Petition — Whitwell v. Board of Law Examiners

“a a

Office-Supreme Court, U.S

80-2103 oe

No. JUN 4 1981

- «AS,

In THE ie

Supreme Court of the United States

Term, 1981

Rosert Q. WHITWELL,

Petitioner,

vs.

Boarpb OF Law EXAMINERS OF TENNESSEE,

Jay Guy Beatty, Jr., Henry HALL WALKER, Jr.,

Rosert L. Green, Individually and in their official capacities,

Respondents .

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

SIXTH CIRCUIT

MANUEL P. SCARMOUTSOS

Levit, Mack & SCARMOUTSOS

5100 Poplar Ave., Suite 1408

Memphis, Tennessee 38137

(901) 683-6300

Attorney for Petitioner

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

QUESTIONS PRESENTED

(1) Whether the District Court erred in dismissing this cause

of action by a non-resident attorney for admission to practice

law who alleged arbitrary and discriminatory acts which fall

afoul of the Fourteenth Amendment by State Board of Bar Ex-

aminers for lack of subject matter jurisdiction due to states con-

trolling interest over its practices concerning admission and ap-

plication of its own rules.

(2) Whether in the alternative, the lower Court erred in failing

to withold and defer its ruling on Plaintiff’s action for the pur-

pose of injunctively enforcing adherence to his constitutional

guaranteed rights of procedural due process, to provide a full

and fair litigiation of petitioner’s claim.

TABLE OF CONTENTS

I 1. 5 pal na ccngekede ees cee4enie tn

I citi as a ee bab h 6 Rowe's Vendanue vebaeees

Constitutional and Statutory Provisions Invoked ......

(1)

(2)

(3)

(4)

(5)

MRIs WEEE oo diloas 06040 ec euedes cans

Fourteenth Amendment to the U.S. Constitu-

Article III, Section II, Clause 1, U.S. Con-

Ns te RUN Vins he's ocdpuee keke: 6's

Applicable Tennesse Supreme Court Rules

for Licensing and Admission ..............

Amended Tennessee Supreme Court Rules

Changed after Petitioner’s Application for

Reason for Granting the Writ. .............00eeeeees

SE act v0 s GMS 6b -c eceiboe © om elh KO O's EHKS Avioe ¢

Exhibit ‘‘A’’, Opinion of the Court of Appeals........

Exhibit ‘‘B’’, Opinion of the District Court for the West-

ern District of ‘Tennessee .............seseeeees

TABLE OF CASES

Baird v. State Bar of Arizona, 91S. Ct., 702 ..........

Bevins v. Six Unknown Named Agents of Federal Bur-

eau of Narcotics, 456 F. 2d, 1339, 91S. Ct., 1999...

Cantor v. Brading, 494S. W. 2d, 139 (Tenn. 1973).....

Chaney v. State Board of Caliiornia, 386 F. 2d, 962....

Davis v. Passman, 544 F. 2d, 865.............00e000.

Delgaldo v. McTighe, 442 F. Supp. 725, 727, 728, notes

EE EC aER ROR AARDED bd 0ddaUe.e db GbORSebs>

DOD Vs FUN, SIU es By SOO ck corn rtdciccbevncecse

Erdman v. Stevens, 301 N. E. 2d 426; 458 F. 2d 1205 ...

Feldman v. State Board of Law Examiners (8th Circuit

SPR ste CG ch ca kat hace bidsseseodaae

Konigsberg v. State Bar of California, 77S. Ct., 722 ...

Ktsanes v. Underwood, 552 F. 2d, 740 at 742,n.4&5

CPC EEU IE Fé cbedksar ie nsecereseauae>s

Law Students Civil Rights Research Council, Inc. v.

Wadmond, 299 F. Supp. 117, 123-124 (S.D.N.Y.

1969), aff’d 401 U.S. 154, 91 S. Ct. 720, 27 L. Ed.

PERS oa 0456 5:1.55 8S) TORS cia Keehn eke vs

Leis v. Flynt (1979) case 439 U.S. 438, 99S. Ct. 698 ....

Markham v. City of Newport News, 292 F.2d, 711 ....

McCray v. State of Maryland, 456 F. 2d, 1, at page 6...

Mildner v. Gulotta, 405 F. Supp. 182 (1975), U.S.D.C.,

E.N.Y.) 425 U. S. 901, 96 S. Ct. 1489, 47 L. Ed.

Sy TARP A ic sheverdanaWeckaceadecehevarae

17,19

iv

Monell v. New York City Department of Social Ser-

WN, Ps OLED ox ca Sc kNebs eC hs iRic es Kees 20

Monroe v. Pape, 81 S. Ct., 473, 482 ........eeeeeeees 20

Newsome v. Dominique, 455 F. Supp. 1373 (1978) ..... 17

Richardson v. McFadden, (4th Circuit) 540 F. 2d 744,

MERU Csi adhe baveke vba rthaiscvds teereaiaees 17

Ruffler v. Phelps Memorial Hospital, 453 F. Supp.,

SU SiLs Vier ad ccd eae eicsa del nee eho esed ies 20

Schware v. Board of Bar Examiners of the State of New

Mexico, 353 U. S. 232, 248; 77 Supreme Court, 752

at 761; 1 L. Ed. 2d 796 (1987) ......ccccccceeees 17

Spevack v. Klein, 87S. Ct., 628 ......cccsccccvescees 17

Sutton v. Lionel, 585, F. 2d page 400 ............005. 19

TABLE OF STATUTES

PRs Sass APR NE hibc os boda aes CeeeiEAResee 2

SPs ig RERMRDIOE oh ceseoad voce devedesvedece 17

ee erry Pre er ere yr crer 2,7,8,14

Tennessee Code Annotated 29-101, 29-109............ 8

Rule 36 and 37 Tennessee Supreme Court............. 5,6,8

Rule 37, Tennessee Supreme Court, Section 8, 8.01 .... 3

Rule 37, Tennessee Supreme Court, Section 8.05 ...... 4

Rule 37, Tennessee Supreme Court, Section 1, 1.01 &

CRP POID ES) Koc tincceceneddvecsrcvecevese 5

Rule 37, Tennessee Supreme Court, Section 8.02 ...... 3

Rule 37, Tennessee Supreme Court, Section 8.03 ...... 4

Rule 37, Tennessee Supreme Court, Section 8.04....... 4,8,15

Rule 37, Tennessee Supreme Court, Section 15.01, 15.044,10,15

Rule 42, Tennessee Supreme Court, Section 19.4 & 19.7 13

Rule 37, Tennessee Supreme Court, Section 8.02, Re-

STC SSUES GANGS 9 SNR ees Chere emi babes cs 7,9

Rule 36, Tennessee Supreme Court, Revised .......... 6,11

Section 14.03, Tennessee Supreme Court Rules........ 19

U. 8S. CONSTITUTION

po OY OS Be ee ee 2,16

PT a ic ck h6 sPansbEsebobecvencioeee 3,16

Fourteenth Amendment .............eeceeeeeeeeees 2

No.

In THE

Supreme Court of the United States

Term, 1981

Rosert Q. WHITWELL,

Plaintiff/Appellant,

vs.

Boarp Or Law EXAMINERS OF TENNESSEE,

Jay Guy Beatty, Jr., Henry HAL’ WALKER, Jr.,

Ropert L. Green, Individually and in their official capacities,

Defendants/Appellees.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

SIXTH CIRCUIT

The Petitioner, Robert Q. Whitwell, a duly licensed and prac-

ticing attorney in Southaven, Desoto County, Mississippi,

respectfully submits and prays that a Writ of Certiorari issue to

review the Judgment and Opinion of the United States Court of

Appeals for the Sixth Circuit entered in this proceeding on

March 18, 1981.

OPINION BELOW

The Opinion of the Court of Appeals (uncited) F. 2d (1981),

appears in the appendix hereto. Exhibit ‘‘A’’.

seals tas

The Opinion that was rendered by the District Court for the

Western District of Tennessee, is attached as Exhibit ‘‘B’’.

JURISDICTION

The Judgment of the Court of Appeals for the Sixth Circuit

was entered on March 18, 1981, and this Petition for Certiorari

was filed within ninety (90) days of that date, pursuant to 28

U.S.C. Section 2101 (c). This Court’s jurisdiction is invoked

pursuant to 42 U.S.C. 1983 and for violation of the appellant’s

equal protection and due process under the Fourteenth Amend-

ment to the United States Constitution.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOKED

(1) 42 U.S.C. 1983.

(2) Fourteenth Amendment to the U.S. Constitution.

**All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges or immunities of the Citizens of the United

States; nor shall deprive any person of life, liberty, or prop-

erty, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.’’

(3) Article III, Section II, Clause 1, U. S. Cor:stitution.

**Section 2. The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution, the Laws

of the United States, and Treaties made, or which shall be

made, under their Authority; -to all Cases affecting Am-

bassadors, other public Ministers and Consuls; -to all

Cases of admiralty and maritime Jurisdiction; -to con-

troversies between two or more States; -between a State

and Citizens of another State; -between Citizens of dif-

a ee

ferent States; -between Citizens of the same State claiming

Lands under Grants of different States, and between a

State, or the Citizens thereof, and foreign States, Citizens

or Subject.”’

(4) Applicable Tennessee Supreme Court Rules for Licensing

and Admission.

*‘SECTION 8. Admission by Reciprocity and Comity.

8.01. Definitions. Reciprocity is admission without ex-

amination of an applicant upon a license from another

state without reference to the time the applicant has actively

engaged in the practice of law, upon conditions no less

favorable than those iraposed by the applicant’s licensing

state for admission of lawyers licensed in Tennessee. Comity

is admission without examination of an applicant, upon

a license from another state, upon conditions no less

favorable than those imposed by the applicant’s licensing

state for admission of lawyers licensed in Tennessee, and

after the applicant has actively engaged in the practice of

law for no less than five (5) years. . . .

8.02. Admission. An applicant licensed in another state

may be admitted by reciprocity if a similar courtesy is

granted by his licensing state to lawyers licensed in Ten-

nessee applying for admission in that state. If an

applicant’s licensing state does not admit lawyers licensed

in Tennessee by reciprocity, an applicant may be admitted

by comity if a similar courtesy is granted by his licensing

state to lawyers licensed in Tennessee applying for admis-

sion in that state. In considering an application for admis-

sion by comity, if the licensing state of the applicant re-

quires applicants by comity in that state to have actively

engaged in the practice of law for a period of time different

from that specified in Paragraph 8.01, the applicant may

be admitted if he has actively engaged in the practice of law

for the period of time required of applicants by comity in

any a

his licensing state, but in no event will such applicant be

admitted if he has actively engaged in the practice of law

for less than five (5) years.

8.03. Conditions. No applicant will be admitted by

reciprocity or comity unless educational requirements for

admission to the Bar in the applicant’s licensing state are

substantially the same as in Tennessee, and unless the ap-

plicant qualifies under other pertinent provisions of Rule

37. If an applicant has been licensed by more than one

state, the Board shall determine in its discretion the licens-

ing state to which reference shall be made in determining

whether to admit an applicant by reciprocity or comity.

8.04. Application Filing Requirements. An applicant ap-

plying for admission by reciprocity or comity shall supple-

ment his application by filing with the Board: (a) a cer-

tified copy of the record of the Court in the state which

issued his license showing his admission to the Bar of that

state, which license must confer the right to practice in the

highest courts of that state; (b) three letters from attorneys

and/or judges certifying that he is in good standing at that

Bar, (c) and such other information and documents as the

Board may deem necessary to support the application.

Section 8.05 of the above referred to subject Rule provides as

follows:

**8.05. Board Certification. The Board shall certify to this

Court such persons entitled to admission under this Sec-

tion.””

SECTION 15. Grievances, Board Hearings, and Court

Review.

15.01. The Court will entertain no application from any

person whomsoever, who may be affected directly or in-

directly by Rule 37, for any change or modification

therein, or for its construction. All persons having any

et eats

grievance resulting or arising from the enforcement of Rule

37 and/or any Section thereof (other than a grievance

because of failure to pass the bar examination) shall make

application to the Board for a hearing by said Board by

serving a written request for a hearing upon the Secretary

of the Board within fifteen (15) days after notice of the ac-

tion by said Board. The written request for the hearing

made to the Board shall advise the Board of the matters

desired to be covered at the hearing. The petitioner shall

have the right to be represented by counsel and present

evidence at the time and place fixed by the Board for the

hearing. In any matter the Board may order a hearing on

its own motion, either before or after action taken by it.

Correlatively, Sections 1 and 1.02 of Rule 37 provide as

follows:

**Rule 37. Section 1. Grant of license. -1.01. A license to

practice law in the Courts of this State shall be granted by

this Court Only upon the certificate of the State Board of

Law Examiners (hereinafter referred to as ‘‘the Board’’) in

accordance with Sections 29-101 through 29-109.

Said Board shall consist of three (3) attorneys licensed to

practice law in the State, and in good standing. They shall

be appointed from time to time by this Court and shall

serve staggered terms of three (3) years. The terms of the

first Board appointed pursuant to this rule shall run one,

two, and three years respectively. (As amended February

22, 1978), Emphasis added.

**1.02. No one shall practice law in this State except upon a

license issued thereunder and in accordance with this

Rvle.”’

SECTION 16. Citizenship, Residence and Domicile Re-

quirements. Every applicant must be a citizen of the

United States at the time he files his application, and no

die Bone

person shall be eligible to receive his license until after he

shall have established both his domicile and his physical

residence within the State of Tennessee for a period of at

least two (2) months. A person may, in the discretion of

the Board, be considered as having qualified under these

domicile and residence requirements if such domicile and

residence are established in an area closely contiguous to

the boundaries of the State of Tennessee and in an area

which is customarily regarded as a residential adjunct or

suburb to the State of Tennessee.

SECTION 17. Discretion of board to refuse license. -The

Board may, in its discretion, refuse to issue a license if it

has reasonable grounds to believe that the applicant has

conducted himself in a manner as to raise questions con-

cerning his intention or ability to support the Constitution

of the State of Tennessee and of the United States and to

truly and honestly demean himself in the practice of the

legal profession to the best of his skill and abilities.

(5) Amended Tennessee Supreme Court Rules Changed after

Petitioner’s Application for licensing.

‘Rule 36. Admission to the bar of this Court will be allowed

upon motion, the applicant appearing in open court

represented through a reputable member of the bar, that he

or she is a citizen of this state, a person of good moral

character, has been duly licensed to practice law under the

statutes of this State, and intends to reside here permanent-

ly, practicing the profession of law. Citizens of this and

other states who do not intend to practice their profession

regularly in the courts of this State will not be admitted;

provided non-resident attorneys desire to argue a case in

which they have been employed, will, by comity, be allowed

to do so, when presented by a member of the bar of this

Court.”’

ARS OK

Signed, Chief Justice, and other Justices. Recorded in

Minute Book 53, Page 101, Minutes of the Supreme Court,

Nashville, Tennessee, January 25, 1978.

‘Rule 37: It is hereby ordered that Rule 37, Section 8.02 of

the Rules of this Court be, and the same hereby is amended

by adding thereto the following sentence:

‘An applicant may also be admitted after five (5) years of

practice of law upon a license from another state, whether

or not that state extends a similar courtesy to lawyers

licensed in Tennessee applying for admission there, if the

Board determines that such an applicant meets the educa-

tional requirements of Section 5, that he has taken a bar

examination equivalent to that required by the Board, that

his grade on such examination was equivalent to that re-

quired for admission to practice in Tennessee, and that he

is otherwise qualified.’

Entered this the 17th day of August, 1977. Signed by the

Chief Justice and Justices of the Supreme Court and the

same recorded in Minute Book 52, Minutes of the Supreme

Court, Nashville, Tennessee at Page 488.’’

STATEMENT OF THE CASE

This is a cause of action pursuant to 42 U.S.C., 1983, to secure

the Right of the Petitioner to his liberty and property, and for

damages and equitable relief derivative of violation of both

substantive and procedural due process and equal protection

under the Fourteenth Amendment to the U.S. Constitution to

redress the deprivations of Rights, Privileges and Immunities

secured there-nder.

The Petitioner, who since on and before January 20, 1972,

has been a resident of and a licensed practicing attorney in

Southaven, DeSoto County, Mississippi, applied to the Ten-

nessee Board of Law Examiners on June 10, 1977, for Certifica-

tion to the Supreme Court of the State of Tennessee of his

qualifications and eligibility to be issued a license to practice law

in that State under the Reciprocity provisions of Tennessee

Code Annotated 29-101 through 29-109, and Rules 36 and 37 of

the Rules of the Supreme Court of Tennessee, which were in ef-

fect at the time of his Application on June 10, 1977. His Com-

plaint alleged he had activeiy engaged in the practice of law for

five (5) years and had established domicile and residence in an

area customarily regarded as a residential adjunct or suburb of

said state, all in accordance with the applicable statutes and

rules for admission.

His Application for Certification was based upon Tennessee

Law applicable to non-residents who shall have been, for a

period of at least five (5) years, actively engaged in the practice

of law in and who were residents of and domiciled in an area

that is contiguous to and considered to be a residential adjunct

of Tenmessee. Further, the facts and/or contentions of the

Complaint were uncontroverted, as is Petitioner’s full com-

pliance with all other requirements of filing an application

under Section 8.04, Rule 37 of the Tennessee Supreme Court.

The Petitioner contends and alleged in his Complaint, a series

of discriminatory acts by the said Tennessee Board of Bar Ex-

aminers, and its members individually, who, as a matter of

policy, by scheme and devise, adopted and implemented a prac-

tice of denying such certification for licensure to attorneys from

the State of Mississippi, and particularly this Petitioner, who

wished to practice in the State of Tennessee, and who was

likewise qualified and eligible for certification under applicable

laws and Tennessee Supreme Court Rules in effect at that time.

Such ‘discriminatory acts’ alleged by the Complaint and

founded upon ‘factual pleading’ may be characterized by, but

not limited to, the following collective and individual acts of the

‘Board’ which, under the facts and circumstances obtaining, are

constitutionally prohibited, and violative of that gambit of Civil

Rights contemplated by 42 U.S.C., Section 1983:

din We

1. Arbitrary, undue and unwarranted delay of actions

by the Board;

2. Failure to enter an Order delineating scope or limita-

tions of ‘discovery’;

3. Failure and refusal to grant a ‘‘Hearing’’ as a pro-

cedural, if not substantive ‘right’ affirmatively pro-

vided by law, and

4. Implementation of a calculated course of action, the

desired effect of which was to effectively preclude this

Petitioner, and others similarly situated, from

eligibility and certification under the Rules of law ap-

pertaining thereto.

Contrary to the above provisions of the subject Rules set

forth in the Petition for Application, and without alluding to

the ‘discretionary’ grounds of Section 17 of the Rules, (after the

Board requested and the Pw/tioner supplied, additional and

corrected information and documentation, by letters of cor-

respondence June 22, 1977, and June 24, 1977, respectively) the

Board, on September 22, 1977, (the last day of time allowed

under the subject Rule) summarily denied Petitioner’s Applica-

tion for Certification, and/or Licensing, based upon the

Board’s ‘‘Finding’’ or assertion that the Petitioner did not in-

tend ‘‘to engage in the practice of law in Tennessee on a full-

time basis’’ or perform ‘‘the majority of his practice in the State

of Tennessee.’’ This decision was totally contrary to the reasons

set out in the Rules for Licensure.

Parenthetically, (unbeknowing to Petitioner, but as a matter

of relevance to the subject-matter), in the interim, on August

17, 1977, the Supreme Court of Tennessee, by Minute Book en-

try, amended the subject Rule as follows:

“It is hereby ordered that Rule 37, Section 8.02 of the

Rules of this Court be, and the same hereby is amended by

adding thereto the following sentence:

ey yor

‘An applicant may also be admitted after five (5)

years of practice of law upon a license from another

state, whether or not that state extends a similar

courtesy to lawyers licensed in Tennessee applying for

admission there, if the Board determines that such an

applicant meets the educational requirements of Sec-

tion 5, that he has taken a bar examinat.on equivalent

to that required by the Board, that his grade on such

examination was equivalent to that required for ad-

mission to practice in Tennessee, and that he is other-

wise qualified.’

Entered this the 17th day of August, 1977. Signed by the

Chief Justice and Justices of the Supreme Court and the

same recorded in Minute Book 52, Minutes of the Supreme

Court, Nashville, Tennessee at Page 488.”’

On October 3, 1977, specifically comporting to provisions of

Sections 15.01, 15.04, inclusive, Petitioner filed a formal, writ-

ten Petition for a ‘‘Hearing’’ before the Board of Law Ex-

aminers, alleging that he was qualified under the law and eligi-

ble under the pertinent Rules for certification and admission to

the practice of law in Tennessee under the provisions of

Reciprocity as aforesaid.

By letter of October 7, 1977, the Board acknowledged receipt

of Petitioner’s Petition, but by additional letter of cor-

respondence dated October 28, 1977, refunded his application

fee and advised that he would be informed of a hearing date ‘‘as

soon as possible’’.

Thereafter, as is alleged at page four (4) of the original Com-

plaint, by correspondence dated November 2, 1977, the Board,

after advising Petitioner that the ‘‘Hearing’’ would ‘‘not be an

adversary proceeding’’, and that matters of ‘discovery’ were to

be ‘‘purely discretionary’’ with the Board, requested a designa-

tion of the ‘ultimate facts Petitioner wished to submit’ at the

‘*Hearing’’, which, as was again stated, would be granted ‘‘as

soon as possible’.

— ij—

By correspondence dated November 8, 1977, (as was re-

quested) Petitioner perceptively designated the following proof-

related issues for ‘‘discovery’’:

**1. That the Board systematically attempts to refuse

license to out-of-state applicants.

2. That the Board is not acting in good faith.

3. That the Board’s actions are arbitrary, capricious and

discriminatory.

4. That the Board’s actions are in violation of (my) civil

rights.””

Thereafter, without further response or reply from the

Board, and without further action or disposition by it of Peti-

tioner’s Application for certification and admission to the Ten-

nessee Bar, (or, Petition for ‘‘Hearing’’ upon denial thereof, as

contemplated by Sections 15.01, 15.04 inclusive of Rule 37), the

Supreme Court of Tennessee, on January 25, 1978, proceeded

to amend Rule 36 which permanently excludes the Mississippi

resident, Petitioner herein, the right to be licensed in Tennessee,

in its entirety and substituted therefor the following:

“Rule 36. Admission to the bar of this Court will be allowed

upon motion, the applicant appearing in open court

represented through a reputable member of the bar, that

he or she is a citizen of this state, a person of good moral

character, has been duly licensed to practice law under the

statutes of this State, and intends to reside here permanently,

practicing the profession of law. Citizens of this and other

states who do not intend to practice their profession

regularly in the courts of this State will not be admitted;

provided nonresident attorneys desiring to argue a case in

which they have been employed, will, by comity, be allow-

ed to do so, when presented by a member of the bar of this

Court.

on se

Signed, Chief Justice, and other Justices. Recorded in

Minute Book 53, Page 101, Minutes of the Supreme Court,

Nashville, Tennessee, January 25, 1978.’’

Notwithstanding what appears to be, obviously, an ‘exclu-

sionary’ and amended Rule, ‘‘Retrospective’’ and ‘‘Ex Post

Facto’’ in nature, such amendatory Order of the Court com-

ports to and is consistent with the Board’s previous action and

**Findings’’ relative to the instant proceedings and the Board’s

denial of certification, etc.; the Rule effectively abrogates what

would otherwise be Petitioner’s eligibility for certification...

To date, and to the time of the filing of his Complaint, the

Petitioner on September 22, 1978, (to avoid the lassitudes of the

applicable one (1) year Statute of Limitations), the Board, and

its individual members (presumably relying upon such posi-

tions), neglected, failed and refused to permit, grant or allow a

**Hearing’’, or further proceedings, which under specific provi-

sion of Section 15.01 of rule 37 is a necessary prerequisite to

Common Law certiorari and review by the Court itself of the

Board’s Final Action and application of the effective and perti-

nent Rules;

Hence, Petitioner contends a denial of procedural, if not

substantive, due process, and violation of the equal protection

clause under the Fourteenth Amendment to the U. S. Constitu-

tion.

Further, it is contended, because of the State Judiciary’s vir-

tual monopoly of authority relative to his ‘vested interests’,

liberty, and property rights as a practicing attorney, (and the

resulting abuse and violation of such rights), the Petitioner

elected the Federal District Court as his proper forum for a

‘1983’ cause of action based upon the above and foregoing facts

and circumstances: that the District Court and Sixth Circuit

Court’s failure to take jurisdiction over the subject matter; that

the District Court’s application of the Doctrine of Abstention is

error. In light of these facts, this Petition for Writ is sought.

Additionally, since the filing of the Petitioner’s Application

to the Board of Bar Examiners, the Board committed other acts

of which Petitioner complained.

oni PD ais

REASON FOR GRANTING THE WRIT

(1) The decision of the lower court decided an important

question of federal law, which should not be given to the states

where relief is sought from deprivations and denial of the Peti-

tioner’s rights secured by due process and equal vrotection

clauses of the Fourteenth Amendment and bad faith on the part

of the Board of Law Examiners of the State of Tennessee.

The lower Court concluded that the District Court properly

interpreted the law and dismissed the Petitioner’s Complaint;

however, its decision stated that the Petitioner’s cause of action

alleged the denial of due process and equal protection, but based

its action upon the way a state authority has applied its laws on

regulations which is not appealable in the federal courts. Con-

versely, the Petitioner admitted in his brief before the Court

that under the authority of Cantor v. Brading, 494S. W. 2d 139

(Tenn. 1973), and other statutory laws and rules of the Court,

only the Supreme Court of Tennessee has original and exclusive

jurisdiction and/or authority to grant (or deny) admission to

that bar. (See also Section 19.4 and 19.74 of Rule 42 of the

Supreme Court of Tennessee.) Further, the Petitioner stated

specifically he does not challenge in anywise, the authority of

the judicial branch of state government to promulgate the perti-

nent rules, nor the constitutionality or propriety of such rules,

nor the form or avenue of appeal to the challenge of their validity.

To the contrary, he strongly relies upon same as both substan-

tive and procedural law in these premises. This Court should

note that Petitioner’s Complaint contained this language, but

relied on denial of certain constitutional guarantees and civil

rights as a basis of contest of the Board’s action. Petitioner con-

tends and alleges a series of discriminatory acts by the said Ten-

nessee Board of Law Examiners and its members individually,

who as a matter of policy, by scheme and devise, adopted and

implemented a practice of denying such certification for licen-

sure to attorneys from the State of Mississippi, and particularly

this Petitioner, who wished to practice in the State of Ten-

ay ee

nessee, and who was likewise qualified and eligible for certifica-

tion under applicable laws and Rules of Court in effect at that

time.

Such ‘discriminatory acts’ alleged by the Complaint and

founded upon ‘factual pleading’ may be characterized by, but

not limited to, the following collective and individual acts of the

‘Board’ which, under the facts and circumstances obtaining, are

constitutionally prohibited, and violative of that gambit of Civil

Rights contemplated ‘by 42 U.S.C., Section 1983:

(1)

(2)

(3)

(4)

(5)

(6)

Arbitrary, undue and unwarranted delay of actions

by the Board;

Failure to enter an Order delineating scope or limita-

tions of ‘discovery’;

Failure and refusal to grant a ‘“‘Hearing’’ as a pro-

cedural, if not substantive ‘right’ affirmatively pro-

vided by law, and

Implementation of a calculated course of action, the

desired effect of which was to effectively preclude this

Plaintiff/Appellant, and others similarly situated,

from eligibility and certification under the Rules of

law appertaining thereto.

Implementation of certain rule changes after his filing

for certification which arbitrarily precluded him from

licensure.

Conjuring up a reason for denial which was not the

law or Rule at the time of his filing.

The Appellant takes issue that he has failed to present a con-

stitutional question or issue which entitles him to redress or is

shown from the facts alleged in his Complaint and reiterated

here.

— 15—

Conversely, the Petitioner strongly urges that the uncon-

troverted facts and contentions of the Petitioner and his full

compliance with all requirements of the filing application under

Section 8.04 of Rule 37 of the Tennessee Supreme Court Rules

and other related sections for admittance under reciprocity

strictly adhered to and said Petitioner was qualified for cer-

tification to the Supreme Court for licensing in the State of Ten-

nessee. That disallowance of his certification and/or licensing,

was based upon the Board’s finding or assertion that the Peti-

tioner did not intend to engage in the practice of law in the State

of Tennessee on a full time basis or to perform the majority of

his practice in the State of Tennessee, which in fact was a find-

ing which was absolutely arbitrary, capricious and

discriminatory under the Tennessee Supreme Court’s own rules.

Further, the Board of Law Examiners failure to provide the Ap-

pellant with procedural due process if not substantive due pro-

cess with making such findings without a hearing violated his

rights to equal protection and due process under the Fourteenth

Amendment to the U. S. Constitution. The denial of a hearing

came after the Petitioner’s written Petition under the Supreme

Court Rules for admission, and the Board of Law Examiners

stated through their secretary that a hearing would be granted to

the Petitioner on the issues referred to. By three separate letters

stating that a hearing would be granted, the Board, neglected,

failed and refused to admit, grant or allow a hearing or further

proceedings which under the specific provisions of Section 15.01

of Rule 37 of the Tennessee Supreme Court Rules. It should be

noted that these rules are a necessary prerequisite to common

law certiorari and review by the Supreme Court of Tennessee

itself of the Board’s final action and application of the effective

and pertinent rules. (emphasis added) This contingent in itself

denied him due process and denied him access to the State

Courts which the lower Courts relied upon in their basis for

dismissing Petitioner’s complaint.

Petitioner would show that his basic legal position of law is as

follows:

— 14 —

A. There is apparently little, if any, significant factual

disparity between the relative positions of the parties to this

cause of action.

B. The legal position of Respondents, justifying and support-

ing the lower Court’s Order of Dismissal and the Sixth Circuit’s

ruling, now appears to be reflected by the 1976 Tenth Circuit

Opinion of Doe v. Pringle, 550 F. 2d, 596, and other authorities

cited therein.

Presumably, the Respondents position may be fairly sum-

marized as follows:

By virtue of the ‘“‘original and exclusive’’ jurisdiction

of the Judicial Branch of State government of matters

of ‘admission’, ‘licensing’, and ‘disciplinary’ pro-

ceedings, all matters of controversy arising therein are

founded upon Article III, section 2, Clause 1 of the

U.S. Constitution, are reviewable only by the United

States Supreme Court, and

Based upon the ‘trend’ established by ‘recent opin-

ions’ of the United States Supreme Court, and ir-

respective of the coordinate constitutional provisons

relative to legislative powers delineated by Article I,

Section 8 of the U.S. Constitution (which is the

‘enabling clause’ of Constitutional Amendments -

relative to ‘local’ subjects) the expressed intent of

Congress in the area of civil rights, and alleged Con-

stitutional deprivations, may be restricted, or ig-

nored, by judicial Fiat of the U. S. Supreme Court,

(i.e., the very Court which asserts exclusive Appellate

jurisdiction), notwithstanding relevant Congressional

considerations.

Petitioner neither subscribes to these positions, or ‘conclu-

sions’ or law as being ihe ‘law of the land’, nor does he feel this

Honorable Court is prepared to go thus far is sustaining the

ane pon

Board’s position and condoning the actions of the Respondents

as complained of, abrogating the applicability of the Federal

Civil Rights Statutes to proceedings involving those, who, as

lawyers, are foremost sworn to uphold such fundamental and

constitutional precepts.

C. In construing 28 U.S.C., Sections 1332, 1391, the Court in

a Fourth Circuit 1961 Opinion, Markham v. City of Newport

News, 292 F. 2d, 711, held that ‘‘Jurisdiction and Venue in

federal courts are matters of federal law, and cannot be con-

stricted by state statutes purporting to assign exclusive jurisdic-

tion to a state forum’’.

Petitioner respectfully insists that such a Rule is no less ap-

plicable to the instant proceedings and to the expressed Con-

gressional considerations of the Civil Rights Acts.

Further, relying upon the Doctrine of Stare Decisis, Ap-

pellant has theretofore in these proceedings cited established

authority setting forth subject-matter jurisdiction as well as

‘party’ jurisdiction in ‘Section 1983 Civil Rights Cases’. Many

such cases involved ‘Boards’, ‘Committees’ and ‘Individual’

functionaries of the Judiciary, and in some instances, the

‘Courts’ themselves.

(See: Konigsberg v. State Bar of California, 77 S. Ct.,

722; Schware v. Board of Bar Examiners of New Mexico,

77S. Ct., 752; Spevack v. Klein, 87S. Ct., 625; In Re Ruf-

Salo, 88 S. Ct., 1222; Baird v. State Bar of Arizona, 91 S.

Ct., 702; Law Students Civil Rights Council, Inc. v. Wad-

mond, 291 F. Supp. 722, 299 F. Supp., 117, 401 U.S. 154,

and 91 S. Ct., 720; McCray v. State of Maryland, 456 F.

2d, 1,6; Bevens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 456 F. 2d, 1339, 91 S. Ct., 1999; Erd-

man v. Stevens, 301 N. E. 2d, 426, 458 F. 2d, 1205;

Delgado v. McTighe, 422 F. Supp., 725; Newsome v.

Dominique, 455 F. Supp., 1373; Richardson v. McFadden,

540 F. 2d, 744; Davis v. Passman, 544 F. 2d, 865, and

Ktsanes v. Underwood, 552 F. 2d, 740.)

By analyzing and comparing the above noted cases, and those

authorities referred to and relied on by Respondents, in the

Lower Court, in Doe v. Pringle, supra, 600-603, two fundamen-

tal, underlying and controlling factors emerge when attempting

to reconcile and blend with nomenclature such as ‘abstention’,

‘equitable restraint’, ‘lack of subject matter jurisdiction’, or

recognition of the principal of ‘comity’ in our system of

federalism:

(1) The allegations of the instant Complaint do not com-

(2)

port with “‘numerous individual mistakes’’ as are

referred to...’’inevitable in the day to day administra-

tion of our affairs’’...nor to ‘‘incorrect or ill-advised

personnel decisions...’’ (550 F. 2d, 603);

The allegations in the instant proceedings, which

are to be taken as true, specifically assert that as a

matter of policy, by scheme and devise, and as a mat-

ter of adopted practice, the Respondents deliberately

failed and refused to comply with pertinent and man-

datory Rules of Court; denied Petitioner a ‘hearing’,

and did thereby deprive Appellant of access to ‘due

process’ adjudication relative to eligibility for admis-

sion to the Bar...

The distinguishing characteristic of an ‘‘Article II)

Controversy”” which would preclude District Court

‘1983’ jurisdiction in this or any other matter, is,

whether or not the subject state proceedings ‘‘provided

an opportunity for full and fair litigation’’ of Peti-

tioner’s claimed eligibility; i.e., whether denial of

same constituted such a ‘‘substantial federal ques-

tion”’ in ‘‘such a forum that the judicial power (in the

state proceedings) is capable of acting upon it’’; ¢.g.,

was the state proceeding a ‘‘final action’’ by the Ten-

nessee Supreme Court denying ‘‘admission’’ to the

practice of law in that state.

hy ae

Certainly it was not under McCray v. State of Maryland, 456

F. 2d 1,6; Chaney v. State Board of California, 386 F. 2d 962,

Feldman v. State Board of Law Examiners, 438 F. 2d 699, and

Sutton v. Lionel, 585 F. 2d. 400.

It is significant to note too, that invariably, in every case cited

by the Respondents in their Sixth Circuit Argument, the Court

has observed that ‘constitutional questions’, either expressly or

by implication, had been duly considered by the Supreme

Tribunal of the Judiciary, and disposed of.

Not so in the instant proceedings.

Section 15 of Rule 37 of the Supreme Court of Tennessee pro-

vides that ‘‘the Court will entertain no application from any

person whomsoever, who may be affected directly or indirectly

by Rule 37, for any change or modification therein, or for its

construction...’’ That Section further providing that ‘‘all per-

sons having any grievance resulting or arising from the enforce-

ment of Rule 37 and/or any Sechereof... shall make application

to the Board for a hearing...’’ (emphasis added). The Petitioner

here did so, to no avail.

Section 14.03 provides that such a hearing, and the Board’s

decision thereon, is a necessary prerequisite to an aggrieved par-

ty’s Petition to the State Supreme Court for review of the

Board’s actions upon a Petition for Common Law Writ of Cer-

tiorari based upon ‘‘a complete transcript of the proceedings of

the hearing...”’

As a matter of ‘procedural due process’ this provision of the

Tennessee Rules is readily distinguishable from those obtained

in Mildner v. Gulotta, 405 F. Supp. 182 (1975), U.S.D.C.,

E.N.Y.) 425 U. S. 901, 96S. Ct. 1489, 47 L. Ed. 2d, 751 (1976).

Further, in conclusion, it is ludicrous to assert, as the

Respondents apparently have asserted, that under the Doctrine

of Abstention, etc., Petitioner is required to exhaust his

remedies under State law (via Mandamus or Certiorari, etc.) in

.

~~

light of the holdings of the U. S. Supreme Court in Monroe v.

Pape, 81 S. Ct., 473, 482 that it is not necessary to exhaust state

remedies before a suit can be instituted under the Civil Rights

Act.

More recently, the Federal Court in Ruffler v. Phelps

Memorial Hospital, 453 F. Supp., 1062, held that to justify

dismissal for want of jurisdiction, the alleged constitutional

claim must be patently without merit, and that the Federal

remedy under statute authorizing civil action for deprivation of

civil rights is supplementary to State remedy, and the latter need

not be first sought and refused before the federal one is invoked;

and that the Defendant’s actions ‘under color of state law’ is a

jurisdictional prerequisite which has application and is

equivalent to ‘State action’ requirements of the Fourteenth

Amendment of the U. S. Constitution.

Finally, the ‘‘Trend’’ alluded to in Doe v. Pringle, supra,

page 600, relative to U. S. Supreme Court restrictions of

jurisdictional scope of ‘1983’ actions, must totally fall when

confronted with the most recent pronouncements of that Court

in extending both subject-matter and party jurisdiciton in Civil

Rights matters, as in Monell v. New York City Dept. of Soc.

Service, 56 L. Ed. 2d, 611.

Based upon the recognized ‘‘previous misapprehensions”’ of

the U. S. Supreme Court concerning the Civil Rights Act the

June 6, 1978, Opinion of the Court in the Monell case found:

(1) That local (City and County) governmantal officials

sued in their official capacities were ‘‘persons’’ under

42 U.S.C., Section 1983, and not immune from

liability.

(2) That municipal corporation, school boards, etc.,

could be sued directly for monetary, declaratory, or

injunctive relief based upon unconstitutional im-

plementation of ‘‘official policy’’, and

inte OO

(3) That city officials sued in their official capacity are

liable for a constitutional deprivation in the enforce-

ment of mere ‘‘custom’’, even though not formally

approved through the body’s decision-making chan-

nels.

The very ‘discretionary’ and discriminatory actions or inac-

tions of the Respondents herein presents a significantly close

nexus to State action, through the Board and its members, and

the challenged action of the regulated entity so that the actions

of the latter may be fairly treated as that of the State itself as is

delineated by the Monell Opinion, supra.

CONCLUSION

Petitioner respectfully submits that this case differs from the

Leis v. Flynt (1979) case 439 U.S. 438, 99 S. Ct. 698 because he

has shown the District Court he had entitlement under State law

which was denied. This is not a complaint of the way a state

authority has applied its laws which is not applicable to the

Federal District Court, but one of absolute denial of a hearing,

scheme and devise, abuse of power and denial of property right.

The Court must see that Petitioner herein is being placed in a

state of limbo. Under the Tennessee Supreme Court Rules tited,

he could not have proceeded to the Tennessee Supreme Court

for relief by a Common Law Writ of Certiorari because the

Board did not allow him to have a hearing, to seek discovery, or

to complete a final transcript of their proceedings as none were

granted. Further, the Board is an arm of the Supreme Court

who promulgates the rules and who did institute rule changes

which effected the denial of Petitioner’s rights after his filing of

the Application for Admission to exclusion permanently. The

actions of the Board as set forth here and stated in the Peti-

tioner’s Complaint, expressly gave the District Court adequate

jurisdiciton of the subject matter.

a, Fo

For these reasons, a Writ of Certiorari should issue to review

the judgment and opinion of the Sixth Circuit.

Respectfully submitted,

Manuel P. Scarmoutsos

LEVIT, MACK & SCARMOUTSOS

5100 Poplar Ave., Suite 1408

Memphis, TN 38137

(901) 683-6300

Attorney for Plaintiff/Appellant

APPENDIX

i ied dil

EXHIBIT A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

79-1437 ,

Robert Q. Whitwell,

Plaintiff-Appellant,

V.

Board Of Law Examiners,

Jay Guy Beatty, Jr.,

Henry Hall Walker, Jr.,

Robert L. Green, individually

and in their official capacities,

Defendants-Appellees.

ORDER

(Filed Mar 13, 1981)

Before: ENGEL and MARTIN, Circuit Judges and BATTISTI,

District Judge*

Appellant Robert Q. Whitwell, a Mississippi attorney,

brought a civil rights action in the district court, charging that

the defendants violated his rights under the Due Process Clause

of the Fifth and Fourteenth Amendments when they failed to

grant him a hearing on his application for admission to practice

law in Tennessee. Plaintiff also alleged that the defendants

denied him equal protection of the law under the fourteenth

Amendment when they failed to certify his eligibility to the Ten-

nessee Supreme Court. The district court granted defendants’

motion to dismiss on the basis that plaintiff had failed to allege

*Hon. Frank J. Battisti, Chief Judge, United States District Court

for the Northern District of Ohio, sitting by designation.

st ania

a case or controversy over which the federal district court had

jurisdiction. The district judge relied upon Ktsanes v. Under-

wood, 552 F.2d 740 (7th Cir. 1977), and other authorities

holding that since a state supreme court has exclusive jurisdic-

tion to decide issues concerning admission to the state bar, con-

troversies alleging a failure of that court to grant an individual

due process or equal protection are reviewable in the United

States Supreme Court, not in the United States District Court.

Upon our review, we conclude that the district court properly

interpreted the law and dismissed plaintiff’s complaint. In Leis

v. Flynt, 439 U.S. 438 (1979), the Supreme Court held that the

licensing and regulation of lawyers has been left exclusively to

the states and the District of Columbia within their respective

jurisdictions. The decisions in Kisanes, supra, and Doe v.

Pringle, 550 F.2d 596 (10th Cir. 1976), cert. denied, 431 U.S.

916 (1977), establish that actions alleging an individual denial of

due process or equal protection, based upon the way a state

authority has applied its laws on regulations, is not appealable

to the federal district courts.

This is the posture of the present appeal. Appellant has not

alleged that a particular law or rule is unconstitutional, but

rather attacks the manner in which state rules were applied to

his particular bar application. For this his remedy, if any, must

be through the Tennessee courts and then by direct appeal to the

Supreme Court. Accordingly,

IT IS ORDERED that the judgment of the district court is af-

firmed.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman

Clerk

on ied a

UNITED STATES DISTRICT COURT

For The

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

Civil Action File No. 78-2493

Robert Q. Whitwell

v.

Board Of Law Examiners Of Tennessee, ef a/

JUDGMENT

(Filed July 12, 1979)

This action came on for consideration before the Court,

Honorable Robert M. McRae, Jr., United States District Judge,

presiding, and the issues having been duly considered and a

decision having been duly rendered.

It is Ordered and Adjudged that this cause is dismissed in

compliance with Order Granting Defendants’ Motion To

Dismiss entered July 11, 1979.

APPROVED:

Robert M. McRae, Jr.

United States District Judge

Dated at Memphis, this 12th day of July, 1979.

/s/ J. Franklin Reid

Clerk of Court

fecegy eae

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

No. 78-2493

Robert Q. Whitwell,

Plaintiff,

v.

Board Of Law Examiners ef al,

Defendant.

ORDER GRANTING DEFENDANTS’ MOTION

TO DISMISS

(Filed July 11, 1979)

Plaintiff, Robert Q. Whitwell, is a resident, licensed, practic-

ing attorney in the State of Mississippi. Defendants are the

Board of Law Examiners of Tennessee; Jay Guy Beatty, Jr., in-

dividually and in his capacity as President of the Board; Henry

Hall Walker, Jr., individually and in his capacity as Vice-

President of the Board; and Robert L. Green, individually and

in his capacity as Secretary-Treasurer of the Board. Plaintiff

asserts that the defendants have unconstitutionally denied him a

license to practice law in the State of Tennessee by refusing to

issue a certificate to the Supreme Court of Tennessee.

Nature of Motion

Defendants have moved to dismiss the suit on the grounds

that this Court lacks subject matter jurisdiction and that the

complaint fails to state a claim upon which relief may be

granted.

io a ws

Statement of Facts

On June 10, 1974, plaintiff applied for a license to practice

law in Tennessee pursuant to Tenn. Code Ann. 29-101-110, and

Rules 36 and 37 of the Tennessee Supreme Court Rules. On

June 22, 1977, the executive secretary of the Board returned the

application so that additional questions could be answered by

plaintiff and for an additional letter of good standing from a

member of the Mississippi Bar. On June 24, 1977, plaintiff

returned these materials to the Board. On September 22, 1977,

plaintiff received notification that his application had been

denied. The basis of the denial was that plaintiff did not intend

to engage in the practice of law in Tennessee on a full-time basis

or perform the majority of his practice in the State of Ten-

nessee. On October 3, 1977, plaintiff requested a hearing before

the Board. As yet, no date has been set for a hearing. By this

suit, plaintiff seeks both damages and a certificate to the

Supreme Court of Tennessee that he is entitled to a license

under 42 U.S.C. of 1983.

Discussion

Section 1 of the Tennessee Supreme Court Rule 37 provides

that ‘‘[a] license to practice law in the Courts of this State shall

be granted only upon the certificate of the State Board of Law

Examiners .. . . ’’ Section 8.05 provides that ‘‘[t}he Board shall

certify to this Court such persons entitled to admission... .””

While it is true that non-resident attorneys may appear in the

state courts of Tennessee by comity, Rule 37 §8.06 provides this

courtesy to attorneys ‘‘who do not desire to practice regularly in

this State... . ’’ Section 16 of Rule 37 states that a resident of

an area contiguous to Tennessee may qualify as a resident, in

the Board’s discretion, for purposes of acquiring a Tennessee

law license.

Plaintiff desires to be admitted on his Mississippi license by

reciprocity. To that extent, Knowlton v. Board of Law Ex-

aminers, 513 S.W.2d 788 (Tenn. 1974), states that residency

ran eee

may be required for admission on comity or reciprocity. This

was not a denial of equal protection, since Knowlton could take

the bar examination and thus be admitted.

Admission to a bar of a state is a matter concerning the

judicial branch of the state government. Cantor v. Beading, 494

S.W.2d 139 (Tenn. 1973). The Supreme Court of Tennessee is

the proper forum for plaintiff. If plaintiff deems any issue ap-

propriate for further service, his appeal is then to the United

States Supreme Court. State ex rel Carden v. Fones, 539 S.W.2d

810, 811 (Tenn. 1976). ae

An Article III controversy is created by denial of a claim of

present right to admission to the bar of a state. Willner v. Com-

mittee on Character, 373 U.S. 96, 102 (1963). Where there is no

case or controversy presented by the complaint which would be

recognizable in the Supreme Court of the United States, the

federal district court does have jurisdiction to hear the com-

plaint. Ktsanes v. Underwood, 552 F.2d 740 (7th Cir. 1977).

There is no jurisdiction in the federal district court to review a

final action of a state supreme court concerning the disposition

of one application. Delgado v. McTighe, 442 F.Supp. 725 (E.D.

Penn. 1977).

Since plaintiff claims a present right to admission to the bar

of the State of Tennessee has been denied, an Article III con-

troversy is created and the district court lacks jurisdiction over

the subject matter. Defendant’s motion to dismiss for lack of

subject matter jurisdiction is granted.

ENTER: This 11th day of July 1979.

/s/ Robert M. McRae, Jr., Judge