated that he had little respect for the Michigan state court system, and he expressed the view that the federal courts are the guardians of the constitution and that the Michigan state court system fails adequately to protect individuals constitutional rights. J.A. at 19 (Compl. 24).

Following this interview, the District Committee forwarded to the SBM a Report and Recommendation stating: The Committee does not believe that the applicant, Frank J. Lawrence, Jr., has shown by clear and convincing evidence that he currently possesses the requisite good character and fitness to be recommended to the practice of law in this state. J.A. 278. With respect to the above opinions expressed by Lawrence during his interview, the report stated: We are concerned about providing a law license to someone who, even before he has handled his first case as a member of the bar, has effectively written off such a huge component of the justice system. J.A. 280.

Following the issuance of this Report and Recommendation, Lawrence made several communications to the employers of the members of the District Committee. He telephoned the University of Michigan Law School, where Baum was the Assistant Dean of Student Affairs.

Lawrence told Baums assistant that he wanted to address the student bar association to let them know how poorly he thought he had been treated. Lawrence also sent a letter to a board member of the legal services organization for which Mithani was a director. In the letter, Lawrence stated how poorly he had been treated and how Mithani had manipulated Lawrences stated views about the state court system.

The District Committee recommendation was sent directly to the BLE, which voted to accept the recommendation. Lawrence then requested a hearing.

A hearing was held before the BLE on April 20, 2006. Lawrence was questioned about his communications with Baums and Mithanis employers, but he denied that they were inappropriate. J.A. 37-57. On June 14, 2006, the BLE issued a written opinion denying Lawrences application for admission to practice law. Id. Lawrence did not seek review of this decision in the Michigan Supreme Court.

On September 6, 2006, Lawrence filed a complaint in the United States District Court for the Western District of Michigan pursuant to 42 U.S.C. 1983, naming as defendants John T. Berry, executive director of the SBM, in his official capacity; Louis A. Smith, President of the BLE, in his official capacity; and Baum, Musbach, and Mithani, all in their individual capacities. Lawrence alleged that the BLEs denial of his bar application violated his First and Fourteenth Amendment rights. He sought declaratory and injunctive relief requiring defendants to issue him a license to practice law. Second, and in the alternative, Lawrence sought prospective relief to prohibit defendants from using his protected First Amendment activities as the basis for denying his future applications for a Michigan law license. Finally, the third count sought damages from Baum, Musbach, and Mithani for their alleged retaliation against Lawrence for the exercise of his First and Fourteenth Amendment rights.

Lawrence also filed a motion for a temporary restraining order and preliminary injunction requesting the same relief sought in the first two counts of the complaint.

Defendants filed motions to dismiss. In an opinion dated December 14, 2006, the district court granted those motions and denied Lawrences motions for preliminary injunctive relief. J.A. 63. The district court held that Lawrences attack upon the BLE decision denying his bar application was squarely barred by the Rooker-Feldman doctrine. Alternatively, the court held that Lawrences challenge to the constitutionality of the bar admission process had been rejected by this court in Lawrences prior appeal.

As to Lawrences second claim, the district court held that a decision granting prospective relief would necessarily imply that the hearing panels decision was improper and forbidden by the constitution and thus was equally barred by Feldman. J.A. 67-68. Further, the court held that, due to the discretion involved in such future decisions, an injunction could not be meaningfully crafted or enforced. J.A. 68. Third, because Lawrence had not yet filed another application for admission, the district court held that the matter was speculative and not ripe for review. Id.

Finally, the district court held that Lawrences claims for damages against the individual District Committee members were barred because those defendants were entitled to absolute quasijudicial immunity or, alternatively, qualified immunity. Id.

Lawrence timely appealed.

II. ANALYSIS

A. The Rooker-Feldman Doctrine: Counts I and II

This court reviews de novo the district courts ruling that the Rooker-Feldman doctrine precluded subject matter jurisdiction. McCormick v. Braverman, 451 F.3d 382, 389 (6th Cir. 2006) (citation omitted), cert. denied, 128 S. Ct. 41 (2007).

The Rooker-Feldman doctrine is based on two United States Supreme Court decisions interpreting 28 U.S.C. 1257(a). See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). Section 1257(a) states that a final judgment of the highest court of a state may be reviewed by the United States Supreme Court by writ of certiorari. The Rooker-Feldman doctrine is based on the negative inference that, if appellate court review of such state judgments is vested in the Supreme Court, then it follows that such review may not be had in the lower federal courts. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84 (2005).

In Exxon, the Supreme Court recently summarized the Rooker-Feldman doctrine: The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. Id. at 284.

In the wake of Exxon, this circuit has distinguished between plaintiffs who bring an impermissible attack on a state court judgment situations in which Rooker-Feldman applies and plaintiffs who assert independent claims before the district court situations in which Rooker- Feldman does not apply. Pittman v. Cuyahoga County Dept of Children and Family Serv., 241 Fed. Appx. 285, 287 (6th Cir. 2007) (citing McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir. 2006)).

In McCormick, we explained that the pertinent inquiry after Exxon is whether the source of the injury upon which plaintiff bases his federal claim is the state court judgment:

The inquiry then is the source of the injury the plaintiff alleges in the federal complaint. If the source of the injury is the state court decision, then the Rooker- Feldman doctrine would prevent the district court from asserting jurisdiction. If there is some other source of injury, such as a third partys actions, then the plaintiff asserts an independent claim.

. . . .

To the extent that Defendants argue that these claims, even though they do not assert injury from the state court judgments, are inextricably intertwined with those judgments so as to fall within the reach of Rooker-Feldman, that argument must fail. We first note that it was this exact language that was the source of the pre- Exxon Mobil woes as to the application of Rooker-Feldman. In addition, the Supreme Court used the phrase inextricably intertwined in Feldman to describe a claim where the plaintiff asserted an injury from the state court judgment itself . . . .

In Exxon, the Supreme Court implicitly repudiated the circuits post-Feldman use of the phrase inextricably intertwined to extend Rooker-Feldman to situations [where] the source of the injury was not the state court judgment. In short, the phrase inextricably intertwined only describes the conclusion that a claim asserts an injury whose source is the state court judgment, a claim that is thus barred by Rooker-Feldman. McCormick, 451 F.3d at 394-95 (emphasis added).

Applying this distinction, we concluded in McCormick that plaintiffs claims that certain defendants committed fraud and misrepresentation in the course of state probate proceedings did not allege an injury caused by the state court judgment and thus were not barred by Rooker-Feldman. Id. at 392. In contrast, however, plaintiffs claim that the probate courts order of receivership violated her constitutional rights because it effected an unlawful seizure was barred because the count alleges that the state court order itself was illegal and harmed Plaintiff. Id. at 395. We have applied this source of the injury analysis in other recent cases where Rooker- Feldman was raised as a bar to the district courts jurisdiction. See Pittman, 241 Fed. Appx. at 288 (claims of improper conduct by employees of family services agency not barred by Rooker-Feldman because their actions were independent from juvenile courts custody decision; plaintiff did not seek reversal of custody order); Loriz v. Connaughton, 233 Fed. Appx. 469, 474-75 (6th Cir. 2007) (landowners claims challenging zoning decisions as unconstitutional barred by Rooker-Feldman; district court could not grant requested relief without reviewing decisions of state agency and courts and determining that they were improper); Brown v. First Nationwide Mortgage Co., 206 Fed. Appx. 436, 439-40 (6th Cir. 2006) (mortgagors claims against individuals involved in mortgage foreclosure proceedings not barred; source of injury was defendants conduct independent from foreclosure decree itself).

1. Count I

It is clear that Lawrences claim that defendants violated his First and Fourteenth Amendment rights by denying his most recent application for admission to practice law in Michigan is a direct attack on a state court judgment and thus barred by Rooker-Feldman. Lawrence explicitly seeks a declaration that defendants decision impermissibly impinges upon protected federal rights and that Plaintiff is entitled to a license to practice law. J.A. 28 (Compl. 56). As the Supreme Court held in Feldman, the federal courts are without jurisdiction to entertain such a claim. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 487-88 (1983).

Likewise, this circuit has held that similar federal challenges to the denial of bar applications are barred by Rooker-Feldman. See Raymond v. Moyer, 501 F.3d 548, 554 (6th Cir. 2007); Dubuc v. Michigan Bd. of Law Examiners, 342 F.3d 610, 618 (6th Cir. 2003).

2. Count II

Lawrences second claim in which he seeks prospective injunctive relief barring defendants from denying his future bar applications on allegedly unlawful First Amendment grounds presents a more difficult question. The first issue raised with respect to this claim is the question of ripeness.1

In Lawrences first appeal to this court, Lawrence v. Chabot, 182 Fed. Appx. 442 (6th Cir. 2006), the court held that Lawrences First Amendment as-applied challenge was not ripe because he had not been denied admission to the bar. Id. at 455. No injury thus had occurred or was certainly impending. Id.

Now, Lawrence has been denied admission to the bar on grounds which, he asserts, run afoul of the First Amendment. Lawrence has indicated a clear intent to reapply and, as the record reflects, has persisted in the same expressive activity that allegedly resulted in the first denial. Defendants, likewise, have clearly indicated that they consider such activity to render Lawrence of unfit character for admission.

It would, thus, seem that: (1) it is likely that Lawrence will again be denied admission if he engages in the same allegedly protected activity, and that he has a credible fear of enforcement; (2) the factual record is perhaps developed as sufficiently as it can be for purposes of a preenforcement challenge, and it is certainly developed now in a way that it was not at the time of the Lawrence v. Chabot decision; and (3) Lawrence is exposed to hardship in that the alleged violation of his First Amendment rights is causing him to be unable to practice in his chosen profession. See generally Norton v. Ashcroft, 298 F.3d 547, 554 (6th Cir. 2002).

No doubt there are contingencies that may mean that the anticipated harm will not come to pass. Given that the denial of the license to practice law is an ad hoc decision by a body (the BLE) whose composition no doubt changes over time, it could be that a future application will be granted notwithstanding Lawrences expressive activity.

Nonetheless, weighing these considerations and applying the relaxed standard of ripeness under First Amendment jurisprudence, Lawrences second claim for relief is ripe for consideration.

Unfortunately for Lawrence, while ripe, this second claim is also barred by Rooker-Feldman. At first blush, this may seem not to be the case given that no future application and thus no denial has occurred.

However, examined for its substance rather than its form, Lawrences second claim for relief is premised on the same alleged injury as his first cause of action, i.e., defendants denial of his bar application on the basis of his allegedly protected First Amendment activities. Lawrences complaint makes this explicit: Therefore, Plaintiff relies upon the allegations in this Complaint relating to how Plaintiffs bar application was processed, to support this Count for prospective relief. J.A. 29 (Compl. 58).

In other words, the district court could not have concluded that Lawrence was entitled to the prospective relief he seeks that is, an order enjoining defendants from doing what they did before without first finding that defendants previous decision was unconstitutional. Put another way, while the redress Lawrence seeks in his second cause of action is forward-looking, the claim is nonetheless premised on the same past injury: the allegedly unlawful reasoning used to deny him bar admission in 2006.

In Loriz v. Connaughton, 233 Fed. Appx. 469 (6th Cir. 2007), cert. denied, 128 S. Ct. 1241 (2008), we affirmed the district courts ruling that the plaintiffs claims for damages as well as declaratory and prospective injunctive relief were barred by Rooker-Feldman. The plaintiffs there owned a farm in Ohio, and the owners of an adjacent lot applied for a zoning variance in order to operate a commercial bird hunting operation, including a shooting range. Id. at 470. After that application was approved by the Ohio Department of Natural Resources Division of Wildlife and, ultimately, the Butler County Board of Zoning Appeals, the plaintiffs appealed to the Butler County Court of Common Pleas. That court remanded the matter for further hearings and findings after which the zoning board and Court of Common Pleas again approved the conditional use permit for operation of the shooting range. Id. at 471.

After an unsuccessful appeal to the Ohio Court of Appeals, the plaintiffs filed suit in federal court against various state officials and others alleging, among other things, that the approval and operation of the shooting range constituted a taking of their property in violation of the Fifth Amendment. The district court dismissed the action, in part, due to lack of jurisdiction based on Rooker-Feldman, finding that the action essentially sought federal district court review over the decisions of the Ohio courts upholding the zoning permits. Id. at 474.

On appeal, this court affirmed, not only as to plaintiffs claim for damages, but also as to their request for a permanent injunction barring the zoning officials from permitting such shooting range operations in the future:

Clearly, all of the Lorizes claims were inextricably intertwined with the state court decisions. In order for the district court to grant the requested declaratory or injunctive relief, or to award damages, the district court would be forced to review the decisions of the Ohio Division of Wildlife, the BZA, the Ohio Court of Common Pleas, and the Ohio appellate court. Moreover, the relief the Lorizes seek a declaration that the state courts reached an improper result based on a faulty application of the law is not a general challenge to the constitutionality of the state law, but rather a specific grievance over specific decisions. These claims are exactly the type the Rooker-Feldman doctrine intended to bar in the lower federal courts. Id. at 475 (emphasis added).

Other circuits have applied similar reasoning to conclude that claims seeking injunctive relief are barred by Rooker-Feldman if they necessarily require the federal court to determine that a state court judgment was erroneously entered. See Mann v. Boatright, 477 F.3d 1140, 1147 (10th Cir. 2007) (holding that plaintiffs prayer for permanent enjoinment of allegedly unconstitutional probate order barred by Rooker-Feldman), cert. denied, 128 S. Ct. 897 (2008); Mickens v. Tenth Judicial Circuit, 181 Fed. Appx. 865, 874-75 (11th Cir.) (noting that the Rooker-Feldman doctrine can bar injunctive relief as well as other forms of relief and holding that district court lacked jurisdiction over plaintiffs request for preliminary injunction to enjoin mortgage foreclosure sale of their property), cert. denied, 127 S. Ct. 834 (2006).

Finally, we note that Lawrences second cause of action is not outside the scope of Rooker- Feldman by virtue of being a general challenge to the constitutionality of a state law or rule. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 483-86 (1983). Instead, Lawrences second claim challenges only defendants application of their admission criteria to him. J.A. 29-30 (Compl. 61). For this reason, Lawrences claim is distinguishable from the general challenges to the constitutionality of state court rules in Dubuc v. Michigan Bd. of Law Examiners, 342 F.3d 610 (6th Cir. 2003), and Fieger v. Ferry, 471 F.3d 637 (6th Cir. 2006).

Thus, because the prospective relief sought by Lawrence can be predicted only on a determination that the prior decision denying him bar admission was improper, his second claim is likewise barred by the Rooker-Feldman doctrine.

B. Count III

In Count III of his complaint, Lawrence seeks damages from individual defendants Baum, Musbach, and Mithani for their alleged retaliation against him by issuing an unfavorable character and fitness recommendation based on his expressed views of the Michigan court system. The district court dismissed this claim for failure to state a cause of action pursuant to Fed. R. Civ. P. 12(b)(6).

We review de novo the district courts dismissal for failure to state a claim under Rule 12(b)(6). In re Ferro Corp. Derivative Litig., 511 F.3d 611, 617 (6th Cir. 2008) (citation omitted).

We conclude that the district court properly found that these three defendants, as members of the State Bar of Michigans Character and Fitness Committee and thus agents of the Board of Law Examiners and the Michigan Supreme Court are entitled to absolute immunity for their actions in investigating Lawrences character and fitness to practice law and in making recommendations about the same. See Thomas v. Michigan State Bd. of Law Examiners, No. 94- 1346, 1994 WL 659148, at *2 (6th Cir. Nov. 22, 1994) (individual members of Michigan BLE entitled to absolute judicial immunity from civil rights action for damages arising out of denial of plaintiffs admission to state bar); Mayfield v. Francks, No. 92-1012, 1992 WL 73151, at *1 (6th Cir. April 10, 1992) (individuals who conducted character and fitness investigation as part of plaintiffs application to practice law in Michigan are absolutely immune from claim for monetary damages); Sparks v. Character and Fitness Comm. of Ky., 859 F.2d 428, 434 (6th Cir. 1988) (actions taken by members of Kentucky Committee on Character and Fitness in making unfavorable recommendation about plaintiffs fitness to practice law are quasi-judicial, entitling defendants to absolute immunity); Otrompke v. Chairman of the Comm. on Character and Fitness for the First Judicial Dist. of Illinois, No. 03 C 7198, 2005 WL 3050618, at *2 (N.D. Ill. Nov. 7, 2005) (dismissing plaintiffs claim against members of character and fitness committee of Illinois bar alleging violation of procedural due process resulting in their unfavorable recommendation as to his bar application because defendants are entitled to quasi-judicial absolute immunity); Julien v. Comm. of Bar Examiners for the Practice of Law, 923 F. Supp. 707, 714-15 (D.V.I. 1996) (similar).

The reasoning of the above cases makes clear that, in conducting the character and fitness examination which is integral to the process of determining whether an applicant is fit to practice law, these individual defendants, acting under the authority of the Michigan Supreme Court, were performing a judicial or quasi-judicial function for which they are entitled to absolute immunity. See Sparks, 859 F.2d at 433-34.

For this reason, our dicta in Dubuc v. Michigan Bd. of Law Examiners, 342 F.3d 610, 619 n. 4 (6th Cir. 2003), that individual members of the Michigan BLE were not entitled to judicial immunity is distinguishable. There, immunity was denied as to defendants enforcement of allegedly unconstitutional bar admissions rules regarding a waiting period for reapplication. This ruling was premised on the Supreme Courts holding that enforcement of bar rules is not a judicial function. See Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 734-37 (1980). That holding, however, does not alter the conclusion that determining a particular individuals qualifications and fitness for admission to practice law is an inherently judicial act. See Sparks, 859 F.2d at 434.

* * *

http://www.ca6.uscourts.gov/opinions.pdf/08a0207p-06.pdf

Outcome: For these reasons, we hold that the district court correctly dismissed Lawrences claims. We AFFIRM.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None