Opinion
No. 1:17-cv-289
2019-09-16
Frank J. LAWRENCE, Jr., Plaintiff, v. Eric PELTON, Defendant.
Frank J. Lawrence, Jr., Bloomfield Hills, MI, pro se. Heather S. Meingast, MI Dept. Attorney General, Scott Allen Mertens, Michigan Department of Attorney General Civil Litigation, Employment & Elections, Lansing, MI, for Defendant.
Frank J. Lawrence, Jr., Bloomfield Hills, MI, pro se.
Heather S. Meingast, MI Dept. Attorney General, Scott Allen Mertens, Michigan Department of Attorney General Civil Litigation, Employment & Elections, Lansing, MI, for Defendant.
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
Paul L. Maloney, United States District Judge
This lawsuit is filed by Plaintiff Frank Lawrence against members of Michigan's Board of Legal Examiners (BLE). In this lawsuit, Lawrence challenges an asserted BLE rule that bar exam scores are valid for only three years. Defendant Eric Pelton, sued in his individual and official capacities, filed a motion to dismiss. (ECF No. 11.) The Court will dismiss Lawrence's procedural due process claim, but not his substantive due process claim.
I.
Under the notice pleading requirements, a complaint must contain a short and plain statement of the claim showing how the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2) ; see Thompson v. Bank of America, N.A. , 773 F.3d 741, 750 (6th Cir. 2014). The complaint need not contain detailed factual allegations, but it must include more than labels, conclusions, and formulaic recitations of the elements of a cause of action. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A defendant bringing a motion to dismiss for failure to state a claim under Rule 12(b)(6) tests whether a cognizable claim has been pled in the complaint. Scheid v. Fanny Farmer Candy Shops, Inc. , 859 F.2d 434, 436 (6th Cir. 1988).
To survive a motion to dismiss, a plaintiff must allege facts sufficient to state a claim for relief that is "plausible on its face" and, when accepted as true, are sufficient to "raise a right to relief above the speculative level." Mills v. Barnard , 869 F.3d 473, 479 (6th Cir. 2017) (citation omitted). "The complaint must ‘contain either direct or inferential allegations respecting all material elements necessary for recovery under a viable legal theory.’ " Kreipke v. Wayne State Univ. , 807 F.3d 768, 774 (6th Cir. 2015) (citation omitted). "A claim is plausible on its face if the ‘plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ " Ctr. for Bio-Ethical Reform, Inc. v. Napolitano , 648 F.3d 365, 369 (6th Cir. 2011) (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citations omitted). When considering a motion to dismiss, a court must accept as true all factual allegations, but need not accept any legal conclusions. Ctr. for Bio-Ethical Reform, 648 F.3d at 369.
II.
Lawrence complains that the BLE has an agenda to discourage competition within the legal market by making it more difficult to obtain a license to practice law in Michigan. Lawrence raises a general challenge to BLE's rule that passing scores on the Michigan bar exam are valid for only three years. Lawrence notes that the Rules for the Board of Law Examiners do not include any time limitation for the validity of passing bar exam scores. (ECF No. 1-2 Rules for the BLE.) In contrast, the Rules indicate that an applicant's character and fitness clearance is valid for only three years. Michigan Rule for BLE 4(C). Lawrence asserts the BLE notified him that he must retake and pass Michigan's bar exam in order to be approved for a license to practice law. (ECF No. 1 Compl. ¶ 13 PageID.5.) Lawrence reasons that application of the three-year rule interferes with his protected interest in a passing bar exam score. (Compl. ¶ 29 PageID.9 and ¶ 37 PageID.11.) Lawrence asserts that the policy is arbitrary because the Michigan Supreme Court has never approved the rule. Lawrence concludes that enforcement of the rule amounts to a violation of due process rights protected by the Fourteenth Amendment.
The relevant statute, Michigan Compiled Laws § 600.925, provides in part "The board [of law examiners] may adopt suitable regulations, subject to the approval by the supreme court, concerning the performance of its functions and duties."
Lawrence seeks declaratory and injunctive relief. His prayer for relief is found in the last paragraph of the complaint.
WHEREFORE, Plaintiff prays that this Court issue a declaratory judgment that Defendant PELTON has engaged in an ongoing violation of federal law and that his enforcement of a Rule (what he refers to as a "policy") that extinguishes passing Bar Exam scores after three years, for reasons set forth above, equates to a violation of due process of law. Plaintiff further prays that this Court enjoin Defendant PELTON from enforcing this three-year expiration "policy."
(Compl. PageID.12.) Lawrence does not seek damages.
In his brief supporting this motion, Pelton does not deny the existence of the rule, and implicitly acknowledges its existence. III.
Defendant states that Plaintiff was "granted a waiver of this policy" for his third bar application, but his request for the waiver for his fourth bar application was denied. (ECF No. 12 Def. Br. at 2 PageID.90.)
Pelton offers a host of reasons why the Court should dismiss the lawsuit in its entirety, as well as some of the specific claims.
A. Rooker - Feldman
First, Pelton insists the Rooker - Feldman doctrine deprives this Court of jurisdiction over the lawsuit because Lawrence is functionally challenging the denial of his fourth application to practice law.
The Rooker - Feldman doctrine evolved from two United States Supreme Court decisions interpreting 28 U.S.C. § 1257(a). See Dist. of Columbia Court of Appeals v. Feldman , 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) ; Rooker v. Fid. Trust Co. , 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). The doctrine bars "state-court losers from 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." Exxon Mobil Corp. v. Saudi Basic Indus. Corp. , 544 U.S. 280, 283–84, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Following Exxon , the Sixth Circuit explained the "source of the injury" requirement for application of the Rooker - Feldman doctrine; where the source of the injury is the state court's judgment, then the doctrine applies and prevents the district court from asserting jurisdiction. McCormick v. Braverman , 451 F.3d 382, 394 (6th Cir. 2006) ; see Berry v. Schmitt , 688 F.3d 290, 299 (6th Cir. 2012) ; Shafizadeh v. Bowles , 476 F. App'x 71, 72 (6th Cir. 2012) (explaining that Rooker - Feldman is a "narrow" doctrine that "only forbids challenges to state court judgments .") (emphasis in original).
To determine the source of the injury, and thus whether the doctrine applies, federal courts consider the relief sought by the plaintiff. Berry , 688 F.3d at 299. Generally, where a plaintiff complains about the outcome of a prior proceeding in the state courts, and the relief sought amounts to an undoing of that outcome, the federal court will lack jurisdiction under the Rooker - Feldman doctrine. See Hall v. Callahan , 727 F.3d 450, 454–55 (6th Cir. 2013).
The doctrine does not apply when the federal lawsuit is a general challenge to the constitutionality of a state court rule or policy. Shafizadeh , 476 F. App'x at 72 ; see Hood v. Keller , 341 F.3d 593, 597 (6th Cir. 2003) (holding that the doctrine does not bar federal jurisdiction "where the plaintiff's claim is merely ‘a general challenge to the constitutionality of the state law applies in the state action,’ rather than a challenge to the law's application in a particular case.") (citation omitted). Typically, when a plaintiff requests prospective relief, Rooker - Feldman will not bar the action. See, e.g., Berry , 688 F.3d at 300 ; Fieger v. Ferry , 471 F.3d 637, 644–45 (6th Cir. 2006).
Pelton is not entitled to the dismissal of this lawsuit under the Rooker - Feldman doctrine. Rooker - Feldman would prevent Lawrence from challenging the denial of his fourth bar application, but he has not asked for that retroactive relief. If Lawrence prevails here, he has not asked this Court to order Pelton to grant him a license to practice law. Lawrence asks only for prospective relief. The claim Lawrence brings and the declaration and injunction he seeks are not are not barred by Rooker - Feldman . B. Eleventh Amendment
Second, Pelton argues the Eleventh Amendment prohibits the prospective relief Lawrence seeks.
The State itself is the actual defendant when a state employee is sued in his or her official capacity. Will v. Michigan Dep't of State Police , 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Unless the State has waived sovereign immunity, the Eleventh Amendment bars lawsuits for damages against the State, its agencies and its officials sued in their official capacities. Cady v. Arenac Cty. , 574 F.3d 334, 342 (6th Cir. 2009). In Michigan, state law characterizes the Michigan State Bar as a state agency. Kish v. Michigan State Bd. of Law Examiners , 999 F. Supp. 958, 962 (E.D. Mich. 1998).
Lawrence sued Pelton in both his official and his individual capacities. This Eleventh Amendment immunity argument would apply only the Lawrence's claims against Pelton in his official capacity. See Hafer v. Melo , 502 U.S. 21, 30–31, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991).
The Supreme Court has recognized three exceptions to Eleventh Amendment immunity, two of which do not apply here. See Boler v. Earley , 865 F.3d 391, 410 (6th Cir. 2017). Michigan has not consented to be sued under § 1983 and Congress did not expressly abrogate immunity for § 1983 suits. The third exception is the doctrine first outlined in Ex parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Under the third exception, plaintiffs may "bring claims for prospective relief against state official sued in their official capacity to prevent future federal constitutional or statutory violations, ‘regardless of whether compliance might have an ancillary effect on the state treasury.’ " Id. at 412 (quoting S & M Brands, Inc. v. Cooper , 527 F.3d 500, 507 (6th Cir. 2008) ). To determine if the action falls under the Ex parte Young exception, the Court must "conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’ " Verizon Maryland, Inc. v. Pub. Serv. Comm'n of Maryland , 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) (quoting Justice O'Connor's concurring opinion in Idaho v. Coeur d'Alene Tribe of Idaho , 521 U.S. 261, 269, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) ).
Pelton is not entitled to dismissal of any claims under the Eleventh Amendment. Lawrence seeks only prospective relief for what he alleges is an ongoing violation of federal law. In the past, the Sixth Circuit has rejected Eleventh Amendment immunity defenses raised by members of the BLE when the plaintiff sought only an injunction against an ongoing violation of federal law. See Dubuc v. Michigan Bd. of Law Examiners , 342 F.3d 610, 616 (6th Cir. 2003) (citing Verizon Maryland , 535 U.S. at 645, 122 S.Ct. 1753 ). This Court has previously rejected a similar argument raised by different members of the Board of Law Examiners when Lawrence sought similar prospective relief. See Lawrence v. Chabot , No. 4:03-cv-20 (W.D. Mich. 2003). In both Dubuc and Chabot , the courts found that the relief sought was not the functional equivalent of the sort of relief barred by the Eleventh Amendment. The same is true in this action.
Magistrate Judge Scoville issued a report and recommendation on May 7, 2003, docket number 55 . Judge McKeague adopted the report and recommendation and denied the motion to dismiss on September 29, 2003, docket numbers 75 and 76.
C. Younger Abstention
Pelton argues this Court should apply the principles in Younger v. Harris , 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and abstain from resolving a matter of state law.
Under the abstention doctrine identified in Younger , federal courts abstain from when there is a parallel, pending criminal proceeding in state courts. Sprint Commc'ns, Inc. v. Jacobs , 571 U.S. 69, 134 S. Ct. 584, 588, 187 L.Ed.2d 505 (2013). The doctrine has been extended to include state criminal prosecutions, civil enforcement proceedings that are akin to criminal prosecutions, and civil proceedings involving certain orders that are uniquely in furtherance of the state courts' ability to perform their functions. Id. (quoting New Orleans Pub. Serv. Inc. v. Council of the City of New Orleans , 491 U.S. 350, 367–68, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) ); see Doe v. Univ. of Kentucky , 860 F.3d 365, 369 (6th Cir. 2017). Although Younger can apply to cases that do not involve criminal prosecutions, "such applications are narrow and exist only in a few circumstances." Doe , 860 F.3d at 369 (citing New Orleans Pub. Serv., Inc. , 491 U.S. at 368, 109 S.Ct. 2506 ). If the proceeding falls in one of the three categories, three requirements must be present for the federal court to abstain under Younger : (1) there must be on-going state judicial proceedings, (2) the proceedings must implicate an important state interest, and (3) there must be an adequate opportunity in the state proceedings to raise constitutional challenges. Id. (citations omitted); American Family Prepaid Legal Corp. v. Columbus Bar Ass'n , 498 F.3d 328, 333 (6th Cir. 2007).
Pelton has not established that Younger applies in this situation. The parallel state proceeding, an application to practice law, is not a criminal prosecution or civil enforcement proceedings akin to a criminal prosecution. On the assumption that the approval process for an application to practice law falls into the third category of state proceedings identified in Sprint Communications , Pelton has not demonstrated that any of Lawrence's state bar proceedings are ongoing. The Court infers that Lawrence's fourth application to practice law was denied. That he is eligible to take the exam and that his character and fitness clearance has not yet expired does not mean that there is an ongoing state proceeding.
D. Pullman Abstention
Pelton argues this Court should abstain from resolving Lawrence's challenge to the three-year rule under the Pullman doctrine. See R.R. Comm'n of Texas v. Pullman Co. , 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).
" Pullman abstention instructs courts to avoid exercising jurisdiction in cases involving an ambiguous state statute that may be interpreted by state courts so as to eliminate, or at least alter materially, the constitutional question raised in federal court." Fowler v. Benson , 924 F.3d 247, 255 (6th Cir. 2019). A threshold question for Pullman abstention is whether the state statute is ambiguous. "Where there is no ambiguity in the state statute, the federal court should not abstain but should proceed to decide the federal constitutional claim." Wisconsin v. Constantineau , 400 U.S. 433, 439, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) ; see City of Houston, Texas v. Hill , 482 U.S. 451, 469, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (As stated above, when a statute is not ambiguous, there is no need to abstain even if the state courts have never interpreted the statute."). The Supreme Court also provided some timing considerations for determining when Pullman abstention is appropriate.
Where there is an action pending in state court that will likely resolve the state-law questions underlying the federal claim, we have regularly ordered abstention. Similarly, when the state-law
questions have concerned matters peculiarly within the province of the local courts, we have inclined towards abstention. On the other hand, where the litigation has already been long delayed, or where it has seemed unlikely that resolution of the state-law question would significantly affect the federal claim, the Court has held that abstention should not be required.
Jones v. Coleman , 848 F.3d 744, 750 (6th Cir. 2017) (quoting Harris Cty. Comm'rs Court v. Moore , 420 U.S. 77, 83-84, 95 S.Ct. 870, 43 L.Ed.2d 32 (1975). Abstention is not required simply to afford the state courts the first opportunity to address the matter. Fowler , 924 F.3d at 255 (citing Zwickler v. Koota , 389 U.S. 241, 251, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967) ).
Pelton has not demonstrated that Pullman abstention is warranted. Pelton has not demonstrated that the underlying state statute is ambiguous. Indeed, Pelton does not argue that the state statute is ambiguous. See Jones , 848 F.3d at 753 (explaining that Pullman abstention requires "a thorough analysis of the state-law issue."). Rather, he argues that the question about what policies the BLE can adopt with or without the permission of the Michigan Supreme Court is a "novel issue of state law that has not been extensively litigated in the Michigan courts." (ECF No. 12 Def. Br. at 6 PageID.94.) Ambiguity, not novelty, provides the basis for Pullman abstention. See Ada-Cascade Watch Co., Inc. v. Cascade Resource Recovery, Inc. , 720 F.2d 897, 902 (6th Cir. 1983) ("Deferral to the state courts, however, is not appropriate merely because the state law issues are novel and critical to the case. The state issue must exhibit the qualities of uncertainty and ambiguity.") (internal citation omitted).
E. Quasi-Judicial Immunity
Pelton argues he is entitled to quasi-judicial immunity because the determination of a person's qualification for the admission to practice law is an inherently judicial act.
Judges are entitled to absolute judicial immunity from suits for damages arising from actions taken the judge's judicial capacity. Bush v. Rauch , 38 F.3d 842, 847 (6th Cir. 1994). The same immunity extends to non-judicial officers performing quasi-judicial functions. Id. (citations omitted). Members of the BLE, when "conducting the character and fitness examination which is integral to the process of determining whether an applicant is fit to practice law," are "performing a judicial or quasi-judicial function for which they are entitled to absolute immunity." Lawrence v. Welch , 531 F.3d 364, 372-73 (6th Cir. 2008) (citing Sparks v. Character and Fitness Comm. of Kentucky , 859 F.2d 428, 433 (6th Cir. 1988) ).
Absolute or judicial or quasi-judicial immunity applies to claims brought against a defendant in both his or her official and individual capacities. Dixon v. Clem , 492 F.3d 665, 674 (6th Cir. 2007) (citations omitted).
Lawrence contends that judicial immunity does not apply because members of the BLE do not act in a judicial capacity when enforcing the rules for admission to the State bar. See Dubuc , 342 F.3d at 619 n.4 (citing Supreme Court of Virginia v. Consumers Union of the United States, Inc. , 446 U.S. 719, 736, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980) ). The statement in the footnote in Dubuc is dicta—and therefore not binding—because, as the court noted "[t]he defendants, however, did not assert judicial immunity in their answers to the complaint or their briefs to this court." Id. ; see Welch , 531 F.3d at 373 (referring to the statement in Dubuc as "our dicta."). Welch then explained that while "enforcement of bar rules is not a judicial function," "determining a particular individual's qualifications and fitness for admission to practice law is an inherently judicial act." Welch , 531 F.3d at 373.
Pelton has not established that the claims and the relief sought in this lawsuit should be dismissed on the basis of judicial immunity. Pelton is simply incorrect that Lawrence is challenging the adverse determination made for his fourth application to practice law. Lawrence does not seek damages and his prayer for relief does not challenge the denial of his fourth application. Lawrence seeks a declaratory judgment that the enforcement of the three-year rule constitutes a violation of due process. Lawrence also seeks an injunction preventing Pelton from enforcing the three-year rule.
Section 1983 permits a plaintiff to seek prospective relief against judicial officers. In 1980, the Supreme Court declined to decide whether "judicial immunity would bar prospective relief" because, in that case, the court and the chief justice "were held liable in their enforcement capacities." Consumers Union , 446 U.S. at 736, 100 S.Ct. 1967. Four years later, the Court had the opportunity to consider the issue and held that "judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in her judicial capacity." Pulliam v. Allen , 466 U.S. 522, 541-42, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984). In 1996, Congress reacted to the holding in Pulliam by amending § 1983 through the Federal Courts Improvement Act. See Ward v. City of Norwalk , 640 F. App'x 462, 467 (6th Cir. 2016). As amended, § 1983 allows suits against persons acting under color of law "except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable." 28 U.S.C. § 1983. The parties have not addressed whether the specific declaratory relief Lawrence seeks is appropriately prospective or if it is retrospective, which implicates whether Lawrence can seek an injunction. See Justice Network Inc. v. Craighead Cty. , 931 F.3d 753, 762-64 (8th Cir. 2019).
F. Legislative Immunity
Pelton argues the claims against him must be dismissed because he is entitled to legislative immunity.
"The Michigan Supreme Court's promulgation of rules of practice and procedure is a legislative activity." Abick v. State of Michigan , 803 F.2d 874, 878 (6th Cir. 1986). Where a State Supreme Court has the authority to promulgate disciplinary rules for members of the State bar, the members of the court have legislative immunity from challenges to those rules. Consumers Union of the United States , 446 U.S. at 734, 100 S.Ct. 1967 ("Thus, the Virginia Court and its members are immune from suit when acting in their legislative capacity.").
Pelton has not established that he is entitled to legislative immunity. Lawrence's challenge is that the BLE failed to legislate before enforcing the rule. Lawrence contends Pelton is enforcing a rule that does not exist. Because the three-year rule does not appear in the Rule for the Board of Law Examiners, Lawrence asserts that Pelton and the BLE have simply made up the rule, which has not been approved by the Michigan Supreme Court. Lawrence alleges "[t]he BLE has no legal authority to invalidate passing Bar Exam scores after three years because it never secured permission from the Michigan Supreme Court to do so." (Compl. ¶ 14 PageID. 5.) He also alleges that "[n]either the Michigan Legislature nor the Michigan Supreme Court has ever enacted a statute or Rule that authorizes the BLE to invalidate a passing Bar Exam score after three years." (Id. ¶ 27 PageID.9.) Under these circumstances, the immunity discussed in Abick and Consumers Union does not apply.
G. Qualified Immunity
Pelton argues he is entitled to qualified immunity because Lawrence cannot identify any clearly established law that was violated.
Pelton is not entitled to qualified immunity. Personal defenses, like qualified immunity, are not available to defendants sued in their official capacities. Kentucky v. Graham , 473 U.S. 159, 166-67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) ; Hall v. Tollett , 128 F.3d 418, 430 (6th Cir. 1997). For claims brought against a defendant in his or her individual capacity, qualified immunity applies to claims for monetary damages and does not shield a defendant when the plaintiff seeks only injunctive or declaratory relief. J. Endres v. Northeast Ohio Med. Univ. , 938 F.3d 281, 302 (6th Cir. 2019) (quoting Kanuszewski v. Michigan Dep't of Health and Human Servs. , 927 F.3d 396, 417-18 (6th Cir. 2019) ); Top Flight Entm't, Ltd. v. Schuette , 729 F.3d 623, 635 n.2 (6th Cir. 2013) ; Faith Baptist Church v. Waterford Twp. , 522 F. App'x 322, 328 (6th Cir. 2013) (citations omitted).
H. Merits of the Due Process Claim
Pelton argues the three-year rule does not violate either substantive or procedural due process.
"[T]he Due Process Clause of the Fourteenth Amendment was intended to prevent government from abusing its power, or employing it an instrument of oppression." DeShaney v. Winnebago Cty. Dep't of Soc. Servs. , 489 U.S. 189, 195, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (internal quotation marks and edits omitted). The clause contains both a procedural and a substantive component. "Procedural due process is traditionally viewed as the requirement that the government provide a ‘fair procedure’ when depriving someone of life, liberty, or property; substantive due process ‘protects individual liberty against certain government actions regardless of the fairness of the procedures used to implement them.’ " EJS Props. LLC v. City of Toledo , 698 F.3d 845, 855 (6th Cir. 2012) (citation omitted). For both a procedural and a substantive due process claim, the plaintiff must first establish that he or she has a protected interest. See id.
a. Procedural Due Process
Pelton argues the procedural due process claim should be dismissed for two reasons. First, Lawrence does not have a protected property interest in the passing bar exam score. Second, Michigan provides a vehicle for challenging the deprivation of the alleged interest.
To state a procedural due process claim, a plaintiff must show he or she (1) had a life, liberty, or property interest protected by the Due Process Clause, (2) was deprived of the protected interest, and (3) Michigan did not provide adequate procedural rights prior to the deprivation of the property interest. EJS Props. , 698 F.3d at 855 (quoting Women's Med. Prof'l Corp. v. Baird , 438 F.3d 595, 611 (6th Cir. 2006) ).
Property interests typically arise under state law. EJS Props. , 698 F.3d at 855. This Court is unaware of any legal authority indicating that a passing bar exam score, obtained at some point in the past, constitutes a protected property interest. See Tolchin v. Supreme Court of the State of New Jersey , 111 F.3d 1099, 1115 n.2 (3d Cir. 1997) ("Because of the result that we reach in this case, we need not decide the related question of whether one who has passed a state bar exam, but who is for some reason ineligible to practice, has a property interest protected by the Due Process Clause.") Nevertheless, the Court will assume, for the sake of this motion only, that Lawrence has a property interest in the passing score on the bar exam he took in 2001. But see, Raymond v. O'Connor , No. 2:11-cv-819, 2012 WL 3283399, at *2-*3 (S.D. Ohio Aug. 10, 2012) (holding that where a state provides several avenues for becoming an attorney, an applicant does not have a protected property interest in any one of those avenues and referencing authority where individuals were completely excluded from a profession).
Pelton has established that Michigan provides adequate procedures for appealing adverse determinations concerning bar applications. Michigan Court Rule 7.304(A) permits individuals to file a complaint with the Michigan Supreme Court for superintending control over the Board of Law Examiners. See Kish , 999 F. Supp. at 963. And, the Michigan Supreme Court's decision would be subject to review by the United States Supreme Court by writ of certiorari. See 28 U.S.C. § 1257(a). Here, Lawrence and any other applicant whose application to practice law is denied by the BLE on the basis of the three-year rule has a method for appealing that adverse decision, he or she can file a complaint for superintending control with the Michigan Supreme Court. Accordingly, Lawrence has not pled a plausible claim for a violation of procedural due process.
b. Substantive Due Process
Pelton argues that Lawrence's interests do not fall within one of the narrow class of interests protected by the Due Process clause. Specifically, Pelton argues the rule is rational and Lawrence cannot show any action that shocks the conscience.
Substantive Due Process protects people from certain governmental deprivations " ‘regardless of the adequacy of the procedures employed.’ " Range v. Douglas , 763 F.3d 573, 588 (6th Cir. 2014). Substantive due process protects "a narrow class of interests, including those enumerated in the Constitution, those so rooted in the traditions of the people as to be ranked fundamental, and the interests in freedom from government actions that ‘shock the conscience.’ " Id. (citation omitted). Also included, substantive due process protects individuals from arbitrary actions of the government. See Cty. of Sacramento v. Lewis , 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). The "criteria to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a government officer that is at issue." Id. at 846, 118 S.Ct. 1708. Generally, "only the most egregious official conduct" will be found to be " ‘arbitrary in the constitutional sense.’ " Id. (citation omitted). The freedom from arbitrary governmental actions is merely "another formulation of the right to be free from conscience-shocking actions." Range , 763 F.3d at 588 (citations omitted). Cf. Pearson v. City of Grand Blanc , 961 F.2d 1211, 1217 (6th Cir. 1992) (identify contexts where the term "substantive due process" is used, identifying both shock the conscience and arbitrary and capricious actions as two of the contexts, and noting that the using the "shock the conscience" test outside claims for excessive force "is problematic") (citations omitted).
On the facts pled in the complaint, Pelton is not entitled to dismissal of Lawrence's substantive due process claim for failure to state a claim. Specifically, Pelton has not established that his enforcement of the three-year rule, based on the allegations in the complaint, is not arbitrary. At this point in the litigation, the Court must accept Lawrence's contention that the three-year rule is not a properly promulgated rule for the purpose of denying bar applications. For this motion, the Court does not accept Pelton's characterization of the dispute as a disagreement about "how under state law [the three-year rule] was implemented." (Def. Br. At 12 PageID.100.) Where government officials rely on non-existent or irrelevant rules to reach an adverse decision, the governmental action can be said to be arbitrary for the purpose of a due process claim. See, e.g., Horn v. City of Mackinac Island , 938 F. Supp. 2d 712, 720 (W.D. Mich. 2013) ("In this case, Horn has shown that the City precluded him from selling his goods in 2010, when he had a state-issued license to do so, by applying an ordinance that, on its face, had no application to peddling. Under these circumstances, the City's actions were arbitrary and capricious."). To be clear, the Court has not considered whether the three-year rule would be a good idea. The Court reaches a narrow conclusion: assuming the three-year rule has not been properly promulgated, the rule cannot be used to deny a bar application.
IV.
Lawrence alleges that the Bar of Law Examiners are enforcing a rule that a passing bar exam score is valid for only three years. Lawrence contends enforcing this rule violates procedural and substantive due process, reasoning that the rule has not been approved by the Michigan Supreme Court. Pelton has established that the complaint does not state a claim for procedural due process. The Michigan Rules of Court provide a mechanism for challenging the denial of a bar application, a complaint for superintending control filed with the Michigan Supreme Court, which functions as an adequate procedural check on the deprivation of the alleged right. Accordingly, Lawrence's procedural due process claim will be dismissed.
Pelton has not established that the substantive due process claim should be dismissed. The claim and the specific remedy Lawrence seeks do not fall under Rooker - Feldman , the Eleventh Amendment, the Younger or Pullman abstention doctrines, or the quasi-judicial, legislative or qualified immunity doctrines. Finally, on the facts alleged in the complaint, Lawrence has stated a plausible claim.
ORDER
For the reasons provided in the accompanying Opinion, Pelton's motion to dismiss (ECF No. 11) is GRANTED IN PART and DENIED IN PART. IT IS SO ORDERED.