Petition — Hoover v. Ronwin
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8 2 1 474 Office-Supreme Court, US.
FILED
a WAR 2 1083
In the Supreme Cou escuela tig
OF THE
United States
Ocroser TERM, 1982
Cuarues R. Hoover, Howarp H. Karman, Rosert D. Myers
and Haroup J. WoLFINGER,
Petitioners,
VS.
Epwarp Ronrwiy,
Respondent.
Petition for Certiorari to the United States
Court of Appeals for the Ninth Circuit
CuHares R. Hoover
111 West Monroe
Phoenix, Arizona 85003
(602) 262-5911
Petitioner in Propria Persona,
and Counsel of Record for
the Remaining Petitioners
Donn G. KessLer
JENNINGS, Strouss & SaLMon
111 West Monroe
Phoenix, Arizona 85903
Of Counsel
BOWWNE OF GAN FRANCISCO, INC. * ISO NINTH ST. © &.F..CAS4103 © (418) 864-2300
QUESTIONS FOR REVIEW
1. Petitioners were members of the Arizona Supreme
Court’s Committee on Examinations and Admissions.
Were petitioners’ acts in grading the Arizona bar examina-
tion immune from federal antitrust liability as direct
action by the state itself?
2. Is this state action immunity dispelled because
petitioners exercised discretion in grading the examination?
3. The Committee on Examinations and Admissions
grades the bar examination and recommends to the
Arizona Supreme Court that the court grant or deny
admission to applicants. Are these acts immune from the
federal antitrust laws under the Noerr-Pennington doc-
trine as efforts to influence official action?
4. Can a federal antitrust action be used to challenge
a failing grade on a bar examination?
OTHER PARTIES BELOW’
‘Additional parties to this case in the Court of Appeals were as
follows: James L. Richmond and George Read Carlock were mem-
bers of the Committee on Examinations and Admissions and stand
in the same position as petitioners. D. Thompson Slutes was a
member of the Committee and was named as a defendant, but
apparently was never served. The State Bar of Arizona was named
as a defendant, as were the wives of each of the individual defend-
ants (Wanda Carlock, Judith Myers, Jane Doe Wolfinger, Jane
Doe Richmond, Jane Doe Slutes, Jane Doe Karman and Jane Doe
Hoover). The Court of Appeals affirmed dismissal of the complaint
as to the State Bar and each of the wives. Ronwin v. State Bar
of Arizona, 686 F.2d 692, 694 n. 1 (9th Cir. 1981). Petitioners do
not challenge this portion of the Court of Appeals’ decision.
ii
TABLE OF CONTENTS
a ical cacvensscenaseescoreswecesenreccenscesecees
EE
a iedhcscastdooessanscsecncucvoccesescscenscsnceseceese
|e scvcbesevseccccescocccccs
Statutory provisions and rules involved:
EL |
Rules of the Arizona Supreme Court ..0000..000..00.0.0008.
a enonsesenecccccvecceses
Reasons for granting the writ .........................ccsc.ssesssssoeeees
&
A federal antitrust action cannot be used to chal-
lenge a failing grade on « bar examination ..........
Grading bar examination: is action by the state
itself, immune from the antitrust laws ................
a.
The Midcal test does not apply to action
Tila caccseconsssecesecacorssee
As members of the Arizona Supreme Court’s
committee on examinations and admissions,
petitioners acted as state officials .....0.00000......
Even if the Mideal test were applied, peti-
tioners would be entitled to state action im-
tt cccrtaatcssctnscenssiecscescenstorenoeees
The Noerr-Pennington doctrine immunizes peti-
tioners’ recommendations regarding bar admis-
Tee al i scnssnnevesnencesocsccssocnsee
a numrnestcececvecvecoce ;
Page
14
15
21
ili
TABLE OF AUTHORITIES CITED
Cases
Page
Bates v. State Bar of Arizona, 433 U.S, 350 (1977)....6, 10, 11
Benson v. Arizona State Bd, of Dental Examiners, 673
Fae eee CN Car OD asocinscassasbectiicnsbeaehiddamomectiadbagiia: 13
Brown v. Board of Bar Examiners, 623 F.2d 605 (9th
COME ON pecheccttenioetirty-cnciasdvasacncebnensghadidadenssmieanikeaele 6
California Motor Transport Co. v. Trucking Unlimited,
Po RE EE: | | SRsmumene aeRO Al apt Roe eaS Wale non Ua 18
California Retail Liquor Dealers Ass'n v. Mideal Alu-
minum, Inc., 445 U.S. 97 (1980) ........5, 9, 12, 14, 15, 16, 17
Cantor v. Detroit Edison Co., 428 U.S. 579 (1976) .......... 9,11
Chaney v. State Bar of California, 386 F.2d 962 (9th
Cir. 1967), cert. denied, 390 U.S. 1011 (1968) .0.00...... 6
City of Lafayette, La. v. Louisiana Power & Light Co.,
435 U.S. 389 (1978) ..... ssienststedabnishabidilicestiataam tal 9, 10, 12, 16
Clipper Exxpress v. Rocky Mountain Motor Tariff Bu-
reau, Inc., 674 F.2d 1252 (9th Cir. 1982), petition for
certiorari filed, 51 U.S. L.W. 8512 (U.S., Jan. 3, 1983,
Wi OEE eee 20
Community Communications Co. v. City of Boulder,
Cat, WRG TET ROR aia csc ticincissicieticknetnetaenae 9,11,12
Application of Courtney, 83 Ariz, 231, 319 P.2d 991
IIIT Ds cicsnaseicscaccnsccanstcsicenieliaoiniasianeabatasinile th cadeneicdeoiaadecmie 17
Deak-Pereira Hawaii, Inc. v. Department of Transpor-
tation, State of Hawaii, No, 82-0334, ...... F.Supp. ......,
44 A.T.R.R. p. 286 (D. Hawaii Jan, 3, 1983) ............ 18
Doe v. Pringle, 50 F.2d 596 (10th Cir. 1976) cert.
eee, Sen tae. GOR CERT) senctienccctoncneaes 6,7
Eastern Railroad Presidents Conference v. Noerr
Motor Freight, Inc., 365 U.S. 127 (1961) .00 18, 20
ORT ie cs Fg te 13
iv
Taps_e or AuTHORITIES CITED
CASES
Page
Euster v. Eagle Downs Racing Ass’n, 677 F.2d 992 (3d
Cir.) cert. denied, ........ ip Sea , 103 S.Ct. 388
RIN ce cd. sc iateicsancacealanica geeentinnantaseneinadiinae baa 13
Feldman v. Gardner, 661 F.2d 1295 (D.C. Cir. 1981)
cert. denied, ........ ER , 102 S.Ct. 3483 (1982)
cert. granted on another issue sub. nom, District of
Columbia Court of Appeals v. Feldman, ........ US.
ate “ea 1 eh
Feldman v. State Board of Law Examiners, 438 F.2d
I COs CB, RTE) sais icecencensescnceniedinesscinwnntncninsanncons 7,14
Foley v. Alabama State Bar, 648 F.2d 355 (5th Cir.
IE) coors crcserencencoimssiennsmnisanedeonndonpoonnobyneopenenteincitietia 12
Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975)...
Sh SE RPA Sea Ae SD! REE NTH BA AE 9,10, 11,15
Application of Guberman, 90 Ariz. 27, 363 P.2d 617
CI ica secession pe ificwtndesusntepospansacislatclgetcireenninianiticleie 17
In re Summers, 325 U.S. 561 (1945) ......0.....ccccccccssscsscseseees 14
Application of Klahr, 102 Ariz. 529, 433 P.2d 977.......... 17,19
Konigsberg v. State Bar of California, 353 U.S, 252
BD cid csccnsccensnccbseoveteniocedunntenentpmncnicnnidpoasannberieseetnhcinoaes 5
Langnes v. Green, 282 U.S. 531 (1981) .....cccceeeeseeeenees 18
Application of Levine, 97 Ariz. 88, 397 P.2d 205 (1964)
EE APES, RS OOS EEN NT NII AB 7,14, 19
New Motor Vehicle Bd. v. Orrin W. Fox Co., 439 U.S. 96
III scar tseceacnauhicustsavscnsimanancabicserehgebiaiiiinetial 11, 12, 16, 20
Parker vy. Brown, 317 U.S. 341 (1943) ........ cece cesses 10
Princeton Community Phone Book, Ine. v. Bate, 582
F.2d 706 (3d Cir.), cert. denied, 439 U.S. 966 (1978) ......12
v
TasBLe oF AvuTHORITIES CITED
Cases
Page
Richardson v. McFadden, 563 F.2d 1130 (4th Cir. 1977)
(Hall, J., concurring), cert. denied, 435 U.S. 968
CRITE cence... SR 5 RESTORE EEO EL AR PE asks 3 EN 14
Ronwin v. Committee on Examinations and Admissions,
Se Se ee CRED hhc cheer emeepen 4
Application of Ronwin, 113 Ariz. 357, 555 P.2d 315
(1976). This Court denied certiorari. 430 U.S. 907
TI ec sas roses cetcs cots cnceseveoneneutcciepasesnauhegiieiiehi eee ieicanenaes 4,19
Ronwin v. State Bar of Arizona, 686 F.2d 692 (9th
SIAC UENEIO ecskancdincecscsiructedppeunmcnaneiganicidmmibaan i, 1, 4, 5, 9, 10, 15
Schware v. Board of Bar Examiners, 353 U.S. 232
IU csc nicoLssinciclabivs tou sictacdislslderslieniacdteuboahatadeeadeanaao 6
Theard v. United States, 354 U.S. 278 (1957) ..0. 6
Tyler v. Vickery, 517 F.2d 1089 (Sth Cir. 1975), cert.
Seied 498 TB, OAD (IBGE) anc iccjentnrmadncsniontion 6
United Mine Workers v. Pennington, 381 U.S. 657
|_| RRM I SRIRAM RENEE EASE MN 18
Statutes and Rules
15 U.S.C. :
BUI Tk sass, cacoactecrnpsnicoiianicevennicicbiceickadhal a baaieuinctaaiaiaaiaaaaiae 2
S| FASTA REI RETR AAP ETE ta e) EP 4
TF ete, MONG BIDET) oc ccncevewsistsspnodenshonstingtnethesienetaaame 2
ATO), Temtetn LOGS nits a sicssccssic cite ceeded 7
Arizona Supreme Court Rules:
BIS SI” is sn socinnnsisonasssicnsibsalecanssnapsbdelianesietiisoeneiniaiaataaaienain 2,7
BOD. 9 iy inss-cstenestacthnicdnrhindsicoetickasatelicdableaii ae 7, 14, 16,17
Be Se CV TENG) gsc-nsvic<cssvcsontnseisiiitesaiicemecnainai 3, 15, 17
vi
Tasie or Autuorities CITED
Books, Periodicals and Reports
Page
Areeda, Antitrust Immunity for “State Action” After
Lafayette, 95 Harv.L.Rev. 435 (1981) ..................+ 13, 16
The Bar Examiners’ Handbook (S.Duhl, 2d ed. 1980) 7
Burger, The Special Skills of Advocacy: Are Special-
ized Training and Certification of Advocates Essen-
tial to Our System of Justice? 42 FordhamL.Rev. 227
IIE Soke aghichaccg:capsnce etwoassSinicliedecea pevatupa meine koioesannteae 8
Final Report of the Committee to Consider Standards
for Admission to Practice in the Federal Courts
(1979), reprinted at 83 F.R.D. 215 «0.0.0.0... 8
F. Klein, S. Leleiko & J. Mavity, Bar Admission Rules
and Student Practice Rules (1978) ..........c0ccceeeee 7
Maddi, Trial Advocacy Competence: The Judicial Per-
spective (1978) A.B.F. Research J. 105 ....000.00.......... 8
No.
In the Supreme Court
OF THE
United States
Octoser TERM, 1982
Cuartes R. Hoover, Howarp H. Karman, Rosert D. Myers
and Haroup J. WoLFrinGer,
Petitioners,
Vs.
Epwarp Roxwis,
Respondent.
Petition for Certiorari to the United States
Court of Appeals for the Ninth Circuit
OPINIONS BELOW
The Court of Appeals’ decision as amended on rehearing
is published at 686 F.2d 692 and is reprinted in the
Appendix. The Court of Appeals’ original decision,
entirely superseded by the amendment on rehearing, is
published at 1981-2 Trade Cas. (CCH) { 64,414.
No opinion was rendered by the United States District
Court for the District of Arizona. Its order and judgment
dismissing the action are reprinted in the Appendix.
JURISDICTION
The Court of Appeals for the Ninth Circuit entered its
original judgment on December 14, 1981. A timely petition
for rehearing and suggestion of appropriateness of rehear-
ing en banc was filed, and rehearing was granted on
July 29, 1982.
2
A new judgment of the Court of Appeals was entered
on September 8, 1982. A timely petition for rehearing and
suggestion of appropriateness of rehearing en bane was
filed with respect to the new judgment. This petition was
denied on December 2, 1982.
The petition for certiorari is filed within 90 days after
December 2, 1982. This Court’s jurisdiction is invoked
under 28 U.S.C. 6 1254(1).
STATUTORY PROVISIONS AND RULES INVOLVED
United States Code, Title 15
Section 1. Trusts, Etc., In Restraint Of Trade Illegal
Every contract, combination in the form of trust or
otherwise, or conspiracy, in restraint of trade or commerce
among the several States, or with foreign nations, is
declared to be illegal... .
Rules of the Arizona Supreme Court’
Rule 28. Examination and Admisston
(a) The examination and admission of applicants for
membership in the State Bar of Arizona shall conform to
this Rule. For such purpose, a committee on examinations
and admissions consisting of seven active members of the
state bar shall be appointed by this court. ... The com-
mittee shall examine applicants and recommend to this
court for admission to practice applicants who are found
by the committee to have the necessary qualifications
The quoted Rules were in effect in 1974; the Rules presently in
force contain no changes material to the issues herein.
3
and to fulfill the requirements prescribed by the rules of
the board of governors as approved by this court respect-
ing examinations and admissions. ... The court will then
consider the recommendations and either grant or deny
admission.
(Amended effective September 15, 1970.)
(c)(VII)(B) The Committee on Examinations will file
with the Supreme Court thirty (30) days before each ex-
amination the formula upon which the Multi-State Bar
Examinativn results will be applied with the ocher portions
of the total examination results. In addition the Commit-
tee will file with the Court thirty (30) days before each
examination the proposed formula for grading the entire
examination.
(Amended effective January 15, 1974.)
STATEMENT OF THE CASE
Petitioners are Arizona attorneys. In 1974 they served
under appointment by the Arizona Supreme Court on that
court’s Committee on Examinations and Admissions (the
“committee”).
Respondent Edward Roawin took the Arizona bar exam-
ination in February 1974. He did not receive a passing
grade. The committee recommended that the Arizona
Supreme Court deny him admission to the Arizona bar.
Ronwin unsuccessfully petitioned the Arizona Supreme
Court to review his examination, and was denied admis-
sion. He unsuccessfully petitioned this Court for a writ of
4
certiorari. Ronwin v. Committee on Examinations and Ad-
missions, 419 U.S. 967 (1974).°
Ronwin timely filed this action in the United States
District Court for the District of Arizona, claiming federal
jurisdiction under 15 U.S.C. §15 and alleging that peti-
tioners and the State Bar of Arizona violated section 1
of the Sherman Act by conspiring artificially to reduce the
number of applicants admitted to practice in Arizona, thus
restraining competition among attorneys in that state.
Allegedly, petitioners restricted admission by giving
each applicant’s paper a “raw score.” Once these “raw
scores” were known, petitioners chose a particular “raw
score” as the passing grade. According to Ronwin, the
number of applicants who passed thus depended on the
“raw score” chosen as a passing grade “rather than [on
the] achievement by each Bar applicant of a pre-set
standard.”
The district court dismissed Ronwin’s complaint, holding
that it failed to state a claim on which relief could be
granted.‘
*Ronwin again applied to take the Arizona bar examination in
July 1974. The Committee denied his application, being unable to
certify him to be “mentally and physically able to engage in active
and continuous practice of law.” After a formal hearing on the
question, a (different) special committee found Ronwin mentally
unfit to practice law. The Arizona Supreme Court affirmed this
finding. Application of Ronwin, 113 Ariz. 357, 555 P.2d 315 (1976).
This Court denied certiorari. 430 U.S. 907 (1977); 439 U.S. 828
(1978).
‘The district court also held that it lacked subject matter j
diction and that Ronwin lacked standing to sue. It also degi
Ronwin’s recusal motion. The Court of Appeals affirmed the d
of recusal but reversed the other holdings. 686 F.2d at 698-700.
These rulings are not challenged by this petition.
av
On Ronwin’s appeal, the Court of Appeals reversed as
to petitioners. See n. 1 above and 686 F.2d at 694 n. 1 as to
other parties. The majority opinion rejected the argument
that “the Committee's status as a state agent renders its ac-
tions absolutely immune from antitrust liability.” 686 F.2d
at 695. It held that the Committee's grading practices were
not dictated by any “clearly articulated and affirmatively
expressed state policy” and were not “actively supervised
by the state itself,” as it thought to be required by Cali-
fornia Retail Liquor Dealers Ass'n v. Midcal Aluminum,
Inc., 445 U.S. 97, 105 (1980). 686 F.2d at 695-698.
Ferguson, J., dissented, veasoning that defendants acted
as state officials in their capacity as bar examiners and
were immune from antitrust liability because their acts
were authorized “pursuant to a state policy to displace
competition with regulation.” 686 F.2d at 705-706.
REASONS FOR GRANTING THE WRIT
1. A Federal Antitrust Action Cannot Be Used to Chal-
lenge a Failing Grade on a Bar Examination
As this Court has held, “the regulation of the activities
of the bar is at the core of the State’s power to protect the
public. ... ‘The interest of the States in regulating lawyers
is especially great since lawyers are essential to the pri-
mary governmental function of administering justice, and
have historically been “officers of the courts.”’ [Citation.]”
Bates v. State Bar of Arizona, 433 U.S. 350, 361-362 (1977).
Recognizing “the importance of leaving States free to
select their own bars,” Konigsberg v. State Bar of Cali-
fornia, 352 U.S. 252, 273 (1957), this Court and all lower
federal courts have traditionally refrained from reviewing
6
state bar admissions decisions except within an exceedingly
narrow constitutional ambit. See, Theard v. United States,
354 U.S. 278, 281 (1957).
As the Ninth Cireuit has held elsewhere:
Admission of applicants to the bar of a state is a
matter of local concern. ... The only constraints on
the states’ exclusive jurisdiction are constitutional in
nature: a person may not be excluded from the prac-
tice of law in a manner or for reasons which contra-
vene the Fourteenth Amendment, nor can the state
court impose qualifications which lack “a rational con-
nection with the applicant’s fitness or capacity to
practice law.” (Citation. ]
Brown: Board of Bar Examiners, 623 F.2d 605, 609 (9th
Cir. 1980).
Even when constitutional challenges to bar admissions
practices have been raised, the tederal courts have been
reluctant to interfere. The constitutionality of bar ad-
missions practices is determined by the relatively lax
“rational relationship” test. Schware v. Board of Bar Ex-
aminers, 353 U.S. 232, 239 (1957); and see, Tyler v. Vick-
ery, 517 F.2d 1089, 1099 (Sth Cir. 1975), cert. dented, 426
U.S. 940 (1976); Chaney v. State Bar of California, 386
F.2d 962, 964 (9th Cir. 1967), cert. denied, 390 U.S. 1011
(1968). The lower federal courts will not entertain even
constitutional attacks on individual state bar admissions
decisions; constitutional infirmities in a state’s denial of
admission to an individual applicant may be redressed only
on a petition for writ of certiorari to this Court. Brown v.
Board of Bar Examiners, supra, 623 F.2d at 609-610; Doe
v. Pringle, 550 F.2d 596, 597-599 (10th Cir. 1976), cert. de-
nied, 431 U.S. 916 (1977). Nor have the lower federal courts
~)
permitted disappointed bar applicants to circumvent this
rule by pleading a civil rights action under 42 U.S.C.
41983. Doe v. Pringle, supra, 550 F.2d at 599.
The Court of Appeals’ decision in this action overturns
at a single stroke this long-established body of law which
ensures state control over bar admissions, The holding in
this case lets any disappointed bar applicant have a lower
federal court and jury review his failing grade.
It is immaterial that Ronwin has sued petitioners, the
bar examiners, rather than the Arizona Supreme Court.
Like the high courts of all American jurisdictions, the
Arizona Supreme Court now delegates to bar examiners
the technical aspects of testing, grading and screening bar
applicants. The Bar Examiners’ Handbook, 15-16 (S. Duhl
2d ed. 1980); F. Klein, S. Leleiko & J. Mavity, Bar Ad-
mission Rules and Student Practice Rules, 30-33 (197°,.
In Arizona, however, as in each of the other American
jurisdictions, the highest state court retains the ultimate
power and authority to grant or deny admission. Bar
examiners recommend; the high court decides. See, Feld-
man v. State Board of Law Examiners, 438 F.2d 699, 702
(8th Cir. 1971); Application of Levine, 97 Ariz. 88, 397
P.2d 205, 207 (1964); Ariz. Sup. Ct. Rule 28(a). A suit
against bar examiners who assist the state supreme courts
in the admissions process is the type of collateral attack
on individual admission decisions which the lower federal
courts have routinely rejected until now.
To subject the grading of bar examinations to federal
antitrust review imperils the entire existing system of bar
admissions. It will prevent the state supreme courts from
delegating the te-ting, grading and screening function to
8
senior lawyers who have been serving voluntarily as bar
examiners.
If this decision stands, the states’ authority over the ad-
missions process will yield to the overriding authority of
the federal courts. Jurors, not judges or bar examiners,
will have the last word on the fairness of bar examinations
and the grading of each applicant's papc:s. Disappointed
bar applicants are sure to seize the opportunity to prove
to a jury that their examiners were wrong. The federal
courts will, consequently, be clogged with new antitrust
actions after each state bar examination.
Federal antitrust scrutiny of state bar examination prac-
tices will destroy the highly developed and professional-
ized bar admissions process. It will seriously disrupt the
proper relationship between the state and federal courts.
At a time of widespread complaint that lawyers are in-
sufficiently prepared and qualified,’ the Court of Appeals’
decision in this case would deprive the state courts of their
best tool for assuring lawyer competence. This is excep-
tionally poor social policy. It is also wrong, since the Court
of Appeals’ opinion is based on a misreading of this Court’s
decisions on state action immunity from the federal anti-
trust laws and conflicts with the decisions of other courts
of appeal.
‘See, e.g., Burger, The Special Skills of Advocacy: Are Spe-
cialized Training and Certification of Advocates Essential to Our
System of Justice? 42 Fordham L.Rev. 227 (1973); Maddi, Trial
Advocacy Competence: The Judicial Perspective (1978) A.B.F.
Research J. 105; Final Report of the Committee to Consider Stand-
ards for Admission to Practice in the Federal Courts (1979), re-
printed at 83 F.R.D. 215.
9
2. Grading Bar Examinations Is Action By the State
Itself, Immune from the Antitrust Laws
a. The Midcal Test Does Not Apply to Action by
State Agencies
The Court of Appeals’ majority opinion reached the
wrong answer in this case in large part because it asked
the wrong question. The majority held that petitioners
could claim state action immunity from the antitrust laws
only by showing that “the challenged restraint [was]
clearly articulated and affirmatively expressed as state
policy and [that it was} actively supervised by the state
itself.” 686 F.2d at 696. This formula is a paraphrase of
the test restated and applied by this Court in California
Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445
U.S. 97, 105 (1980) (hereafter the “Midcal Test’).
The Court of Appeals made a basic error by applying
the Midcal Test to this case. That test is appropriatcly
used only in antitrust cases challenging acts by political
subdivisions below the state level, e.g., City of Lafayette,
La., v. Louisiana Power & Light Co., 435 U.S. 389 (1978) ;
Community Communications Co. v. City of Boulder, Colo.,
455 U.S. 40 (1982), or acts by private persons which have
been directed, passed upon, submitted to or regulated by a
state agency, ¢.g., Goldfarb v. Virginia State Bar, 421 U.S.
773 (1975); Cantor v. Detroit Edison Co., 428 U.S. 579
(1976); California Retail Liquor Dealers Ass'n v. Midcal
Aluminum, Inc., supra.
As the dissenting Circuit Judge pointed out, the Midcal
Test is not appropriately applied in antitrust cases chal-
lenging acts by state agencies or officials. 686 F.2d at 705-
10
706. In such cases, the court looks only to see whether the
“anticompetitive conduct [is] engaged in as an act of gov-
ernment by the State as sovereign ... pursuant to state
policy to displace competition with regulation.” City of
Lafayette, La., v. Louisiana Power & Light Co., supra, 435
U.S. at 413 (plurality opn.). “An adequate mandate for
state anticompetitive activity exists when it is found, from
authority given a [state] governmental entity to operate
in a particular area, that ‘the kind of action complained of’
was contemplated. [Citation.]” 686 F.2d at 705-706 (Fer-
guson, J., dissenting below).
This Court observed when it first established the state
action immunity that there was nothing in the language
or history of the Sherman Act to suggest that the Act was
intended “to restrain a state or its officers or agents from
activities directed by its legislature” and noted that “an
unexpressed purpose to nullify a state's control over its
officers and agents is not lightly to be attributed to Con-
gress.” Parker v. Brown, 317 U.S, 341, 350-351 (1943).
Since Parker, this Court has consistently drawn a dis-
tinction between state agencies’ acts and the acts of others.
Bates v. State Bar of Arizona, 433 U.S. 350 (1977) makes
this point clearly. Distinguishing Goldfarb v. Virginia
State Bar, 421 U.S. 773 (1975), this Court noted that the
minimum-fee schedule challenged in the latter case had
been published by a county bar association and was en-
forced by the state bar. 433 U.S. at 359. In Goldfarb, this
Court had concluded that “it cannot fairly be said that the
State of Virginia through its Supreme Court Rules re-
quired the anticompetitive activities of either respondent.”
il
421 U.S. at 790, quoted at 433 U.S. at 359. But Bates pre-
sented a quite different situation:
In the instant case, by contrast, the challenged re-
straint is the affirmative command of the Arizona Su-
preme Court under its Rules 27(a) and 29(a) and its
Disciplinary Rule 2-101(B). That court is the ultimate
body wielding the State’s power over the practice of
law [citations], and, thus, the restraint is “compelled
by direction of the State acting as a sovereign.” [ Cita-
tion. ]
433 U.S. at 359-360.
Bates also distinguished Cantor v, Detroit Edison Co.,
428 U.S. 579 (1976) on the same grounds:
[T]he context in which Cantor arose is critical... .
Cantor would have been an entirely different case if
the claim had been directed against a public official or
public agency, rather than against a private party.
Here, the appellants’ claims are against the State. The
Arizona Supreme Court is the real party in interest;
it adopted the rales, and it is the ultimate trier of fact
and law in the enforcement process. [Citation.] Al-
though the State Bar plays a part in the enforcement
of the rules, its role is completely defined by the court;
the appellee acts as the agent of the court under its
continuous supervision.
433 U.S. at 361; fn. omitted.
New Motor Vehicle Bd. v. Orrin W. For Co., 439 US.
96, 109 (1978) and Community Communications Co. v.
City of Boulder, Colo., supra, 455 U.S, 40 demonstrate the
same distinction. In Orrin W, Foz, private parties initiated
the restraint for their own benefit and the actor was a sub-
ordinate state agency. Its acts were immune because they
12
were taken under “a system of regulation, clearly articu-
lated and affirmatively expressed, designed to displace un-
fettered business freedom.” 439 U.S. at 109. In Community
Communications, by contrast, because the actor was not
the state but a municipality, it was not immune unless it
met the Midcal test. 455 US. at ...... , 102 S.Ct. 835, 842.
The lesson of these cases is that agencies and officials
of the state itself are clothed with full antitrust immunity
whenever they act pursuant to a state policy to displace
competition with regulation.
Subordinate political subdivisions and private parties
are differently placed in the federal system. They are not
themselves sovereign, and therefore obtain state action
immunity only when they meet both prongs of the Midcal
Test, showing that their acts were taken pursuant to a
clearly articulated and affirmatively expressed state policy
and were actively supervised by the state.
By imposing a Midcal Test requirement on petitioners,
the majority of the Court of Appeals committed a funda-
mental error, creating a conflict with the decisions of the
courts of appeals for several other circuits. Princeton Com-
munity Phone Book, Inc. v. Bate, 582 F.2d 706, 716-719
(3d Cir.), cert. denied, 439 U.S. 966 (1978); Foley v, Ala-
bama State Bar, 648 F.2d 355, 359 (Sth Cir. 1981); and
Feldman v. Gardner, 661 F.2d 1295, 1305-1306 (D.C.Cir.
1981), cert, denied, ...... U.S. ......, 102 S.Ct. 3483 (1982),
cert. granted on another issue sub. nom., District of Co-
lumbia Court of Appeals v. Feldman, ...... US. 6. ee
S.Ct. 3481 (1982), all hold on facts closely similar to those
in the instant case that the Widcal Test is not properly ap-
13
plied to action by the state itself.® As the Feldman decision
states:
[The] tests [developed in Parker and its progeny] re-
quire courts to ascertain whether there is a clear
articulation of state policy accompanied by active
supervision by the state. This inquiry becomes neces-
sary when an act by a subordinate government agency
is at stake, for it is well settled that not everything it
does is an act of the state as sovereign. There ob-
viously is no need for any investigation of that sort
when the action plainly is taken in a sovereign
capacity.
While activity of private parties prompted by pur-
ported state policies or pursuant to state regulatory
schemes, or even acts of subordinate governmental
agencies, are not always entitled to the shield of the
state’s antitrust exemption, acts of the state in its sov-
ereign character are invulnerable.
[Rje ulation by a state legislature of admission to the
state’s bar clearly would stand on an entirely different
footing, as does that activity when conducted by a
state court endowed with the “ultimate” authority to
do so. In either case, the regulatory act brings to bear
the sovereignty of the state, and immunity from fed-
eral antitrust liability attaches.
661 F.2d at 1305-1306; fns. omitted.
°See also, Euster v. Eagle Downs Racing Ass'n, 677 F.2d 992,
995-996 (3d Cir.) cert. denied, U.S. .. , 103 S.Ct. 388 (1982);
Benson v. Arizona State Bd. of Dental Examiners, 673 F.2d 272, 275-
276 (9th Cir. 1982); Areeda, Antitrust Immunity for “State Action”
After Lafayette, 95 Harv.L.Rev. 435, 438 n. 19, 445 n. 49 (1981).
14
b. As Members of the Arizona Supreme Court’s Com-
mittee on Examinations and Admissions, Petition-
ers Acted as State Officials
The grading practices which petitioners adopted in their
role as court-appointed members of the Arizona Supreme
Court’s Committee on Examinations and Admissions were
their acts as state officials, exercising the sovereign power
of the State of Arizona over admissions to its bar. They
were therefore not required to meet the Midcal Test to
qualify for state action immunity from the antitrust laws.
Arizona Supreme Court Rule 28(a) creates the Com-
mittee on Examinations and Admissions as an arm of that
court. Each of the committee’s members is appointed by
the Arizona Supreme Court. Rule 28(a) specifies that the
committee’s function is to examine applicants and recom-
mend to the supreme court for admission those applicants
the committee deems qualified.
In performing these functions, the committee assists the
Arizona Supreme Court in exercising its judicial power to
grant or deny admission to the Arizona bar. See, In re
Summers, 325 U.S. 561, 565, n. 6 (1945). Such a committee
acts as “an administrative aid to the court,” Feldman v,
State Board of Law Examiners, supra, 438 F.2d at 702,
and “perform[{s] a judicial function on behalf of the
feourt],” Richardson v. McFadden, 563 F.2d 1130, 1132
(4th Cir. 1977) (Hall, J., concurring), cert, denied, 435
U.S. 968 (1978); see Application of Levine, supra, 397
P.2d at 207.
Petitioners were thus acting as state officials, performing
an essential state function in grading the bar examination.
This fact leaves no room to apply the Midcal Test; peti-
15
tioners were entitled to state action immunity from the
antitrust laws.
c. EvenIf The Midcal Test Were Applied, Petitioners
Would Be Entitled To State Action Immunity
Assuming the Court of Appeals did not err in applying
the Midcal Test to this case, it erred in concluding the
petitioners had not met both aspects of the test.
According to the Court of Appeals, petitioners did not
meet the “clearly articulated and affirmatively expressed
state policy” prong of the Midcal Test.
Like the defendants in Goldfarb, the defendants here
have no statute or Supreme Court Rule to point to as
directly requiring the challenged grading procedure.
686 F.2d at 696; fn. omitted.
This reasoning is fallacious for several reasons. First,
under Arizona Supreme Court Rule 28(c)(VII)(B), the
committee was required to, and did, submit its proposed
formula for grading the bar examination to the supreme
court and to secure that court’s approval of the formula.
See 686 F.2d at 697. Second, unlike the defendants in
Goldfarb, petitioners were not acting as private indi-
viduals or organizations but as state officials, members
of the Arizona Supr-me Court's Committee on Examina-
tions and Admissions. While precision of regulation might
be required to confer state action immunity on private
individuals, such precision is not, and cannot be, required
of state officials. Professor Areeda has noted:
Immunity for decisions of subordinate agencies or
officials cannot depend on an explicit command from
the legislature; delegation of governmental powers
oe
16
necessarily includes the discretion to make decisions
not compelled by the legislature.
Areeda, supra n. 4, 95 Harv.L.Rev. at 445 n. 49.
If the committee is to serve its function of assisting the
Arizona Supreme Court, that court must be able to
delegate tasks and discretion to the committee without
thereby stripping committee members of their state action
immunity.
Third, the Court of Appeal’s opinion misconceives the
purpose of the “clearly articulated state policy” require-
ment. The purpose of that requirement is to assure that
the state has conscientiously considered and specifically
decided to “displace unfettered business freedom with
regulation” in a particular area of commerce. New Motor
Vehicle Bd. v. Orrin W. Fox Co., supra, 439 U.S. at 109.
The standard does not require the state to specify each
particular detail of the acts necessary to carry out its
regulatory scheme. It need only be shown that the chal-
lenged restraint is necessary to the successful operation
of the regulatory scheme the state has established, and that
the state has consciously determined to remove the area
from free competition. City of Lafayette, La., v. Louisiana
Power & Light Co., supra, 435 U.S. at 415.
The Arizona Supreme Court has plainly removed the
area of admission to practice law from “unfettered busi-
ness freedom.” Arizona Supreme Court Rule 28(a) shows
the court’s considered determination to regulate bar admis-
sions, in part through the committee. That is all that
Midcal’s first prong requires.
17
The Midcal Test also requires a showing of active super-
vision by the state itself. It is unclear why the Court of
Appeals thought petitioners had not met this requirement.
686 F.2d at 697.
Since the Committee on Examinations and Admissions
is a state agency, its own acts fulfilled the active state
supervision requirement. Moreover, each of its acts was
subject to active review by the Arizona Supreme Court.
Under Arizona Supreme Court Rule 28(c)(VII)(B), the
court reviewed and approved the committee's formula for
grading the bar examination. Under Rule 28(a), that court
reviewed and acted upon the committee's recommendations
to grant or deny admission to the bar.’ More active state
supervision is difficult to imagine.’
Thus, even under the inapplicable Midcal Test, petition-
ers were entitled to state action immunity.
"Arizona Supreme Court review is active. The court does not
rubberstamp the committee's recommendations, but carefully con-
siders them. The committee’s recommendations are not always ac-
cepted. See, e.g., Application of Klahr, 102 Ariz. 529, 433 P.2d 977
(1967); Application of Guberman, 90 Ariz. 27, 363 P.2d 617 (1961);
Application of Courtney, 83 Ariz. 231, 319 P.2d 991 (1957).
*Absurd results follow from use of the Midcal Test to analyze
the antitrust immunity of the state’s own agencies. A district court
has just sustained a post-Ronwin immunity claim of a state agency,
noting:
“To ask if the state controls and reviews the DOT is to
simply ask if the state exercises and governs over its own
actions.
°° * The tautology is complete. The DOT, as an agent and
instrumentality of the state, is controlled and reviewed con-
stantly by the state. Since the DOT accounts directly to the
state, and the state, is merely acting through its agent, who
performs and controls the action, this court can hardly imagine
18
3. The Noerr-Pennington Doctrine Immunizes Petition-
ers’ Recommendations Regarding Bar Admissions
The Court of Appeals’ decision reinstating Ronwin’s anti-
trust complaint is erroneous for an independent reason.
Petitioners’ acts are constitutionally privileged against
antitrust liability pursuant to the Noerr-Pennington
doctrine.*
Eastern Railroad Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127 (1961), United Mine Workers
v. Pennington, 381 U.S, 657 (1965) and succeeding cases
hold that in order to protect the freedom of association,
the right to petition government and other freedoms guar-
anteed by the Bill of Rights, bona fide efforts to obtain or
influence legislative, executive, judicial or administrative
actions must be immunized from antitrust liability. 365
U.S. at 137-138; 381 U.S. at 669-671; California Motor
Transport Co. v. Trucking Unlimited, 404 U.S, 508, 510-511,
513 (1972).
how the Midcal analysis could fail to be satisfied. * * * [I]n
such situations as the present case, the Midcal test is simply
not necessary to be made. But if made, as here done, it will
almost certainly be met.”
Deak-Pereira Hawaii, Inc. v. Department of Transportation, State
of Hawaii, No. 82-0334, F.Supp. , 44 A.T.R.R. p. 236
(D. Hawaii Jan. 3, 1983),
*The Noerr-Pennington issue was raised in the Court of Appeals
by two amicus curiae briefs filed by the National Conference of
Bar Examiners. It had not been raised in the district court and
was not considered by the Court of Appeals. However, the appli-
cability of Noerr-Pennington can be ascertained from the face of
the complaint and the Arizona Supreme Court's rules, and it there-
fore can properly be raised and considered by this Court as an
additional reason for affirming the district court's dismissal of the
complaint. Langnes v. Green, 282 U.S. 531, 536-539 (1931).
19
Petitioners’ acts as members of the Committee fell well
within the scope of this immunity.
Petitioners were not authorized to, and did not, take
final action on Ronwin’s application for admission to the
Arizona bar. Petitioners’ sole function was to administer
and grade the bar examinalion and recommend to the Ari-
zona Supreme Court whether that court should grant or
deny admission to applicants such as Ronwin. The Arizona
Supreme Court, and only that court, has the power to
grant or deny admission to the Arizona bar.”
Ronwin complains that for anticompetitive purposes
petitioners gave his test too low a grade and for that
reason recommended to the Arizona Supreme Court that
he be denied admission. Those acts—grading the bar exam-
ination and recommending that the supreme court take
Arizona Supreme Court Rule 28(a) provides:
The committee shall examine applicants and recommend to
this court for admission to practice applicants who are found
[qualified]... . The court will then consider the recommenda-
tions and either grant or deny admission.
The Arizona Supreme Court has repeatedly held that it is the
committee's responsibility to consider the evidence and recommend
to the court for admittance only those applicants who, in the
committee’s opinion, have satisfactorily established their qualifica-
tions. But “the ultimate responsibility for the admittance to the
practice of law lies in the members of the Court,” “using our
independent judgment, de novo [to] determine whether the neces-
sary qualifications have been shown.” Application of Levine, supra,
397 P.2d at 207; Application of Ronwin, supra, 555 P.2d at 316;
Application of Klahr, supra, 433 P.2d at 979.
20
specified action—could be nothing other than bona fide
efforts to obtain or influence judicial action."
Like the protesting dealers in New Motor Vehicle Bd. v.
Orrin W. Fox, Co., supra, 439 U.S. at 110, petitioners
merely invoked their right to governmental action in the
form of a determination by the Arizona Supreme Court to
grant or deny admission to particular applicants. The
Noerr-Pennington doctrine immunizes their acts from anti-
trust liability.
“Ronwin made no effort to plead that petitioners’ acts fell within
the “sham” exception to Noerr-Pennington, and could not do so.
Petitioners were, in fact, seeking to influence the Arizona Supreme
Court’s actions, and did not recommend his non-admittance to
obtain an anticompetitive advantage through any other means. Of
course, Ronwin’s allegation of anticompetitive purpose is insufficient
to place this case within the “sham” exception. Eastern Railroad
Presidents Conference v. Noerr Motor Freight, Inc., supra, 365
U.S. at 139-140; Clipper Exxpress v. Rocky Mountain Motor Tariff
Bureau, Inc., 674 F.2d 1252, 1264 (9th Cir. 1982), petition for
certiorari filed, 51 U.S. L.W. 3512 (U.S., Jan. 3, 1983, No. 82-1110).
CONCLUSION
For these reasons, a writ of certiorari should issue to
review the judgment of the United States Court of Appeals
for the Ninth Circuit.
Respectfully submitted,
('HarLes R. Hoover
111 West Monroe
Phoenix, Arizona 85003
(602) 262-5911
Petitioner in Propria Persona,
and Counsel of Record for
the Remaining Petitioners
Doww G. Kesster
JENNINGS, Stecuss & SaLMon
111 West Monroe
Phoenix, Arizona 85003
Of Counsel
March 2, 1983
(Appendices follow)
A-l
Appendix A
Edward RONWIN, Plaintiff-Appellant,
Vv.
STATE BAR OF ARIZONA, Carlock, George Read and
Wanda Myers, Robert D. and Judith Wolfinger, Harold
J. and Jane Doe Richmond, James L. and Jane Doe Kar-
man, Howard H. and Jane Doe Hoover, Charles R. and
Jane Doe, Defendants-Appellees.*®
No. 80-5004.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted April 16, 1981.
Decided Dee. 14, 1981.
As Amended on Rehearing Sept. 8, 1982.
Appeal from the United States District Court for the
District of Arizona.
Before FERGUSON and BOOCHEVER, Circuit Judges,
and HATTER,+ District Judge.
*( Petitioners’ footnote) The caption reflects a clerical error by
the Court of Appeals. In the District Court, Ronwin sued the
State Bar of Arizona; George Read Carlock and Wanda Carlock,
Husband and Wife; Robert D. Myers and Judith Myers, Husband
and Wife; Harold J. Wolfinger and Jane Doe Wolfinger, Hus-
band and Wife; James L. Richmond and Jane Doe Richmond,
Husband and Wife; D. Thompson Slutes and Jane Doe Slutes,
Husband and Wife; Howard H. Karman and Jane Doe Kar-
man, Husband and Wife; and Charles R. Hoover and Jane Doe
Hoover, Husband and Wife, all of whom except the Slutes (who
had not been served) were appellees in the Court of Appeals.
+The Honorable Terry J. Hatter, Jr., United States District Judge
for the Central District of California, sitting by designation.
A-2
HATTER, District Judge:
Ronwin sued the Arizona State Bar (“Bar”) and the
individual members (and their spouses) of the Committee
on Examinations and Admissions of the Arizona Supreme
Court (“Committee”), alleging that they had violated fed-
eral antitrust laws in grading the 1974 Arizona bar exami-
nation that Ronwin failed. The district court denied
Ronwin’s motion for recusal and dismissed the action for
failure to state a claim, lack of jurisdiction, and lack of
standing. We affirm the denial of the recusal motion, but
reverse the dismissal decision as to the individual commit-
tee members' and remand for further proceedings.
I
FACTS
Ronwin took the Arizona bar examination in February,
1974. He was notified two months later that he had failed
the examination. The Arizona Supreme Court refused to
review his exam, and the United States Supreme Court
denied certiorari. See Ronwin v. Committee on Examina-
tion and Admissions, 419 U.S. 967, 95 S.Ct. 231, 42 L.Ed.2d
183 (1974).?
tAlthough the Committee is appointed by the Arizona Supreme
Court from a list of nominees chosen by the Bar’s Board of Gov-
ernors, it is not, as such, a committee of the State Bar. Because no
specific allegations of wrongdoing have been made against the
Bar, the dismissal for failure to state a claim was proper as to the
Bar. For the same reason, we affirm the dismissal as to the spouses
of the individual committee members.
*Ronwin applied to retake the bar examination in July, 1974, but
was denied permission because the Committee declined to certify
that he was “mentally and physically able to engage in active and
continuous practice of law.” See Ariz.Sup.Ct.R. 28(c) ( IV)(5). A
special committee conducted a formal hearing regarding the alle-
A-3
Ronwin filed this antitrust action in March, 1978, alleg-
ing that defendants violated section 1 of the Sherman Act,
15 U.S.C. 41, by illegally restricting competition among
attorneys practicing in Arizona. The essence of Ronwin’s
complaint is that the Committee graded the exam to admit
a predetermined number of persons, without reference to
“achievement by each bar applicant of a pre-set standard
[of competence].” For purposes of their motion to dismiss,
defendants did not challenge the accuracy of Ronwin’s
allegations.’
At the time Ronwin took the bar exam, the Committee
was authorized to determine whether bar applicants pos-
sessed the “necessary qualifications and... fulfillled] the
requirements prescribed by the [Bar] board of governors
as approved by [the Arizona Supreme Court]... .” Ariz.
Sup.Ct. Rule 28(a)(1973) (amended in 1975 to create two
separate committees). The Committee consists of seven
active members of the State Bar who, upon the recom-
mendation of the Bar’s Board of Governors, are appointed
by the Arizona Supreme Court. Jd. As Ronwin noted in
paragraph II of his complaint, the State Bar is a private
gations of mental unfitness under Ariz.Sup.Ct.R. 28(c)(XII)(D).
After holding a hearing, this special committee declined to find
Ronwin mentally fit to practice law. The finding of unfitness was
affirmed by the Arizona Supreme Court. Application of Ronwin,
113 Ariz. 357, 555 P.2d 315 (1976), cert. denied, 430 U.S. 907, 97
S.Ct. 1178, 51 L.Ed.2d 583 (1977).
*On remand, however, it may be necessary to determine the man-
ner in which the 1974 examination was graded. Specifically, the
court should determine whether the examination was graded as
Ronwin alleges, or was graded on a different basis, such as a
“scaled” formula, designed to equalize the difficulty of the exam
over various years with the pass-fail determination being based on
individual merit rather than numerical quota.
A-4
entity to which all Arizona lawyers belong, and the indi-
vidual defendants were members of “the Committee .. .
and, as such, presided over and conducted the process
by which applicants for membership in [the] Bar were
”
examined... .
II
DISMISSAL OF RONWIN’S ACTION
The district court gave three reasons for dismissing
the action: (1) the complaint failed to state a claim upon
which relief could be granted; (2) the court lacked juris-
diction over the subject matter; and (3) Ronwin lacked
standing to seek the relief requested. These reasons will be
discussed seriatim.
A. Failure to State a Claim—State-Action Immunity
The district court’s ruling that Ronwin had failed to
state a claim was apparently based on its acceptance of
defendants’ argument that bar grading procedures are
immune from federal] antitrust laws. Relying primarily on
Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691,
53 L.Ed.2d 810 (1977), the defendants argue that, even
assuming, arguendo, the grading formula was anticompet-
itive, the Committee’s status as a state agent renders its
actions absolutely immune from antitrust liability. We
disagree.
In Bates, the Supreme Court held that a disciplinary
rule adopted by the Arizona Supreme Court and enforced
by the Arizona state bar, which prohibited lawyers from
advertising, did not violate the federal antitrust laws under
the state-action exemption first announced in Parker v.
Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943).
A-)
433 U.S. at 359-61, 97 S.Ct. at 2696-97. The Court stressed
that the real party in interest was the Arizona Supreme
Court because it had adopted the challenged restraint.
Because the challenged restraint had been specifically
adopted by the state acting, through the State Supreme
Court. as sovereign, it therefore reflected a clear and affir-
mative articulation of state policy. Id. at 361-62, 97 S.Ct.
at 2697-98. In the present case, by contrast, the challenged
restraint was not adopted or directly authorized by the
Arizona Supreme Court.
In a more analogous case, the Supreme Court held that
the activities of a county and a state bar association in
publishing and enforcing a minimum-fee schedule were not
shielded by the state-action exemption. Goldfarb v. Vir-
ginia State Bar, 421 U.S. 773, 788-92, 95 S.Ct. 2004, 2013-15,
44 L.Ed.2d 572 (1975). The Court stated:
The threshold inquiry in determining if an anticom-
petitive activity is state action of the type the Sherman
act was not meant to proscribe is whether the activity
is required by the State acting as sovereign. Parker
». Brown, 317 U.S. at 350-352 [63 S.Ct. at 313-14] ;
Continental Co. v. Union Carbide, 370 U.S. 690, 706-07
(82 S.Ct. 1404, 1414-15, 8 L.Ed.2d 777] (1962). Here
we need not inquire further into the state-action ques-
tion because it cannot fairly be said that the State of
Virginia through its Supreme Court Rules required
the anticompetitive activities of either respondent.
Respondents have pointed to no Virginia statute re-
quiring their activities; state law simply does not refer
to fees, leaving regulation of the profession to the
Virginia Supreme Court; although the Supreme
Court’s ethical codes mention advisory fee schedules
they do not direct either respondent to supply them, or
A-6
require the type of price floor which arose from re-
spondents’ activities. ... It is not enough that, as the
County Bar puts it, anticompetitive conduct is
“prompted” by state action; rather, anticompetitive
activities must be compelled by direction of the State
acting as a sovereign.
Id. at 790-91, 95 S.Ct. at 2014-15.
Subsequent Supreme Court decisions underscore the
distinction between Bates and Goldfarb. The Court has
repeatedly emphasized in these more recent decisions that
for the state-action exemption to apply the challenged
restraint must be clearly articulated and affirmatively ex-
pressed as state policy and be actively supervised by the
state itself. See, e.g., City of Lafayette v. Louisiana Power
@ Light Co., 435 U.S. 389, 410-13, 98 S.Ct. 1123, 1135-36,
55 L.Ed.2d 364 (1978); New Motor Vehicle Board of Cali-
fornia v. Orrin W. For Co., 439 U.S, 96, 109, 99 S.Ct. 403,
411, 58 L.Ed.2d 361 (1978) ; California Retail Liquor Deal-
ers Association v. Midcal Aluminum, Inc., 445 U.S. 97, 105,
100 S.Ct. 937, 943, 63 L.Ed.2d 233 (1980); Community
Communications Co. v. City of Boulder, ...... Wat dod
silanes. aden specced , 102 S.Ct. 835, 839-41, 70 L.Ed.2d 810
(1982). The failure to meet either requirement precludes
application of the antitrust immunity. Midcal, 445 US. at
105, 100 S.Ct. at 943.
Viewing the present case at this stage of the proceedings
in light of the Court’s state-action requirements, we con-
clude that the challenged grading procedure fails to qualify
for antitrust immunity. It has not been established that
the alleged restraint was “clearly articulated and affirma-
tively expressed as state policy,” Midcal’s first require-
A-7
ment. 7d. Like the defendants in Goldfarb, the defendants
here have no statute or Supreme Court Rule to point to as
directly requiring the challenged grading procedure.* See
421 U.S. at 790-91, 95 S.Ct. at 2014-15.
The fact that the Arizona Supreme Court has delegated
to the Committee the general authority to examine appli-
cants to determine if they are qualified to practice law and
reviews the Committee’s recommendations regarding ad-
mission does not alone clothe the Committee’s unilateral
grading policies with blanket immunity from the antitrust
laws. “The national policy in favor of competition cannot
be thwarted by casting such a gauzy cloak of state involve-
ment” over actions of the Committee that were not affir-
matively expressed as state policy by the Arizona court.
Midcal, 445 U.S. at 106, 100 S.Ci. at 943. As the Court
emphasized in Goldfarb, “[i]t is not enough that, as the
... Bar puts it, anticompetitive conduct is ‘prompted’ by
state action; rather, anticompetitive activities must be com-
pelled by direction of the State acting as a sovereign.” 421
U.S. at 791, 95 S.Ct. at 2015. Accord, Phonetele, Inc. v.
American Telephone and Telegraph Co., 664 F.2d 716, 736
(9th Cir. 1981).
The fact that the Committee was established by Supreme
Court Rule and composed of members selected from the
Bar by the Arizona Supreme Court is not, as defendants
‘The challenged policies in Benson v. Arizona State Board of
Dental Examiners, 673 F.2d 272, 275-76 (9th Cir. 1982) (as
amended), in contrast to this case, were explicitly mandated by
statute.
A-8
assert, dispositive in itself of the state-action question.”
Although the defendants in the United States Supreme
Court’s state-action decisions were public bodies, or sub-
divisions of the state, that did not end the Court’s analysis.
The Court still looked to see whether the challenged
restraints were clearly articulated and affirmatively ex-
pressed as state policy and were actively supervised by
the state acting as sovereign. Thus, for instance, it was
not dispositive that the restraints challenged in Parker,
Orrin W. Fox, and Midcal were enforced, respectively, by a
state commission, a state board, and a state department.
317 US. at 344, 63 S.Ct. at 310; 439 U.S. at 103, 99 S.Ct. at
408: 445 U.S. at 100, 100 S.Ct. at 940. In City of Lafayette,
435 U.S. at 408, 98 S.Ct. at 1134, a plurality of the Court
expressly rejected the argument that the state-action ex-
emption extends to “all governmental entities, whether
state agencies or subdivisions of a State ... simply by rea-
son of their status as such.” This position has since been
adopted by a majority of the Court. See City of Boulder,
Gos USS. at......, 102 S.Ct. at 842.
The question remains whether the challenged restraint
allegedly fashioned by the Committee was sufficient] “ur-
ticulated” and “supervised” by the Arizona Supreme Court.
Standing alone, the fact that the court established the
Comimittee and selected its members does not affect the
*As in City of Boulder and City of Lafayette, “[t]his case’s pre-
liminary posture makes it unnecessary for us to consider other
issues regarding the applicability of the antitrust laws in the con-
text of suits by private litigants against government defendants . . .
[or to] confront the issue of remedies appropriate against [public]
officials.” City of Boulder, ... U.S. at. . . n.20, 102 S.Ct. at 543
n.20. Accord, City of Lafayette, 435 U.S. at 401-02, 98 S.Ct. at
1130-31.
A-9
reasoning underlying our conclusion that the challenged
grading procedure was not clearly articulated and affir-
matively expressed as state policy, Midcal's first require-
ment.
Effective January 15, 1974, 45 days before the exami-
nation Ronwin failed, the Arizona Supreme Court adopted
Rule 28(c¢)(VII)(B) which requires the Committee to file
its proposed grading formula with the Supreme Court at
least 30 days before each examination. This review proce-
dure was not brought to the attention of the district court
either in the pleadings or in the papers pertaining to the
motion to dismiss; nor did the parties mention it in their
briefs or arguments to this court.
Defendants contend for the first time on rehearing that
the Committee’s grading formula “was submitted to the
Court, reviewed by the Court, and accepted by the Court.”
In response, Ronwin has tendered to this court what pur-
ports to be the letter the Committee filed with the Supreme
Court on February 8, 1974 pursuant to Rule 28(¢) (VII)
(B). If, as Ronwin alleges, the Committee scored the
examination to admit a pre-determined number of appli-
cants, the letter does not so advise the court. Accordingly,
if the letter presented to us constitutes the submission to
the Supreme Court, it cannot be the basis for a clearly
articulated and affirmatively expressed state policy. Al-
though dismissal might have been proper if the facts were
as defendants now argue for the first time on rehearing,
those facts were never brought to the district court’s
attention. Dismissal was therefore improper on the basis
of the information before the district court.
A-10
Our resolution of the state-action issue is not incon-
sistent with this court's prior decisions in Hackin v, Lock-
wood, 361 F.2d 499 (9th Cir. 1966) ; Chaney v. State Bar of
California, 386 F.2d 962 (9th Cir. 1967), cert. denied, 390
U.S. 1011, 88 S.Ct. 1262, 20 L.Ed.2d 162 (1968); and Brown
v. Board of Bar Examiners, 623 F.2d 605 (9th Cir. 1980).
Those decisions do not support the contention that bar
grading procedures are always shielded by state-action
immunity, that such procedures may be challenged only on
constitutional grounds, or that the Arizona Supreme Court
was the proper defendant in this case. Those cases did not
involve antitrust challenges to bar grading procedures.
The plaintiffs in all three cases based their claims on al-
leged violations of their individual constitutional rights.°
‘The statement in Brown that “the only constraints on the states’
exclusive jurisdiction [over bar admission matters] are constitu-
tional in nature... ,” 623 F.2d at 609, refers to § 1343 actions like
those at issue in Brown, Hackin, and Chaney because, as the
Brown court notes in the very next sentence: “federal courts are
granted jurisdiction under 28 U.S.C. § 1343 to vindicate [only] con-
stitutiona! rights.” This jurisdictional limitation stems from the ex-
press language of § 1343, not from the fact that the plaintiff was
challenging a bar admission policy. One need look no farther than
Goldfarb, where the Court held that the minimum-fee schedule
enforced by the state bar violated § 1 of the Sherman Act, to see
that Ronwin’s complaint established subject-matter jurisdiction
under federal antitrust laws.
Similarly, a careful reading of the three decisions reveals that
they do not hold that a state supreme court is the only proper
defendant in challenges to bar grading procedures. As the court
explained in Brown, the state supreme court is the proper party
when it has promulgated the specific challenged rule. 623 F.2d at
608 n.6.
In Hackin, as the Brown court noted, the court emphasized that
the admission rule at issue, barring graduates of unaccredited law
schools from taking the bar exam, was directly promulgated and
enforced by the state supreme court. 361 F.2d at 500-01. In Chaney,
A-ll
The national policy in favor of competition, Widcal, 445
U.S. at 106, 100 S.Ct. at 948, should not be thwarted absent
a clear articulation by the Arizona Supreme Court that it
had adopted the alleged grading policy. Absent such a dec-
laration, Ronwin should not have been denied the oppor-
tunity to prove that the grading policy was designed to
limit competition among Arizona attorneys, as opposed to
being designed to ensure that attorneys had the necessary
qualifications. Thus, Ronwin's action should not have been
dismissed on the ground that the defendants enjoy absolute
state-action immunity.
B. Subject Matter Jurisdiction—Intersiate Commerce
The Sherman Act’s requirement of interstate commerce,
15 U.S.C. § 1, is jurisdictional. See Western Waste Service
Systems v. Universal Waste Control, 616 F.2d 1094, 1097
(9th Cir.), cert. denied, 449 U.S. 869, 101 S.Ct. 205, 66 L.
Ed.2d 88 (1980); see generally McLain v. Real Estate
Board, 444 U.S. 232, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980).
The district court evidently found that the alleged restraint
did not affect interstate commerce so as to invoke juris-
diction under the Sherman Act. Defendants contend that
the jurisdictional requirement of the Sherman Act was
not satisfied by Ronwin’s complaint because bar admission
is a purely local matter. Ronwin responds that the services
the court’s discussion clearly concerns finality and the nature of the
plaintiff's claim, and has no relevance to the issues of state action or
proper parties. See 386 F.2d at 966-67. It should also be noted that
the Chaney court discusses the plaintiff's restraint of trade conten-
tion (similar to Ronwin’s claim) at length, and rejects it on factual
rather than jurisdictional grounds. Id. at 965. Thus, these decisions
offer no support for the contention that there is a blanket rule mak-
ing state supreme courts the only proper defendants in all bar
admissions cases.
A-12
of Arizona lawyers are required by people living outside
Arizona. The price paid by these out-of-state clients for
legal services performed by Arizona lawyers is, according
to Ronwin, higher than it would be if the number of Ari-
zona lawyers had not been artificially restricted.
In order to establish jurisdiction under the antitrust
laws, a plaintiff must establish that the defendant's activity
either (1) is itself in commerce or (2) “has an effect on
some other appreciable activity demonstrably in interstate
commerce.” McLain, 444 U.S. at 242, 100 S.Ct. at 509 (em-
phasis added). Because of the past confusion surrounding
these tests, we will consider Ronwin’s allegations of inter-
state commerce under both the “in commerce” and the
“effect on commerce” tests. See Bain v. Henderson, 621
F.2d 959, 960 n.1 (9th Cir. 1980).
(1) The “in commerce” test: The most applicable Su-
preme Court decision applying the “in commerce” test is
Goldfarb v. Virginia State Bar, 421 U.S. at 783-86, 95 S.Ct.
at 2011-12. In Goldfarb, plaintiffs alleged that the Virginia
State Bar was fixing the prices charged by lawyers han-
dling real estate transactions. In upholding jurisdiction,
the Court noted that the real estate transactions that
require legal services are frequently interstate trans-
actions. 421 U.S. at 783-84, 95 S.Ct. at 2011-12. The Court
reasoned that any restraint on those services therefore
had a substantial effect on interstate commerce. Jd. at 785,
95 S.Ct. at 2012.
Ronwin did not specifically plead which interstate trans-
actions require legal services. See Bain, 621 F.2d at 961.
Nor did he indicate how substantial an effect on interstate
commerce results from restricting the number of lawyers
A-13
practicing in Arizona. It is not inconceivable, however, that
he could establish that legal services constitute an indis-
pensable and inseparable component of certain interstate
transactions. Therefore, the district court erred in dis-
missing the complaint for that reason at this stage of the
proceedings. See McLain, 444 U.S. at 246, 100 S.Ct. at 511
(a complaint should not be dismissed unless it appears
beyond doubt that the plaintiff can prove no set of facts
that would entitle him to relief).
(2) The “effect on commerce” test: In McLain, plaintiffs
charged that various New Orleans-based real estate bro-
kers were engaged in a price-fixing conspiracy. The Court
held that plaintiffs had alleged facts sufficient to show that
defendants’ conduct affected interstate commerce.’ McLain,
444 U.S. at 245, 100 S.Ct. at 510. Specifically, the Court
noted indications in the record that: (1) “an appreciable
amount of commerce [was] involved in the financing of
residential property in the Greater New Orleans area”
and the commerce involved various interstate institutions,
id. at 245, 100 S.Ct. at 510; and (2) the activities of the real
estate brokers, by affecting the terms and frequency of
local real estate transactions, could have a “not insubstan-
tial effect on interstate commerce.” Jd. at 246, 100 S.Ct. at
511.
Ronwin did not allege either that there are an appre-
ciable number of interstate transactions taking place in
Arizona that require legal services or that limiting the
"The Court specifically stated that a party need only show that
a defendant's general business, as opposed to the alleged illegal
conduct, affected interstate commerce in order to meet the juris-
dictional requirement. McLain, 444 U.S. at 242, 100 S.Ct. at 509.
A-l4
number of lawyers has a not insubstantial effect on the
number or size of these transactions. However, as is also
true under the “in commerce” test, it is not inconceivable
that Ronwin could establish jurisdiction under the “effect
on commerce” test. See, e.g., McLain, 444 U.S. at 245-47,
100 S.Ct. at 510-11; Western Waste Service, 616 F.2d at
1097-99, Therefore, on remand, the district court should
give Ronwin the opportunity to prove that his complaint
meets the jurisdictional requirements under either of these
tests.
C. Standing
In order to have standing to maintain a private anti-
trust action, a party must allege injury to the party’s
business or property occurring by reason of the alleged
antitrust violation. 15 U.S.C. 415; Solinger v. A€M
Records, Inc., 586 F.2d 1304, 1309 (9th Cir. 1978), cert.
denied, 441 U.S. 908, 99 S.Ct. 1999, 60 L.Ed.2d 377 (1979).
Defendants contend that even if they committed an anti-
trust violatiua, the violation did not cause Ronwin injury
because he was subsequently found mentally unfit to engage
in the practice of law. Thus, according to defendants, even
if Ronwin had passed the exam, he would not have been
admitted to practice in Arizona.
The flaw in the defendants’ argument is that Ronwin was
not found mentally unfit to practice law by the Arizona
Supreme Court until July of 1976, twenty-seven months
after Ronwin’s exam results were released.’ If Ronwin had
*Although the Committee on Examinations and Admissions de-
clined to certify that Ronwin was “mentally fit” to practice law
when he applied to retake the bar exam in July, 1974, and the spe-
cial committee appointed by the Arizona Supreme Court upheld
A-15
passed the exam, he arguably would have been able to
practice law until he was found, by final decision, to be
ment lly unfit. Because defendants’ alleged illegal restraint
precluded Ronwin from practicing law in Arizona for
an appreciable period of time, Ronwin has sufficiently al-
leged that he was injured by reason of an unlawful prac-
tice. See Kapp v. National Foothall Leaque, 586 F.2d 644,
648 (9th Cir. 1978), cert. denied, 441 U.S. 907, 99 S.Ct. 1996,
60 L.Ed.2d 375 (1979). Cf. Solinger, 586 F.2d at 1311 (pro-
spective purchaser of company has standing to sue com-
panies that allegedly foreclosed his ability to enter mar-
ket). Although his allegations of damages suffice to confer
standing, Ronwin will still have to prove that defendants’
actions caused him actual damages in order to recover.®
that determination on January 21, 1975, it was not until July, 1976
that the Arizona Supreme Court affirmed the finding. Application
of Ronwin, 113 Ariz. 357, 555 P.2d 315 (1976), cert. denied, 430
U.S. 907, 97 S.Ct. 1178, 51 L.Ed.2d 583 (1977). Defendants do not
contend either that Ronwin would have been denied admission in
1974 because of his alleged unfitness to practice had he passed the
exam or that he would not have been allowed to practice law
pending the Arizona court's decision on the matter. It wou!d be
inappropriate for this court to speculate on the matter.
*Assuming that Ronwin is able to clear the various hurdles still
before him, it may be necessary to determine whether he would
have passed the bar examination if graded on a proper basis. If
the 1974 bar exam may still be impartially regraded to ascertain
whether Ronwin would have received a passing grade, but for the
alleged improper method of restricting bar admission, the district
court may so order and supervise such a procedure for the sole
purpose of determining whether Ronwin has been damaged. If
the court decides that such a remedy is no longer feasible under
the circumstances of this case, it would be justified in presuming
that he would have passed for the purpose of ascertaining dam-
ages, if any. The amount of damages would be limited to Ronwin’s
loss of earnings, between April, 1974 when he would heve been
admitted to the Bar, and July, 1976, when the Arizona Supreme
A-16
Ill
THE RECUSAL QUESTION
Ronwin appeals the denial of his recusal motion. The
district judge was also presiding at that time over other
actions in which Ronwin was a party. Ronwin set forth, in
various affidavits and motions, facts which he contends
indicated that the judge was biased and prejudiced against
him. He contends that the judge was therefore required to
recuse himself pursuant to 28 U.S.C. $4 144 and 455.”
The test for disqualification is the same under sections
144 and 455(b)(1). United States v. Sibla, 624 F.2d 864,
Court found him unfit to practice law. See Murphy Tugboat Co.
v. Crowley, 658 F.2d 1256, 1260 (9th Cir. 1981) (special solicitude
for proof of damages when defendant's conduct has been a factor
in speculative nature of damages), cert. denied, US. ..., 18
S.Ct. 1713, 72 L.Ed.2d 135 (1982).
28 U.S.C. § 144 provides:
Whenever a party to any proceeding in a district court
makes and files a timely and sufficient affidavit that the judge
before whom the matter is pending has a personal bias or
prejudice either against him or in favor of any adverse party,
such judge shall proceed no further therein, but another judge
shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the
belief that bias or prejudice exists, and shall be filed not less
than ten days before the beginning of the term at which the
proceeding is to be heard, or good cause shall be shown for
failure to file it within such time. A party may file only one
such affidavit in any case. It shall be accompanied by a cer-
tificate of counsel of record stating that it is made in good
faith.
Under this section, the district judge must accept the truth of
the factual assertions in the affidavit and determine only whether
the affidavit is legally sufficient. See United States v. Azhocar, 581
F.2d 735, 739 (9th Cir. 1978), cert. denied, 440 U.S. 907, 99 S.Ct.
1213, 59 L.Ed.2d 454 (1979).
A-17
867 (9th Cir. 1980). That test is whether “a reasonable
person with knowledge of all the facts would conclude that
the judge’s impartiality might reasonably be questioned.”
United States v. Winston, 613 F.2d 221, 222 (9th Cir. 1980).
In evaluating a judge’s impartiality, the bias or prejudice
“must stem from an extrajudicial source.” Azhocar, 581
F.2d at 739 (emphasis in original). We review the denial
of a recusal motion for abuse of discretion. Sibla, 624 F.2d
at 868-69,
Ronwin’s specifie allegations of bias or prejudice involve
judicial acts which the district judge either performed or
failed to perform while presiding over the other actions
in which Ronwin was a party. None of these actions in-
volved extra-judicial acts which would indicate, on their
face, prejudice or bias. Adverse rulings by themselves do
not constitute the requisite bias or prejudice. Azhocar, 581
F.2d at 738-39. Ronwin also contends that the judge was
prejudiced against him because the judge was a defendant
in an action brought by Ronwin. However, “[a] judge is
not disqualified merely because a litigant sues or threatens
to sue him.” United States v. Grismore, 564 F.2d 929, 933
(10th Cir, 1977), cert. denied, 435 U.S. 954, 98 S.Ct. 1586,
55 L.d.2d 806 (1978). Such an easy method for obtaining
disqualification should not be encouraged or allowed.
28 U.S.C. § 455 provides, in part, that:
(a) Any justice, judge, or magistrate of the United States
shall disqualify himself in any proceeding in which his im-
partiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circum-
stances:
(1) Where he has a personal bias or prejudice concerning
a party....
A-18
Finally, Ronwin contends that the judge's alleged par-
ticipation in ex parte communications with defense counsel
indicated the judge’s prejudice. Although a judge is gen-
erally required to accept the truth of the factual assertions
in an Affidavit of Bias filed pursuant to 28 U.S.C. 4 144,
Azhocar, 581 F.2d at 739, Ronwin’s allegation of ex parte
communications relates to facts that were peculiarly within
the judge’s knowledge."* Given the judge’s emphatic denial
of Ronwin’s allegations, and Ronwin’s failure to show
how such alleged communications indicated the judge’s
prejudice, the judge did not abuse his discretion by deny-
ing Ronwin’s motion.
Iv
CONCLUSION
We conclude that the district court did not abuse its
discretion in denying the motion for recusal. We also con-
clude, however, that the court erred in dismissing the
action as to the individual Committee members, and
remand for further proceedings consistent with this
opinion.”
AFFIRMED in part; REVERSED in part, and
REMANDED.
“Ronwin’s allegation of ex parte communication between the
judge and defense counsel was based on the fact that the counsel,
in setting a hearing date on defendants’ motion to dismiss, knew
when the judge would be in Phoenix. According to Ronwin, coun-
sel could only have obtained that knowledge through ex parte com-
munications with the judge. Counsel explained, however, that he
knew the judge would be in Phoenix on the day he suggested for
a hearing because he had received an order from the court in an-
other case assigned to the judge setting the same daic for a hear-
ing in the other case.
“We note that many of the remaining issues may be suitable for
resolution by means of summary judgment.
A-19
FERGUSON, Circuit Judge, dissenting:
It is now the law in this circuit that a person who has
been judicially determined to be mentally unable to engage
in the practice of law in the State of Arizona may still
maintain a $1,200,000 damage action under the federal
antitrust laws against the Committee on Examinations
and Admissions of the Arizona Supreme Court and the
Committee's members’ for failure to give him a passing
grade on the state bar examination!
Precedents in this circuit and the Supreme Court man-
date that when the grading procedures of the board of bar
examiners are challenged, such a challenge must be brought
against the state supreme court as defendant. Moreover,
‘The majority has dismissed spouses of the committee members
for the perplexing reason that no specific allegations of wrongdoing
have been made against the spouses. Maj. op., note 1, ante. How-
ever, in Arizona plaintiffs join spouses as defendants to reach their
community property, not because the spouses are wrongdoers.
A.R.S. § 25-215 requires that a cause of action based upon a com-
munity obligation be brought against both husband and wife. Eng
v, Stein, 123 Ariz. 343, 599 P.2d 796 (1979). A community obliga-
tion is incurred when, for example, a husband's tort is committed
in furtherance of the community's interest. Howe v. Haught, 11
Ariz.App. 98, 462 P.2d 395 (1969). In fact, plaintiff pleaded, “The
male Defendants all acted on their own behalves and on behalf of
their respective marital communities.” Whether defendants actually
acted on behalf of their marital communities is a question that the
district court did not address and that the majority does not ad-
dress. Since the case is remanded, resolution of this material issue
should have been left to the district court. That plaintiff did not
specifically allege that defendants’ spouses are wrongdoers is
wholly immaterial.
The majority's expansive interpretation of antitrust law con-
trasts nicely with its restrictive view of plaintiff's remedies. The
effect of dismissing defendants’ spouses from the action is that now
plaintiff may recover only from the separate property of defend-
ants. See Eng v. Stein, supra, 123 Ariz. at 346, 599 P.2d at 799.
A-20
because the action of the state supreme court is state
action within the Parker exception, that action is immune
to an antitrust attack. Further, the impact of the actions
alleged by plaintiff are insubstantial and thus outside the
antitrust laws. Consequently, I dissent from the majority's
conclusion that the antitrust laws apply to this bar exam-
ination matter.
I. CHALLENGE TO DENIAL OF BAR ADMISSION.
A. Proper Defendant
A state's discretion over rules for admission to legal
practice is vested in the judiciary, or the legislature.
Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct.
752, 1 L.Ed.2d 796 (1957). In Hackin v. Lockwood, 361 F.2d
499 (9th Cir.), cert. denied, 385 U.S. 960, 87 S.Ct. 396, 17
L.Ed.2d 305 (1966), we held that the power to grant or
deny admission to the bar is vested in the Arizona Supreme
Court. Hence, the State Committee on Examinations and
Admissions was not a proper defendant because it was
merely a committee of the Arizona Supreme Court with
powers delegated by the court. 7d. at 500.
In Hackin, plaintiff, the graduate of an unaccredited law
school, could not take the bar because a state bar rule
allowed only graduates of accredited law schools to take
the bar. Plaintiff sued the justices of the Arizona Supreme
Court, the State Bar of Arizona, and the Committee on
Examinations ana Admissiozs. In holding that the state
bar and the Committee on Examinations and Admissions
were improper defendants, the court explained:
The State Bar of Arizona is not an appropriate
party to the suit because it cannot promalgate or
A-21
change the rules governing admission to practice in
Arizona. Its Board of Governors can suggest rules to
the Arizona Supreme Court, and can enforce them, but
only with the approval of the Arizona Supreme Court.
In the original complaint, but not in the amended
complaint, appellant names as a defendant the “Com-
mittee on Examinations and Admissions,” presumably
of the State Bar. This is not a committee of the State
Bar, but a committee named by the Supreme Court of
Arizona, made up of members of the Arizona State
Bar, Rule 28(a). Thus we find the power to grant or
deny admission is vested solely in the Arizona Su-
preme Court....
361 F.2d at 499 (9th Cir. 1966).
Considering a similar admissions procedure, the court
reiterated this conclusion in Chaney v. State Bar of Cali-
fornia, 386 F.2d 962 (9th Cir, 1967), cert. denied, 390 U.S.
1011, 88 S.Ct. 1262, 20 L.Ed.2d 162 (1968). In that case,
we held that the refusal of the State Bar Committee to
certify an applicant was not a terminative step in the
admissions process. Because final decision is vested in the
state supreme court, the committee’s decision not to admit
had no “fixative” status until the court approved or re-
jected the Committee's recommendation. Jd. at 966. Once
a decision is final, the supreme court is the proper de-
fendant when a party complains about examination pro-
cedures. Thus, the Committee cannot be a party because it
is merely an arm of the state supreme court “for the
purposes of assisting in matters of admission . . .,” which
matters remain ultimately in the court. 7d. If the plaintiff
is deprived of a right, it is the state supreme court, not the
“-?
A-22
Committee on Examinations and Admissions, that is the
source of the deprivation.
These decisions were reaffirmed in Brown v. Board of
Bar Examiners, 623 F.2d 605 (9th Cir. 1980). The Bar
Examiners of Nevada were found to be an improper party
for the reason articulated in Mackin and reemphasized in
Chaney,’ id. at 608. See also Whitfield v. Illinois Board of
Law Examiners, 504 F.2d 474 (7th Cir. 1974) (reaching
similar conclusion).
The harm suffered by the plaintiff, if any, is that result-
ing from the Arizona Supreme Court's refusal to admit
*In Brown, a graduate of an unaccredited law school sued the
Nevada Supreme Court, State Bar, and Board of Bar Examiners to
allow her to sit for the bar. The district court dismissed the State
Bar and the Board of Bar Examiners as improper parties under
Hackin, yet issued an injunction against them. 623 F.2d at 608. In
allowing the bar and the board to appeal, the court of appeals
explained:
We see no logic in the district court’s novel rulings which
currently dismissed appellants and yet granted specific relief
against them. Whatever the rationale, however, appellants
should not be denied appellate review of orders by which
they are aggrieved.
Id. Clearly, the court allowed the two parties to appeal because
they were aggrieved. In dictum, the court said that Hackin, involv-
ing a challenge to the validity of a state supreme court rule gov-
erning admission to the bar, did not apply to make the state bar
and the board improper defendants, since these were the only
parties who could “physically comply” with an injunction requir-
ing the defendants to let the plaintiff sit for the bar. Id. at 608 &
608 n.6. Even assuming the correctness of that dictum, it has no
application to this case. Ronwin complains not of the failure of the
state bar to seat him for the exam—he failed it—but of the failure
of the supreme court to admit him. Admission to the bar is within
the province of the supreme court, not the state bar, nor the com-
mittee.
A-23
him to the bar, Accordingly, Ronwin cannot sue the Com-
mittee on Examinations and Admissions of the Arizona
Supreme Court.
B. Limitations on Challenges
Court review of state procedures for admission and
testing is guided by the rational basis standard. CFaney v.
State Bar, supra, at 964; Tyler v. Vickery, 517 F.2d 1089,
1099 (5th Cir. 1975), cert. denied, 426 U.S. 940, 96 S.Ct.
2660, 49 L.Ed.2d 393 (1976).’ While the discretion granted
to states and bar examiners is broad, the opportunity to
practice law is protected by the due process and equal pro-
tection clauses of the fourteenth amendment. Willner v.
Committee on Character & Fitness, 373 U.S. 96, 102, 83
S.Ct. 1175, 1179, 10 L.Ed.2d 224 (1963). Brown v. Board of
Bar Examiners, supra, established a definite procedure for
challenging admission practices. Noting that admission
procedures are purely a matter of local concern, Brown
stated, “The only constraints on the states’ exclusive jur-
isdiction are constitutional in nature... ." 623 F.2d at 609.
*A variety of discretionary practices have been sanctioned by the
courts, Statutes perniitting admission without examination are valid.
Shenfield v. Prather, 387 F.Supp. 676 (N.D.Miss.1974). A state
may validly require cn applicant to pass an examination in essay
form. Chaney v. State Sur, supra. A state may allow state graduates
to waive examination without denying equal protection to other
applicants. Huffman v. Montana Supreme Court, 372 F.Supp. 1175
(D.C.Mont.), affd, 419 U.S. 955, 95 S.Ct. 216, 42 L.Ed.2d 172
(1974). A board of bar examiners may validly meet to review
borderline failure after all scores are tabulated. Hooban v. Board
of Governors of Washington State Bar Ass'n, 85 Wash.2d 774, 539
P.2d 686, app. dism’d, 424 U.S. 902, 96 S.Ct. 1092, 47 L.Ed.2d 306
(1976). Subjective grading by examiner is allowed. Tyler v. Vick-
ery, supra,
A-24
Brown outlined the alternatives available to an unsuc-
cessful applicant:
Since federal courts are granted jurisdiction under
28 U.S.C. $1343 to vindicate constitutional rights, an
issue arises as to the extent of a federal court's au-
thority to participate in what is primarily a state con-
cern. A dichotomy has developed between two kinds
of constitutional attack which might be pursued by an
unsuccessful bar applicant: “The first is a constitu-
tional challenge to the state's general rules and regu-
lations governing admission; the second is a claim,
based on constitutional or other grounds, that the
state has unlawfully denied a particular applicant ad-
mission.” Doe v. Pringle, 550 F.2d 596, 597 (10th Cir,
1976), cert. denied, 431 U.S, 916, 97 S.Ct, 2197, 53
L.Ed.2d 227 (1977).
In the first type of attack, federal district courts
may assert jurisdiction under 41343 to ensure that
generally applicable rules of procedures do not im-
pinge on constitutionally protected rights. Federal
courts have frequently entertained challenges to rules
controlling admission to the bar, and have almost with-
out exception sustained the validity of such rules,
[Citations omitted}.
On the other hand, a state court's decision on an
individual application may not be disturbed in an
original suit in federal district court, “([O)rders of a
state court relating to the admission, discipline, and
disbarment of members of its bar may be reviewed
only by the Supreme Court of the United States on
certiorari to the state court....” Mackay v, Nesbett,
412 F.2d 846 (9th Cir.), cert. denied, 396 U.S. 960, 90
S.Ct. 435, 24 L.Ed.2d 425 (1969), In exercising its
judgment on an individual petition, a state supreme
court performs a judicial act, Jn re Summers, 325 U.S.
A-25
561, 65 S.Ct, 1307, 89 L.Ed, 1795 (1945), reviewable
in the Supreme Court. See Schware v, Board of Bar
Examiners, supra, 353 U.S, at 238, 77 S.Ct. at 755;
Konigsberg v, State Bar of California, 353 U.S, 252,
258, 77 S.Ct, 722, 725, 1 L.Ed.2d 810 (1957), A federal
district court, in contrast, does not sit as an appellate
court and therefore lacks jurisdiction to review state
court actions denying admission to the bar, even
though the denial allegedly involves deprivation of
constitutional rights.
Brown, supra, at 609-10 (citations omitted), The plaintiff
in Brown attempted the only viable challenge to state
bar admission procedures—a constitutional challenge.
Brown denied jurisdiction because the plaintiff presented
a claim of individual constitutional deprivation and the
prayer for relief sought individual redress including
monetary damages, Hence, the court found that the claim
Was not cognizable in district court, Brown, supra, at 611.
C, The Majority Opinion
The opinion disregards the tradition of deference to
state discretion in admission procedures, Because such
deference has never existed toward the state's ability to
regulate fees, the majority's reliance on Goldfarb v, Vir-
ginia State Bar, 421 U.S, 773, 95 S.Ct. 2004, 44 L.Ed.2d
572 (1975), is misplaced, Further, the opinion creates an
antitrust cause of action where the only challenge that
might be appropriate is a constitutional one. Brown, 623
F.2d at 609, Finally, Brown held that a federal district
court does not have jurisdiction over a claim against bar
examiners because the state court is the real party in
interest in admission cases, In addition, jurisdiction is al-
A-26
lowed only where the suit alleges arbitrary and capricious
procedures violative of due process, 623 F.2d at 610, How-
ever, the qualifications for admission in Arizona are
“nearly identical” to those unsuccessfully challenged in
Brown. Id, at 610, n.9, Because Ronwin has sued the wrong
defendant and because his suit raises no constitutional
challenge to admission procedures, binding precedent re-
quires that the district court's dismissal be affirmed.
Il. THE ANTITRUST EXEMPTION,
The Parker antitrust exemption is grounded in our fed-
eral system:
In a dual system of government in which, under the
Constitution, the states are sovereign, save only as
Congress inay constitutionally subtract from their au-
thority, an unexpressed purpose to nullify a state's
control over its officers and agents is not lightly to be
attributed to Congress.
Parker v, Brown, 317 U.S, 841, 351, 63 S.Ct. 307, 313, 87
L.Ed, 315 (1943), The unfortunate effect of the majority
opinion is to attribute to the Sherman Act a congressional
intent to limit a state's control over bar admissions,
The proposition for which National League of Cities v.
Usery, 426 U.S, 833, 96 S.Ct, 2465, 49 L.Ed.2d 245 (1976),
stands, namely, that federal interference should not extend
to essential state functions, is applicable to antitrust cases,
in which Congress exercises its powers under the commerce
clause, See Lafayette v. Louisiana Power & Light Co., 435
U.S. 389, 423, 98 S.Ct. 1128, 1142, 55 L.Ed.2d 364 (1977)
(Burger, C. J., concurring in Part I of the Court's opinion
and in the judgment); id, at 430, 98 S.Ct. at 1145 (Stewart,
J., dissenting), I would think that regulation of bar ad-
missions is an “integral operation in the area of tradi-
tional government functions.” See id, at 424, 98 S.Ct. at
1142 (Burger, C, J.), For that very reason, the Arizona
Supreme Court oversees bar admissions and delegates au-
thority to its agent, The state must have regulatory au-
thority to examine the fitness and competence of bar appli-
cants. If the state's agents abuse their authority, the proper
remedy is a constitutional attack, not an antitrust attack
that will undermine the authority that states qua states
have to regulate bar admissions,
The majority applies erroneous standards to determine
whether an agency of the state, that is, the Committee on
Examinations and Admissions of the Arizona Supreme
Court, is exempt from antitrust laws, The majority incor-
rectly applies a test of compulsion by asking whether the
action of the Committee was required by the state supreme
court. The majority answers; “Like the defendants in Gold-
farb, the defendants here have no statute or Supreme
Court Rule to point to as directly requiring the challenged
grading procedure.” Maj. op. ante, at 696 (emphasis
added),
However, the test of compulsion in Goldfarb, supra, ap-
plied only to private conduct of the county bar association
and to the State Bar's joinder in that private conduct. In
Goldfarb, the private county bar association adopted a fee
schedule and the State Bar, “by providing that deviation
from County Bar minimum fees may lead to disciplinary
action... voluntarily joimed in what is essentially a pri-
vate anticompetitive activity.” Goldfarb, supra, at 791-92,
95 S.Ct, at 2015-16,
A-28
In analyzing the application of the compulsion test to the
antitrust immunity of public and private defendants, Pro-
fessor Areeda has wisely remarked:
The Supreme Court and lower courts have not ap-
plied the compulsion language literally. In Midcal, 445
U.S. 97 [100 S.Ct. 937, 63 L.Ed.2d 233] (1980), the
Court defined the criteria for imm inity not in terms of
compulsion but in terms of supervision and articulated
state policy; the emphasis on supervision implies pub-
lie scrutiny, deliberation and review, but not com-
mand. 7d. at 105-06 [100 S.Ct. at 943-44]. And in
Parker, 317 U.S. at 346-47 [63 S.Ct. at 311-12], the
anticompetitive output limitations ultimately enforced
by public officials originated in proposals from the
beneficiaries.
Lower courts employ the rhetoric of compulsion
found in Goldfarb and Cantor, but immunize private
action that is essential to a state regulatory scheme.
Compulsion is not necessary in cases of public de-
fendants. Immunity for decisions of subordinate
agencies or officials cannot depend on an explicit com-
mand from the legislature; delegation of governmental
powers necessarily includes the discretion to make
decisions not compelled by the legislature.
Areeda, Antitrust Immunity for “State Action” After
Lafayette, 95 Harv.L.Rev. 435, 438 n.19, 445 n.49 (1981).
In the instant case, the defendants are the committee
and its members, a state agency and officials acting within
their general ambit of authority granted by the Arizona
Supreme Court. Since the activity of public defendants is
involved, the proper test for antitrust immunity is the one
A-29
found in City of Lafayette, supra. The plurality in La-
fayette concluded that “the Parker doctrine exempts only
anticompetitive conduct engaged in as an act of govern-
ment by the State as sovereign, or, by its subdivisions,
pursuant to state policy to displace competition with regu-
lation.” Jd. at 413, 98 S.Ct. at 1187. An adequate mandate
for state anticompetitive activity exists when it is found,
from the authority given a governmental entity to operate
in a particular area, that “the kind of action complained
of” was contemplated. Jd. at 415, 98 S.Ct. at 1138.
Thus, the proper test to apply to the action of the Com-
mittee is one of state authorization, not one of compulsion.
In deciding whether the action of the Committee was autho-
rized, it is necessary to consider whether the Committee
acted “pursuant to state policy to displace competition with
regulation,” City of Lafayette, supra, at 413, 98 S.Ct. at
1137, and whether that policy was “clearly articulated and
affirmatively expressed.” Community Communications Co.,
Inc. v. City of Boulder, ...... | ip. Seaton cee , 102 S.Ct. 835,
840, 70 L.d.2d 810 (1982),*
‘I recognize that the majority believes an additional element of
the immunity test is whether the state policy is “actively super-
vised by the state itself.” Maj. op., ante, at 696. Professor Areeda,
however, observes that the Supreme Court has not yet required
that governmental acts be supervised by the state. Areeda, Anti-
trust Immunity for “State Action” After Lafayette, 95 Harv.L.Rev.
435, 445 & 445 n.50.
The cases cited by the majority do not apply the supervision
test to public defendants—and, of course, the Committee and its
members are such defendants. City of Lafayette v. Louisiana
Power & Light Co., 435 U.S, 389, 410, 98 S.Ct. 1123, 1135, 55 L.Ed.
2d 364 (1978), quotes the “active supervision” language of Bates,
without applying any such test. New Motor Vehicle Board of Cali-
fornia v. Orrin W. Fox Co., 439 U.S. 96, 109, 99 S.Ct. 403, 411, 58
L.Ed.2d 361 (1978), makes no mention of an “active supervision”
A-30
There can be no doubt that it was the policy of the
Arizona Supreme Court—and, of course, the policy of the
test. California Retail Liquor Dealers Assoc. v. Midcal Aluminum,
Inc., 445 U.S. 97, 105, 100 S.Ct. 937, 943, 63 L.Ed.2d 233 (1980),
applies the test to a private defendant. Finally, Community Com-
munications Co. v. City of Boulder, US. n.14, 102 S.Ct.
$41 n.l4 (1982), expressly refused to reach the issue of whether
active state supervision was required.
Were the Midcal test of “active supervision” to be extended to
include public defendants, I nave no doubt that the test would be
satisfied in the instant case by the Arizona Supreme Court's review.
Ariz.Sup.Ct. Rule 28(a)(1970); Ariz.Sup.Ct. Rule 28(c)VII(3B)
(1974).
The majority declares that a triable issue remains as to whether
the submission made by the Committee to the supreme court pur-
suant to Rule 28(c) was adequate to enable the supreme court to
engage in the kind of active supervision which the majority con-
cludes is required before the state action exemption will be avail-
able.
Supreme Court Rule 28(c), as in effect at the relevant time, re-
quired the Committee to file its grading formula with the supreme
court 30 days before the bar examination, As the majority notes,
it apparently did not come to the attention of the district court, nor
to this court until quite recently, that this rule was in effect at the
time the conduct complained of by Ronwin occurred. However,
this supreme court rule has the force of law, and the court can—
indeed must—consider it in deciding whether the Committee's con-
duct was actively supervised by the court.
In addition to considering the effect of Rule 28(c), however,
the majority has also given weight to evidence not presented to the
district court, and indeed not presented to this court until long
after oral argument, purporting to bear on the actual nature of
the submission made pursuant to Rule 28(c). The record made by
the parties in the district court contains no evidence whatsoever
that would suggest any failure by the Committee to adequately
inform the supreme court of its grading policies and procedures.
I find it irregular for the court of appeals to go outside the record
to decide an appeal from a dismissal by the district court. As a
matter of due process, the parties have a right to have their ap-
peal heard on the basis of the factual record assembled in the court
below.
A-31
state’s highest court is that of the state, see Bates v. State
of Arizona, 433 U.S. 350, 360, 97 S.Ct. 2691, 2697, 53 L.Ed.
2d 810 (1977)—to displace competition with regulation.
Indeed, any effort to limit admission to the bar will limit
the open competition of the market place. As part of the
regulatory scheme, the supreme court adopted a rule
directing its Committee to “examine applicants and recom-
mend to this court for admission to practice applicants who
are found by the committee to have the necessary qualifi-
cations.” Rule 28(a) (1970). Surely this authorization by
the Arizona Supreme Court “contemplates” that its Com-
mittee would engage in the “kind of action complained of”
by plaintiff, namely, the establishment of bar admission
standards and grading procedures.
The majority relies on Goldfarb, rather than Bates,
supra, as analogous to the instant case. Though neither
Goldfarb nor Bates is an exact replica of the case at hand,
Bates is more directly on point. Goldfarb would be more
relevant if, in the instant case, the Arizona Supreme Court
had rejected the Committee's procedures; the state supreme
court in Goldfarb had warned the state bar against enfore-
ing the challenged fee schedules. Goldfarb, supra, at 789, 95
S.Ct. at 2014. In contrast, the Arizona Supreme Court
approved the procedures challenged here by accepting
recommendations for admission based on those procedures.’
This implied validation of the board’s grading system
renders Bates the more direct and proper analogy.
‘In further contrast, the defendant in the instant case is a public
defendant carrying out a state pcelicy, whereas the defendants in
Goldfarb were the private county bar and the state bar joining in
essentially private activity. See dissent .. . supra.
A-32
In Bates, the activity of the state bar was to enforce a
prohibition against advertising. There, the state bar was
immune because the supreme court had promulgated the
rule. The alleged anticompetitive result was to monop-
olize. In the instant case, the challenged activity is the
grading of examinations on a curve. The state supreme
court has entrusted the grading 0 examinations to the
state bar. The alleged anticompetitive result is artificially
to limit the number of attorneys and thereby to monop-
olize. The opinion erroneously subjects the state bar to
antitrust laws by focusing on the alleged result and ignor-
ing the immunity issue decided in Bates.
The majority has relied on two cases in which no anti-
trust immunity was found for cities charged with antitrust
violations. City of Lafayette, supra; City of Boulder,
supra. Those cases are inapposite, as they involve actions
by cities. Such action deserves close scrutiny, as there is
justifiable concern that a city may advance local, parochial
interests, rather than the interests of the people of a
state. The federalist compromise, of course, only provides
antitrust immunity where the state’s interests are con-
cerned. In the instant case, however, an arm of the state
supreme court, not a city, is doing the regulating. More-
over, the regulation concerns a matter of statewide interest
—the qualifications of admittees to the bar—not a matter
of local concern. The regulation of admission to the bar is
at the core of the state’s power to protect the public.
City of Boulder, supra, actually lends support to the
position that antitrust immunity should apply in the case
at hand. In explaining why antitrust immunity should not
A-33
be conferred on a city exercising home rule powers granted
by the legislature, the Court in City of Boulder stated:
(Plainly the requirement of “clear articulation and
affirmative expression” is not satisfied when the State’s
position is one of mere neutrality respecting the
municipal actions challenged as anticompetitive. A
State that allows its municipalities to do as they please
can hardly be said to have “contemplated” the specific
anticompetitive actions for which municipal liability is
sought. Nor can those actions be truly described as
“comprehended within the powers granted,” since the
term, “granted,” necessarily implies an affirmative
addressing of the subject by the State.
City of Boulder, supra, ........ if SS Saeoeee , 102 S.Ct. at 843
(emphasis in original). By no stretch of the imagination
has the Arizona Supreme Court taken a position of “neu-
trality” allowing the Committee to do as it pleases. To the
contrary, the Arizona Supreme Court has affirmatively
addressed the subject matter of this suit by granting to
the Committee the power to examine applicants and to
recommend for admission to the bar those who are found
to have the necessary qualifications.’
“Arizona Supreme Court Rule 28(a) (1970), which assigns to
the Committee the duty of screening applicants, provides in perti-
nent part:
The committee shall examine applicants and recommend to
this Court for admission to practice applicants who are found
by the committee to have the necessary qualifications and to
fulfill the requirements prescribed by the rules of the board
of governors as approved by this Court respecting examina-
tions and admissions. . . . The Court will then consider the
recommendations and either grant or deny admission.
A-34
I am concerned that the majority, by holding that the
anticompetitive action in this case was not authorized by
the state and is not shielded by the state antitrust immu-
nity, has opened wide the door to antitrust scrutiny of
virtually all acts by agents and officials of the state who
carry out policies of statewide concern. The foreseeable
consequence of multiplication of antitrust actions accom-
panied by the threat of treble damages will be timorous
decision-making by state officials entrusted with the public
interest. The day when every act of an agent or official of
the state who has been delegated power pursuant to state
policy becomes subject to scrutiny for violation of the
antitrust laws will be the day that our federalism has
become gravely weakened.
III. ALLEGED IMPACT ON COMMERCE.
In order to prevail in an antitrust suit, a party must
demonstrate an effect on commerce which is “more than
trivial” in the relevant market. Gough v. Rossmore Corp.,
585 F.2d 381, 389 (9th Cir. 1978), cert. denied, 440 U.S. 936,
99 S.Ct. 1280, 59 L.Ed.2d 494 (1979). Plaintiff's complaint
neither identifies a relevant market nor alleges a substan-
tial impact on such a market. A court should give a party
the opportunity to demonstrate the elements of his case if
his claim presents the possibility that he may prove sub-
stantial impact. However, on the facts of this case, plaintiff
could not demonstrate more than the trivial impact of a
curved grading system. The ability of applicants to reapply
permits them to remain within the potential commerce
stream.
In addition, the opinien relies on McLain v. Real Estate
Board, 444 U.S. 232, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980),
A-35
for the proposition that Ronwin could “conceivably” dem-
onstrate impact on the relevant market. The relevant
market in this case, however, while not defined before the
district court, is a broad and diffuse market that is not
analogous to the well-defined property market in New
Orleans with a specific percentage of out-of-state contrac-
tors, Without more, the conclusion of a conceivable impact
in Ronwin does not flow from the facts of McLain,
CONCLUSION
For the foregoing reasons, I dissent.
A-36
Appendix B
In the United States District Court
For the District of Arizona
NO. CIV 78-193 PHX MLR
Edward Ronwin,
Plaintiff,
Vs.
State Bar of Arizona, et al.,
Defendants.
[Filed Oct. 9, 1979)
ORDER AND JUDGMENT
This cause came on to be heard before the Court on the
following motions:
1. Motion of plaintiff seeking recusal of judge.
2. Motion of defendants to dismiss the complaint.
The Court, having considered the pleadings, the memo-
randa of points and authorities filed by the parties and
the argument of counsel for defendants, plaintiff having
waived his appearance and having waived oral argument
on his motion seeking recusal of judge, finds as follows:
1. Plaintiff's motion seeking recusal of judge is legally
insufficient.
2. The allegations of the complaint fail to state a claim
upon which relief can be granted.
3. The Court lacks jurisdiction of the subject matter.
4. The plaintiff lacks standing to seek the relief re-
quested.
A-37
Now, therefore, it is Ordered and Adjudged as follows:
1. The motion of plaintiff seeking recusal of judge is
hereby denied.
2. The motion of defendants to dismiss is hereby
granted.
3. The Clerk is hereby directed forthwith to enter judg-
ment in favor of the defendants, and each of them, and
against the plaintiff.
4. Defendants’ costs shall be taxed pursuant to law.
Done in Open Court this 23d day of March, 1979.
_ United States District Judge
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