Opinion
Case No. 1:04-CV-77.
June 17, 2004
JUDGMENT
In accordance with the Opinion filed this day,
IT IS HEREBY ORDERED that Defendant John Berry's Motion for Summary Judgment (Dkt. No. 52) and Supplemental Motion (Dkt. No. 64) are GRANTED and judgment is entered in favor of Defendants John Berry and Linda V. Parker and against Plaintiff as to all claims.
IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment (Dkt. No. 58) is DENIED AS MOOT.
OPINION
This matter is before the Court on Defendant John Berry's Motion for Judgment on the Pleadings or Motion for Summary Judgment and Supplemental Motion for Summary Judgment. Defendant Linda Parker has filed a Concurrence in which she adopts the arguments presented in Defendant's Motions as her own. Because the Court will consider matters outside the pleadings, it will treat both of Defendant's Motions as motions for summary judgment. See Fed.R.Civ.P. 12(c). For the reasons that follow, Defendant's Motions will be granted.I. Factual History
The following statement of facts is a representation of the factual record interpreted in a light most favorable to Plaintiff, who is the non-moving party in this matter. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
In February 1998, Plaintiff Dennis Dubuc, a graduate of an accredited law school who had passed the Michigan Bar examination, applied for admission to the Michigan Bar. In accordance with Michigan law, his application was first reviewed by the State Bar of Michigan, which recommended to the Michigan Board of Law Examiners that his application be denied because Plaintiff lacked good moral character. In particular, the Bar expressed concern about Plaintiff's behavior in almost 40 lawsuits over the past 25 years. In a hearing for one of these lawsuits, Plaintiff accused the presiding judge of conspiring against him and filed criminal charges against the judge. Plaintiff's actions in that case resulted in a finding by the Michigan Supreme Court that he had engaged in abusive and frivolous tactics to delay the proceedings, including "naming the trial judge as a witness; seeking to depose the judge; accusing the judge of criminal conduct and of conspiring with defense counsel; and threatening to file a complaint with the Judicial Tenure Commission against the judge."
Plaintiff challenged the Bar's finding in a de novo hearing before the Board. The Board upheld the Bar's denial of Plaintiff's application, finding his failure to accept responsibility for his actions prevented him from carrying his burden of proving he was fit to practice law. Plaintiff sought leave to appeal this decision to the Michigan Supreme Court and to the United States Supreme Court, both of which denied him leave to appeal. Plaintiff then submitted a renewed application to the Bar, and his application is currently pending.
II. Procedural History
On March 28, 2002, Plaintiff filed a Complaint against the Michigan Board of Law Examiners; the State Bar of Michigan; John Berry, Executive Director of the State Bar of Michigan; and George Googasian, Chairperson of the Michigan Board of Law Examiners in the Eastern District of Michigan. In his Complaint, Plaintiff challenged the facial validity of the statute governing admissions to the Bar as well as the manner in which his particular application would be processed. In particular, Plaintiff challenged the character and fitness standards required of all bar applicants and the waiting period imposed on unsuccessful applicants before they could re-apply for admission. On June 1, 2002, Defendants George Googasian and the Michigan Board of Law Examiners moved to dismiss the Complaint for improper venue or in the alternative to transfer the case to the Western District of Michigan. On June 5, 2002, the Eastern District of Michigan dismissed the case, finding all Defendants were entitled to immunity under the Eleventh Amendment. Because the court dismissed the action, it denied all pending motions as moot. Plaintiff then appealed to the Sixth Circuit Court of Appeals
On September 3, 2003, the Sixth Circuit issued its Opinion on Plaintiff's appeal. The court found the Michigan Board of Law Examiners and State Bar of Michigan were immune from suit and therefore affirmed the district court's dismissal of all claims against them. However, the court overturned the district court's dismissal of claims against Defendants Googasian and Berry, finding they were not entitled to immunity under the Eleventh Amendment, the Michigan Supreme Court Rules Concerning the State Bar of Michigan ("RCSBM"), or the Rooker-Feldman doctrine. With respect to the Rooker-Feldman doctrine, the Sixth Circuit said the following:
. . . a district court cannot reverse a state court's final decision to deny " a particular application for admission," but a district court may resolve a general challenge to the future enforcement of an allegedly unconstitutional bar admission rule.
In this lawsuit, Dubuc has explicitly not challenged the denial of his 1998 application. As Dubuc correctly recognizes, his "prior licensing decision is history" and "no outcome in this lawsuit could or would reverse any prior state court judgment." With this lawsuit, Dubuc launches a general attack on the constitutionality of the RCSBM's rule that an unsuccessful applicant must wait longer before reapplying if the applicant sought a de novo hearing from the Board regarding his first application. Dubuc also seeks injunctive and declaratory relief prohibiting defendants from using First Amendment activities as a basis for denying admission to the Bar. Because Dubuc does not seek to have the district court overturn the denial of his 1998 application, the Rooker-Feldman doctrine is inapplicable to this lawsuit. Dubuc v. Mich. Bd. of Law Exam'rs, 342 F.3d 610, 618 (6th Cir. 2003) (emphasis in original) (internal citations omitted).
Having reversed the district court's dismissal of the claims against Defendants Berry and Googasian, the court vacated the district court's dismissal of the pending motions, including Defendants' Motion for Change of Venue and remanded the case for further proceedings. On January 30, 2004, the Eastern District of Michigan granted Defendants' Motion for Change of Venue and transferred the case to this Court. On March 2, 2004, Defendant John Berry filed the instant Motion for Judgment on the Pleadings and Motion for Summary Judgment. On March 25, 2004, in accordance with a stipulation submitted by the parties, the Court entered an Order of Substitution substituting Linda V. Parker, the current chairperson of the Board of Law Examiners, for George Googasian. On March 26, 2004, Defendant Berry filed his Supplemental Motion for Summary Judgment. Defendant Parker filed a concurrence on June 7, 2004, in which she adopted the arguments made in Berry's Motions.
III. Standard of Review
Under Fed.R.Civ.P. 56(c), summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact. The party moving for summary judgment bears the initial burden of specifying the basis on which summary judgment should be granted and of identifying portions of the record which demonstrate the absence of a genuine issue of material fact. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Once this initial burden is met, the non-moving party has the burden of presenting specific facts, supported by the record, showing a genuine issue of material fact. Bill Call Ford, Inc. v. Ford Motor Co., 48 F.3d 201, 205 (6th Cir. 1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In other words, the non-moving party must show that the complaint contains "either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 405 (6th Cir. 1998) (quoting Sogevalor v. Penn. Cent. Corp., 771 F. Supp. 890, 893 (S.D. Ohio 1991)). If, after adequate time for discovery on material matters at issue, the non-movant fails to make a showing sufficient to establish the existence of a material disputed fact on which it will bear the burden of proof at trial, summary judgment is appropriate because "a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322-23. When considering a motion for summary judgment, the trial court is not required to blindly accept legal conclusions or unwarranted factual inferences. Lewis, 135 F.3d at 405. Furthermore, "the admonishment to liberally construe plaintiff's claim when evaluating a Rule 12(b)(6) dismissal does not relieve a plaintiff of his obligation to satisfy federal notice pleading requirements and allege more than bare assertions of legal conclusions." Id. (quoting Sogevalor, 771 F. Supp. at 893).
IV. Analysis
A. Rule 15, Section 1(18)
In his Complaint, Plaintiff alleges RCSBM 15 § 1, ¶¶ 17 18 violated the due process and equal protection clauses of the Fourteenth Amendment because they punished an applicant for exercising his First Amendment rights. Under ¶ 1(17):
If an application is withdrawn following an adverse recommendation by a district committee or the standing committee, or if following such an adverse recommendation the applicant fails to appear for further proceedings, the standing committee shall notify the applicant that the application for admission to the bar may not be renewed until the expiration of three years or such lesser period as the committee specifies.
Under ¶ 1(18), however,
An applicant who has been denied character and fitness certification for admission to the bar by the Board of Law Examiners may not reapply for character and fitness certification for a period of five years following the denial or such lesser period specified in the decision denying certification.
In other words, an applicant who chose not to appeal a negative recommendation from the Bar could reapply in three years, while an applicant who unsuccessfully appealed to the Board of Law Examiners had to wait five years before reapplying.
Since Plaintiff filed his Motion for Preliminary Injunction, the Michigan Supreme Court has amended these sections, which now provide:
(17) If an application is withdrawn following an adverse recommendation by a district committee or the standing committee, or if following such an adverse recommendation the applicant fails to appear for further proceedings or takes no further action, the standing committee shall notify the applicant that the application for admission to the bar may not be renewed until the expiration of two years from the date of the adverse recommendation by the district committee or by the standing committee, or such greater period as the committee specifies, up to a maximum period of five years. The notification shall specify the reasons for the imposition of a waiting period that is longer than two years.
(18) An applicant who has been denied character and fitness certification for admission to the bar by the Board of Law Examiners may not reapply for character and fitness certification for a period of two years following the denial or such greater period specified in the decision denying certification, up to a maximum period of five years. The decision shall specify the reasons for the imposition of a waiting period that is longer than two years.
Because the Rules now apply a waiting period of two years to both applicants who withdraw their applications and applicants who appeal to the Board, they no longer treat one group more favorably than the other. Therefore, Plaintiff's claim that the Rules discriminate against applicants who appeal their decisions will be dismissed.
B. As-Applied Challenge
Plaintiff's challenge to the processing of his pending application fails because it is not yet ripe for review by the Court. In order for a case to be ripe, the injury of which the plaintiff fears must be "certainly impending." Nat'l Rifle Assoc. v. Magaw, 132 F.3d 272, 280 (6th Cir. 1997). A case is not ripe when it "is anchored in future events that may not occur as anticipated, or at all." Id. at 284. The rationale behind the ripeness inquiry "is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." First Fed. Savings Bank Trust v. Ryan, 927 F.2d 1345, 1352 (6th Cir. 1991) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)). When determining whether a case is ripe, the Court should consider both the fitness of the issue for judicial decision and the hardship to the parties that would result from withholding consideration. Id.
In this case, Plaintiff seeks an injunction dictating the manner in which his pending application will be evaluated. The injury he fears is that the application will be denied due to consideration of unconstitutional criteria. However, Plaintiff cannot prove at this stage that his application will be improperly denied; in fact, he cannot show that the application will even be denied. Although Plaintiff claims the denial of his previous application proves his new application will be denied using unconstitutional criteria, there has never been any finding that the denial of his previous application was unconstitutional. Furthermore, even if the denial of his previous application had been improper, "past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief." Grendell v. Ohio Supreme Court, 252 F.3d 828, 832 (6th Cir. 2001) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). Additionally, Plaintiff's challenge is not ripe because an injunction at this stage would impose an undue burden on the State Bar of Michigan when there has as yet been no proof of any impending harm.
Because the potential injury to Plaintiff is not impending and not substantially certain to occur, he cannot make an as-applied challenge to the application process. Therefore, his only remaining claim is a facial challenge to the statute governing the application process.
C. Facial Challenge
A facial challenge is "[a] claim that a statute is unconstitutional on its face — that is, that it always operates unconstitutionally." BLACK's LAW DICTIONARY 223 (7th ed. 1999). A plaintiff may raise a facial challenge to a statute by arguing it vests officials with unbridled discretion, acts as a prior restraint of speech, or is overly broad and therefore has a chilling effect on free expression. See generally, Lawrence v. Chabot, No. 4:03-CV-20, 2003 U.S. Dist. LEXIS 17894 (W.D. Mich. May 7, 2003). Although Plaintiff alleges the law governing bar applications in Michigan is unconstitutional for all these reasons, none of his arguments have any merit.
Under the Revised Judicature Act, an applicant to the Michigan State Bar must show "he or she is a person of good moral character" and has the "fitness and ability to practice law in the courts of record of this state." MICH.COMP.LAWS § 600.934(1) (2004). Plaintiff argues this statute grants Bar officials "unbridled discretion" to admit or reject bar applicants. This argument was soundly rejected by the court in Lawrence because similar standards have been upheld by the Supreme Court. 2003 U.S. Dist. LEXIS 17894 at *50-51 (citing Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154 (1971)). The Court agrees with the decision in Lawrence that Michigan's standards of character and fitness do not provide officials with unbridled discretion, especially since such standards are more clearly defined in the State Bar of Michigan Standing Committee on Character and Fitness's Rules of Procedure. See Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 770 n. 11 (1988) ("when a state law has been authoritatively constructed so as to render it constitutional, or a well-understood and uniformly applied practice has developed that has virtually the force of a judicial construction, the state law is read in light of those limits"). Additionally, the Court rejects Plaintiff's related argument that the process is unbridled due to a lack of judicial review for the same reasons cited by the court in Lawrence. 2003 U.S. Dist. LEXIS 17894, at *56 (citing Fieger v. Thomas, 74 F.3d 740 (6th Cir. 1996)).
In support of his argument, Plaintiff points to the Bar's "actual actions" and "historical practices" with respect to his previous application and to the treatment of another applicant to the Bar, Stephen Dean. However, a facial challenge is limited to a reading of the statute itself; any attempt to rely on past events turns the challenge into an as-applied challenge. Therefore, Plaintiff cannot use the Bar's past actions to challenge the facial validity of the statute itself.
Plaintiff's second contention is that the statute acts as a prior restraint. Again, this argument is one that was expressly rejected by the court in Lawrence, which found the laws governing character and fitness did not directly regulate expressive activity. Id. at *49. Plaintiff makes the following claim: "If attorney-advocacy is speech (as it surely is), then an approval process that licenses it functions as a prior restraint." (Supp. Br., p. 6). However, this argument misconstrues the definition of prior restraint, which is defined as "a government restriction on speech or publication before its actual expression." BLACK's LAW DICTIONARY 1212 (7th ed. 1999) (emphasis added). Michigan's licensing process places limitations on who may become a licensed attorney, but does not place any limitations on the rights of licensed attorneys or others to speak. Although Plaintiff cites to the case Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (U.S. 2001) in support of his argument, that case involved restraints placed on the type of cases that could be brought before the court, not restraints placed on who could stand before the court as a licensed attorney.
Plaintiff's final argument is that the laws governing character and fitness are overbroad. A statute is overbroad if it specifically authorizes officials to take into account both protected and unprotected activity and if a reasonable person could be chilled by the overbreadth of the statutory language. Lawrence, 2003 U.S. Dist. LEXIS 17894 at *64. Michigan's character and fitness rules are not overbroad because "[n]othing in the statute's language addresses an individual's right to free speech or expression, nor do the statute or rules allow, let alone direct, state officers to make their decisions on the basis of past expression." Id. at *61. Because nothing in the language of the statute authorizes the Board to take into account constitutionally protected activity, a reasonable person would not be chilled from engaging in protected activity by the statute. As a result, Plaintiff's facial challenges to the statute fail.
V. Conclusion
Plaintiff has failed to show that he is entitled to injunctive relief with respect to how his pending application to the Michigan State Bar will be processed, nor has he presented a valid facial challenge to the rules governing application to the Bar. Therefore, the Court will grant Defendant's Motions for Summary Judgment and dismiss all of Plaintiff's claims against Defendants Berry and Parker. Because the Court will grant Defendant's Motions in their entirety and dismiss all claims, Plaintiff's Motion for Summary Judgment is moot. A Judgment consistent with this Opinion will be entered.