explaining that “if every act performed by virtue of judicial power were deemed a ‘decision’ [under section 1291], there would be no meaning to the restrictive intention in the section of the statute with which wé are dealing.”
How later courts described this case
- explaining that “if every act performed by virtue of judicial power were deemed a ‘decision’ [under section 1291], there would be no meaning to the restrictive intention in the section of the statute with which wé are dealing.”
- holding that court of appeals lacks jurisdiction over appeal from district court disbarment order
- a district court’s application of its rules to deny someone admission to its bar “is not appealable”
- “So far as the District of Columbia is concerned, the Organic Act of 1801 retained all laws of Maryland then in effect.”
Written by the judges who cited it.
The opinion
r-.- ». T , EDGERTON, Circuit Judge ’
, (concur- . . rmg m the result).
As the court points out near the end of its opinion, Brooks made no attempt to appeal within the time fixed by the Federal Rules of Civil Procedure. V/e should therefore deny his present motion. Moreover it is, as the court says, “obvious that Brooks failed, in the papers he filed with the District Court, to show that he was entitled to admission to the bar of that court * * *.” He showed he was not entitled. Therefore an appeal, even if promptly filed, would have been dismissed on motion. This is a second reason why we should deny Brooks’s present motion, Accordingly we have no occasion to consider the question the court discusses and answers in the negative, “whether rejection by the District Court of an application for admission to its bar is a decision within the meaning of Section 1291 of Title 28 of the United States Code” and is therefore appealable. What the court says on this subject appears to me to be dictum rather than decision. But lest it be followed in future cases I think it should not go unanswered,
The Supreme Court has held recently, expressly, and without qualification that “A claim of a present right to admission to the bar of a State and a denial of that right is a controversy." In re Summers , 325 U.S. 561, 568 , 65 S.Ct. 1307 , 89 L.Ed. 1785 . No one suggests that there is a differenCe in this respect between the bar of state and the bar of the District Court. Yet this Court says it is “holding * * * that an application for admission to the bar is not a case, cause or controversy, that the rejection of an applicant * * * is not a decision * *."
The Supreme Court reviewed, as the decision of a controversy, the Illinois court’s refusal to admit Summers to the Illinois bar. The Supreme Court was indeed concerned with the circumstances of the refusal" but only for a reason that has nothing to do with the present case. Whether a final decision of a state court may or may not be reviewed in the Supreme Court depends upon circumstances. Accordingly the Court said: “For the purpose of determining whether the action of the Supreme Court of Illinois in denying Summers’ petition for an order for admission to practice law in Illinois is a judgment in a judicial proceeding which involves a case or controversy reviewable in this Court under Article III, § 2, Cl. 1 of the Constitution of the United States, we must for ourselves appraise the circumstances of the re fusal.” 325 U.S. at page 566 , 65 S.Ct. at page 3310 . (Emphasis supplied.) To like effect, immediately after the Court’s unqualified statement that “A claim of a present right to admission to the bar of a state and a denial of that right is a controversy” the Court said: “When the claim is made in a state court and a denial of the right is made by judicial order, it is a case which may be reviewed under Article III of the Constitution when federal questions are raised and proper steps taken to that end, in this *32 Court.” 325 U.S. at pages 568-569, 65 S.Ct. at page 1312 . (Emphasis supplied.)
This court treats the proposition (1) that circumstances determine whether a controversy over a claimed present right to admission to a state bar is reviewable by the Supreme Court, as if it meant (2) that circumstances determine whether denial of a claimed right to admission to a bar creates a controversy. But these two propositions are distinct, and the second does not follow from the first. This court suggests no technical, practical, or other reason for the second proposition. Moreover the Supreme Court, so far from announcing or suggesting the second proposition, contra-dieted it in the Summers case by stating categorically that a denial of a claimed present right to admission “is a controversy”.
This court emphasizes the fact that the District Court’s refusal to admit Brooks was not by formal order but by letter. It overlooks the fact that the Illinois court’s refusal to admit Summers Was not by formal order but by letter. 325 U.S. at page 564 , 65 S.Ct. 1309 . This court takes precisely the view the Illinois court took of the question whether such a refusal is an administrative matter or a judicial decision of a controversy. The Supreme Court took the opposite view of that question. This court quotes as if it were a statement of the Supreme Court’s own view what I understand to be merely the Supreme Court's statement of the Illinois view, i. e. that the matter is administrative. The Supreme Court recognized that the Illinois decision would have ended the controversy but for the fact that the particular “circumstances of the refusal” to admit Summers made the decision reviewable in the Supreme Court. But that is irrelevant here, since all final decisions of the District Court are reviewable in this court or the Supreme Court and all decisions of this court are reviewable in the Supreme Court. 1
The Summers doctrine is not new. As long ago as 1866 the Supreme Court said, in discussing the admission of attorneys, “Their admission or their exclusion is not the exercise of a mere ministerial power. It is the exercise of judicial power, and has been so held in numerous cases.” Ex parte Garland, 4 Wall. 333 , 71 U.S. 333 , 378—379, 18 L.Ed. 366 . The Court cited with approval Matter of Cooper, 1860, 22 N.Y. 67, 81 , in which the New York Court of Appeals held that a trial court’s order denying an application for admission to the bar was appealable, found error, and reversed.
In Carver v. Clephane, 1943, 78 U.S, App.D.C. 91, 137 F.2d 685 , the District Court, after a hearing, had dismissed a complaint that sought to require its Committee on Admissions and Grievances to certify Carver for admission to the District Courts bar. Carver appealed-to this court. We considered and affirmed the validity of the District Court’s order denying Carver’s claimed right to admission to the bar. We thereby gave an affirmative answer to the question whether such an order is appealable.
The courts say “the whole purport of admission to the bar in- this country, and in this jurisdiction, and in our' own court, is that the Committee and the court can inquire into the applicant’s character by confidential inquiry * * *." This seems to imply that applicants may be finally rejected on the basis of secret attacks on their character by secret informants. I think the law is-otherwise, A report on Admission of Attorneys from Other Jurisdictions, prepared by Goscoe O. Farley, Secretary of the Committee of Bar Examiners of the State Bar of California, for the Survey of the Legal Profession and published in Bar Examinations and Requirements for Admission to the Bar (1952), seems to *33 show that the prevailing practice in this country is not what this court supposes, The report says (p. 161-162): “the applicant who has never been convicted of a crime or disciplined by a grievance committee, but nevertheless is known to be an unethical practitioner by his fellow lawyers, often is able to get his application accepted by the examining board, There are several reasons for this. In the first place, the information obtained by The National Conference of Bar Examiners is confidential (it needs to be so, else many sources of information would be closed to it) and hence occasionally an examining board will have derogatory information about an applicant, and not be able to use it. This insufficiency can sometimes be overcome by skillful interrogation of the applicant so as to get him to admit the wrongdoing, or by proving it through another (not confidential) source.” The Supreme Court said in 1866: “Attorneys * * * are officers of the court, admitted as such by its order, upon evidence of their possessing sufficient legal learning and fair private character. It has been the general practice in this country to obtain this evidence by an examination of the parties.” Ex parte Garland, 4 Wall. 333 , 71 U.S. 333, 378 , 18 L.Ed. 366 .
I agree with this court that if, as I think, the District Court’s rejection of petitioner’s application was a judicial decision it should have been made upon a record of evidence presented in open court. But I disagree with the court s statement that if the rejection is appeal-able this court must assume the burden of evaluating qualifications for admission to the bar of the District Court. This seems to me as erroneous as it would he to say that if the District Court s denial of a claim in contract or tort is appeal-able this court must assume the burden of evaluating the evidence in such cases. Our function is not to retry cases but to determine whether in our opinion the trial court followed the law.
When secret informants have made secret charges against an applicant possibly a Committee on Admissions may decline to recommend his admission, for its action is not final if he chooses to take his application to court. But for a court finally to reject an applicant because of secret charges by secret informants would be as shocking as to disbar a lawyer, or convict a man of crime, on such charges. By innocent mistake or incompetence or carelessness or malice a eon-fidcntial informant may make false charges. Elementary fairness and therefore due process of law forbid finally rejecting, on grounds of character, an otherwise qualified applicant without allowing him a public opportunity to confront his accusers and refute their charges. The right to a public hearing is also a necessary safeguard against rejection because of charges which are true but irrelevant, e.g. that an applicant has unconventional social, political, or economic views,
. “The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States * * * except where a direct review may be had in the Supreme Court.” 62 Stat. 929 , 28 U.S.C.(Supp. V) § 1291. “Cases in the courts of appeals may be reviewed by the ’ Supreme Court”. 28 U.S.C. (Supp. V) § 1254.