Opinion
Case No. 1:04-CV-77.
June 4, 2004
ORDER
In accordance with the Opinion filed this day,
IT IS HEREBY ORDERED that Plaintiff's Motion for a Preliminary Injunction (Dkt. No. 2) is DENIED.
OPINION
This matter is before the Court on Plaintiff's Motion for a Preliminary Injunction, in which Plaintiff requests the Court issue an injunction containing the following provisions
1) Defendant John Berry shall cause plaintiff's pending application to be processed according to the provisions set forth in this order.
2) To the extent the March 25, 2004 (or the April 27, 2004 or later) State Bar notice refers to plaintiff's mere involvement in litigation it is overly broad and such matters (items 1 through 3 therein) shall not be considered. Items 4 through 6 may be reviewed as limited by the notice.
3) Since the instant inquiry into plaintiff's moral character concerns his present moral fitness, matters previously reviewed are irrelevant and should not be considered. Provided, however, that issues concerning plaintiff's compliance with particular court orders, judgments or sanctions may be reviewed in order to assess their current status.
4) Plaintiff's application shall be processed in an expeditious manner and a recommendation shall be timely made. This should occur within 30 days. If there are adverse conclusions, they are to be enumerated and described by the particular facts said to support them. No adverse conclusion may focus on generally lawful activity and for any negative conclusion there must be a specific determination that the act/issue in question is not protected by law.
For the reasons that follow, Plaintiff's Motion will be denied.
I. Factual History
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 and Motion for Preliminary Injunction 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. 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, including the Motion for Preliminary Injunction, 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 Plaintiff's Motion for a Preliminary Injunction, 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 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.
At the hearing held on April 22, 2004, Plaintiff stated he is not seeking relief from Defendant Parker (Apr., 22, 2004 Tr., p. 33).
III. Standard of Review
In deciding whether a preliminary injunction should issue, the Sixth Circuit looks at the following four factors: "1) whether the plaintiff has established a substantial likelihood or probability of success on the merits; 2) whether there is a threat of irreparable harm to the plaintiff; 3) whether issuance of the injunction would cause substantial harm to others; and 4) whether the public interest would be served by granting injunctive relief." Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir. 2000). The Court will now examine how each of these factors relates to the case at hand
Analysis
A. Likelihood of Success on the Merits
In his Motion for a Preliminary Injunction, Plaintiff essentially makes two types of arguments, an as-applied challenge to the manner in which he believes his pending application will be evaluated and a facial challenge to the statute governing applications to the Michigan State Bar. For the reasons stated below, neither of these challenges is likely to succeed.
1) 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.
2) 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 are likely to prevail.
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.
B. Threat of Irreparable Harm
Plaintiff has not shown he will be irreparably harmed if an injunction is not issued. Without an injunction, Plaintiff's application will be processed according to the standard rules applied to all candidates. Should Plaintiff later prevail on a claim that his application was evaluated improperly, he may be admitted to the bar at that time and may be compensated through an award of monetary damages. Therefore, there is very little danger of irreparable harm. C. Substantial Harm to Others
Both the state and the judiciary would be harmed by an injunction in this case. The state has an interest in regulating the practice of law to protect the public, and intervention by the federal courts into the attorney admission process could cause substantial harm to this regulation. Id. at *78. The judiciary has a significant interest in maintaining high standards of professional and ethical conduct among attorneys, and an injunction could lead to substantial harm by creating an indefinite delay in the attorney admission process. Id. D. Public Interest
Finally, an injunction would not serve and could harm the public interest, for two reasons. First, "[t]he very purpose of a careful admission process is to protect the public from applicants who lack the character and fitness to discharge the high public trust inherent in the practice of law." Id. at *79-80. Any disruption to this process could harm the public interest. Second, Plaintiff's Motion for a Preliminary Injunction seeks the exact same relief sought in his Complaint, and the pubic interest for judicial efficiency is often harmed when a court grants relief at the preliminary injunction stage that should only be entered after a full trial on the merits. Id. at *80.
V. Conclusion
Because Plaintiff has been unable to show a likelihood of success on the merits of his claim or a risk of irreparable harm, and because both Defendants and the public would be harmed by an injunction, Plaintiff's Motion for a Preliminary Injunction will be denied. An Order consistent with this Opinion shall be issued.