# Amicus Brief — Hoover v. Ronwin

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 558

## Text

a8
" RS) No. 82-1474

In the Supreme Court

OF THE

United States

Octosper Term, 1983

Cuaries R. Hoover, Howarp H. Karmay, Ropert D. Myers
and Haroutp J. WoLFincer,
Petitioners,
vs.

Epwarp Ronwin,
Respondent.

On Writ of Certiorari to the
United States Court of Appeals for
the Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF OF
AMICUS CURIAE
AND
BRIEF OF AMICUS CURIAE
IN SUPPORT OF PETITIONERS

Kurt W. MEeELcHIor

One Embarcadero Center,
25th Floor
Of Counsel: San Francisco, CA 94111
ALLAN ASHMAN (415) 398-3344
333 North Michigan Avenue, Attorney for Amicus Curiae
Suite 1025 National Conference of
Chicago, IL 60601 Bar Examiners

oun E. Hort-Hanais, Jr.
Grarr, Foy, Conway,
Hoxt-Harris & MEALEY
90 State Street
Albany, NY 12207

AN T. CHILTON

EVERSON, WERSON, BERKE

& R

A Professional C ration

One Embarcadero ter,
25th Floor

San Francisco, CA 94111

BOWNE OF SAN FRANCISCO, INC. © 190 NINTH GT. © S.F., CA 94108 © (418) 664-8900

No. 82-1474
In the Supreme Court

OF THE

United States

Octoper Term, 1983

Cuaries R. Hoover, Howarp H. Karman, Ropert D. Myers
and Harotp J. WoLrFincer,

Petitioners,
vs.
Epwarp Roywiy,
Respondent.

On Writ of Certiorari to the
United States Court of Appeals for
the Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF OF
AMICUS CURIAE

The National Conference of Bar Examiners (“NCBE”)
moves for leave to file the attached Brief of Amicus Curiae
in support of petitioners. Petitioners have consented to the
filing of this amicus brief; respondent Ronwin has with-
drawn his consent previously given.

The NCBE is a national service organization for bar
examiners like the petitioners in this case. The NCBE has
an organizational interest in this case because the holding
below will have serious impact on the bar examining process
and will create potential liability for the NCBE as the
organization which prepares and scores the Multistate Bar
Examination and the Multistate Professional Responsi-
bility Examination.

il

With the court of appeals’ permission, the NCBE filed
amicus curiae briefs in support of each petitioners’ two
petitions for rehearing in that court, and with this Court's
permission, the NCBE filed an amicus curiae brief in
support of the petition for writ of certiorari.

In the attached amicus curiae brief, the NCBE demon-
strates why this Court's recent decision in District of
Columbia Court of Appeals v. Feldman, ...... if Se
S.Ct. 1303 (1983) prevents federal district courts from
assuming jurisdiction over antitrust suits which, like Ron-
win’s, seek to attack collaterally the final judicial deter-
mination of a state's highest court in denying an applicant
admission to practice law. Application of the Feldman
holding to cases such as Ronwin'’s avoids a severe and
unnecessary intrusion on the states’ compelling interest in
regulating the legal profession.

The attached amicus curiae brief also demonstrates that
petitioners’ acts were exempt from antitrust scrutiny under
Parker v. Brown, 317 U.S. 341 (1943). The Arizona Com-
mittee on Examinations and Admissions acted as the state
itself in its sovereign capacity and therefore was absolutely
immune without meeting the twofold test restated in Cali-
fornia Retail Liquor Dealers Ass'n v. Midcal Aluminum,
Inc., 455 U.S. 97, 105 (1980).

The amicus brief also discusses the proper application
of the Midcai test to public entities, showing that such
entities need not demonstrate that their actions were “com-
pelled” by the state or were subject to “active state super-
vision.” All a public entity must show to claim state action
immunity is that its acts were the kind contemplated by its
authorizing legislation. The committee’s challenged acts
met that test.

Finally, the attached amicus curiae brief shows that
because the committee was purely an advisory body whose
sole function was to examine applicants and recommend

iil

that the Arizona Supreme Court grant admission to those
applicants the committee found qualified, the committee's
actions were also immune from antitrust scrutiny under the
Noerr-Pennington doctrine.

Counsel for amicus contacted respondent before com-
mencing work on this brief, and respondent at that time
graciously consented to its filing. Recently, when work on
the brief had been substantially completed, counsel for
amicus wrote respondent, requesting the written consent
letter required by this Court’s Rule 36.2. Respondent then
changed his mind, necessitating this application.

For all of these reasons, the NCBE respectfully requests
that its motion for leave to file the attached brief of amicus
» curiae be granted.

DATED: August 15, 1983.
Respectfully submitted,

Kurt W. Metcnior
One Embarcadero Center,

25th Floor
San Francisco, CA 94111
(415) 398-3344
Attorney for Amicus Curiae
National Conference of
Bar Examiners
Of Counsel:
ALLAN ASHMAN
333 North Michigan Avenue,
Suite 1025

Chicago, IL 60601
— E. Hort-Hargis, Jr.
, For, Conway,

San Francisco, CA 94111

iv

TABLE OF CONTENTS

ey OE DT IIINE, ccs ccscsttiistenecbceresrinicemsmecvensavensocsoone

rn ir i ere. * | apsdiiavisssabiauieennls

DIOR csvcstcienccsicisnsiencescsscncnsingatinionensivocnernnenmmnemtetuntes
1. A Federal Antitrust Action Cannot Be Used To
Challenge A Failing Grade On A Bar Examina-
I nscanchit sicieslibai can dileacaliadslpnscbadaecicaainctboseadbnationnnasgsson

a. The States Have A Compelling Interest In
Regulating Admission To Their Bars ..........

b. The Bar Examination Is An Essential Tool

In Regulating Admission To Practice ........

ce, Federal Antitrust Review Of Bar Examina-
tions Would Disrupt The Bar Examination

Process And Unwisely Shift Control Over

Bar Admissions To The Federal Courts ....

d. District of Columbia Court of Appeals v.
Feldman Bars Individual Antitrust Chal-

lenges To Failing Bar Examination Grades

2. Grading Bar Examinations Is State Action
Exempt From Antitrust Scrutiny 0.000.000.0000...

a. The Committee On Examinations And Ad-
missions Acted As The State In Its Sover-

eign Capacity And Therefore Is Exempt ....

b. If The Midcal Test Applies, The Commit-
toe's Bate Mott Ts ccciciadnc ween

(1) The Committee Acted Pursuant To An
Affirmatively Expressed State Policy ....

(2) Though State Agencies Need Not

Be “Actively Supervised,” Petitioners

WP GGU sscstiecssossdsscdatiidicelinapegtuetmmeaiaonn

3. The Noerr-Pennington Doctrine Shields Peti-
OIE. BGOD agrees cnsinsincsilitisinipeiainmieeaae
I ie heh ccrvesernseeveninttiinsighasacinicig te epee

12

14

20

26

Vv

TABLE OF AUTHORITIES

Cases
Page
Bates yv. State Bar of Arizona, 433 U.S. 350 (1977)
ssguiekgnsleasoinciinssaaseiigadeubiigsanhinioasaannecenelbeeantaina maa 5, 11, 13, 15, 27
Benson v. Arizona State Bd. of Dental Examiners,
ot BA Beet: oo | eee 11, 22, 27
Bill Johnson's Restaurants, Inc. v. NLRB, ...... U.S.
pee 908 B0k. SEG CIGGI) ccc nnininieenn eee
California v. Federal Power Comm'n, 369 U.S. 482
CR a eaicencs ssiahitapasidieatecnadtaaseneetetietaaaeaiae 13
California Motor Transport Co. v. Trucking Unlimited,
est SM), | NNER ok acne aaa: * 28
California Retail Liquor Dealers

13

n. 14 and Bates v. State Bar of Arizona, supra, 433 U.S. at
356-357 demonstrate that antitrust objections can and
should be raised in the course of any state court challenge
to an admission or disciplinary ruling.’ By failing to raise

*Federal district courts have exclusive jurisdiction over private
treble damage actions under the federal antitrust laws. 15 U.S.C.,
§ 15. But, as Feldman and Bates show, that does not prevent state
courts from considering federal antitrust claims in deciding
whether to admit or discipline members of their bars. See also,
Lynch Display Corp. v. National Souvenir Center, Inc., 640 S.W.2d
837 (Tenn.Ct.App. 1982). In the same way, it has long been held
that federal regulatory agencies can and must consider the anti-
trust implications of their actions. See, e.g., Denver & R.G. R.R.
Co. v. United States, 387 U.S. 485, 492-498 (1967); California v.
Federal Power Comm'n, 369 U.S. 482 (1962).

Requiring antitrust challenges to admission or disciplinary deci-
sions to be raised in state court proceedings would allow the state
supreme courts to avoid unintended anticompetitive effects of their
decisions or rules. It would also permit those courts to clearly
articulate state policy on the anticompetitive effects they do intend.
Compare District of Columbia Court of Appeals v. Feldman, supra,
103 S.Ct. at 1315 n. 16. Requiring such issues to be raised in state
court would also obviate the otherwise difficult question of an
appropriate remedy, assuming an antitrust violation were found.
See, Community Communications Co. v. City of Boulder, .. US.

, 102 S.Ct. 835, 843 n. 20 (1982); I P. Areeda & D. Turner, Anti-
trust Law, § 217a, pp. 101-108 (1978).

The seemingly contrary holding in Feldman v, Gardner, 661 F.2d
1295, 1303 (D.C.Cir. 1981), cert. denied, .. US. .., 102 S.Ct.
3483 (1982), rev'd on other grounds sub nom., District of Colum-
bia Court of Appeals v. Feldman, supra, was made without benefit
of this Court’s reasoning in District of Columbia Court of Appeals
v. Feldman, supra, and appears to depend in large part on the
same rationale this Court later rejected with respect to Feldman’s
constitutional claims. Compare 661 F.2d at 1303 n. 61 with 661
F.2d at 1309-1319.

Having incorrectly held that the district court had jurisdiction
to hear Feldman’s antitrust claims, the court of appeals correctly
found that the District of Columbia Court of Appeals acted as the

state itself in promulgating and enforcing its rules governing bar
admissions, and was therefore entitled to state action immunity

: ae

14

his antitrust claim in the Arizona Supreme Court, Ronwin
lost his right to federal court review of that claim.

Any different holding would allow disappointed bar ap-
plicants an easy escape from F'eldman’s rule that the federal
district courts are without jurisdiction to review a final
order of a state supreme court denying a particular appli-
cant admission to the bar. Feldman, supra, 103 S.Ct. at 1316.
Any would-be lawyer could secure collateral review in the
district court by the simple means of phrasing his claim in
antitrust terms rather than constitutional language. Surely,
Feldman was not intended to be limited to such niceties of
pleading.

In short, Feldman points the way to a proper reconcilia-
tion of the states’ compelling interest in regulation of ad-
mission to the practice of law with the federal antitrust
laws. A bar applicant who claims he was denied admission
due to some unauthorized anticompetitive practice may
raise his claim before the state’s highest court on review of
the denial of his admission. If the state court finds that the
applicant was the victim of an unauthorized anticompeti-
tive practice, it will presumably order the applicant’s admis-
sion, or this Court may do so on direct review.

A later federal antitrust action will be precluded. The
disruptive effects of antitrust review of state bar admis-
sions decisions by lower federal court judges and juries will
be avoided.

2. Grading Bar Examinations Is State Action Exempt
From Antitrust Scrutiny

a. The Committee on Examinations and Admissions
Acted as the State in Its Sovereign Capacity and
Therefore Is Exempt

This Court has repeatedly held that the Sherman Act does
not prohibit restraints of trade imposed by the State itself.

from the antitrust laws. 661 F.2d at 1304-1318, This Court denied
Feldman’s petition for certiorart from this holding. Feldman v. Dis-
trict of Columbia Court of Appeals, US. , 102 S.Ct. 3483
(1982).

i

15

Parker v. Brown, supra, 317 U.S. at 350-352; New Motor
Vehicle Bd. v. Orrin W. Fox Co., supra, 439 U.S. at 109;
Bates v. State Bar of Arizona, supra, 433 U.S. at 359-360.

This “state action exemption” arises from our “dual
system of government in which, under the Constitution, the
states are sovereign, save only as Congress may constitu-
tionally subtract from their authority.” Parker v. Brown,
supra, 317 U.S. at 351; City of Lafayette v. Louisiana Power
& Light Co., 485 U.S. 389, 412 (1978). In other words, the
“Parker exemption reflects the federalism principle that
we are a nation of States... .’"’ Community Communications
Co. v. City of Boulder, supra n. 2, 102 S.Ct. at 840.

Because of its fundamental, federalist nature, the Parker
exemption absolutely immunizes from antitrust attack all
acts taken by a state acting in its sovereign capacity. Such
sovereign acts need not meet the two-pronged test articu-
lated in California Retail Liquor Dealers Ass’n v. Midcal
Aluminum, Inc., supra, 445 U.S. at 105." Community Com-
munications Co. v. City of Boulder, swpra, 102 S.Ct. at 841;
Parker v. Brown, supra, 317 U.S. at 250-352; accord Feld-
man v. Gardner, supra n, 2, 661 F.2d at 1305; Foley v. Ala-
bama State Bar, 648 F.2d 355, 359 (Sth Cir. 1981); New
Mexico v. American Petrofina, Inc., 501 F.2d 363, 372 (9th
Cir. 1974).

Instead, the Midcal test is applied only to municipalities,
private persons and others who are not the state and thus
cannot act in a sovereign capacity.* The Midcal test recog-

*As restated in Midcal, the test is “[f)irst, the challenged restraint
must be ‘one clearly articulated and affirmatively expressed as state
policy’; second, the policy must be ‘actively supervised’ by the State
itself.” California Retail Liquor Dealers Ass'n v. Midcal Aluminum,
Inc., supra, 445 U.S. at 105.

‘The fact that the committee's members are lawyers, that is,
members of the regulated industry, and serve on the committee
only on a part-time basis does not deprive their acts of state action
immunity. In Parker, the program committees which established

16

nizes “that a State may frequently choose to effect its pol-
icies through the instrumentality of [such non-state enti-
ties].”” Community Communications Co. v. City of Boulder,
supra, 102 S.Ct. at 840. At the same time, the Midcal test
assures that ‘‘{t]he national policy in favor of free competi-
tion cannot be thwarted by casting ... a gauzy cloak of
state involvement over what is essentially a private price
fixing arrangement.” California Retail Liquor Dealers Ass'n
v. Midcal Aluminum, Inc., supra, 445 U.S. at 106.

Thus, as this Court most recently summarized in Com-
munity Communications Co. v. City of Boulder, supra, 102
S.Ct. at 841, the Parker exemption is available to a state
whenever it acts as sovereign, but to other entities only
when their acts meet the Midcal test:

Our precedents thus reveal that Boulder’s mora-
torium ordinance cannot be exempt from antitrust
scrutiny unless it constitutes the action of the State of
Colorado itself in its sovereign capacity, see Parker, or
unless it constitutes municipal action in furtherance or
implementation of clearly articulated and affirma-
tively expressed state policy [citations].

Emphasis added.

This Court's state action cases have not, as yet, squarely
addressed the question whether state sovereignty resides
in less than all of the many officers and entities of which
modern state governments are composed. See Areeda,

the prorate program, the particular restraint of trade under attack,
were likewise composed of producers and packers, members of the

17

supre, 95 Harv.L.Rev. at 441-442. Nevertheless, this Court's
decisions suggest that the proper answer is that sover-
eignty resides in all parts of state government which make
decisions and set policy for the state as a whole, including,
in this case, the Arizona Committee on Examinations and
Admissions.

Parker itself points the way. That case involved three
levels of California state government. The state legislature
enacted the Agricultural Prorate Act. Under the act, a
statewide Agricultural Prorate Advisory Commission was
established. Finally, upon petition by agricultural pro-
ducers, a program committee of such producers and as
many as two packers could be formed. 317 U.S. at 344,
346-347. The program committee would propose a prorate
program. If approved by the Prorate Advisory Commission
and a referendum of affected producers, the program would
go into effect under the administration of the program
committee, /d. at 347.

In Parker, the state legislature set the overall policy of
excluding competition from selected agricultural markets,
but the program committees, subordinate state administra-
tive agencies composed of members of the regulated indus-
try, decided upon and enforced the particular restraints of
trade which Brown challenged. This Court held the trade
restraints immune from antitrust scrutiny, finding that “in
adopting and enforcing the prorate program,” the state
“as sovereign, imposed the restraint as an act of govern-
ment which the Sherman Act did not undertake to pro-
hibit.” Jd. at 352.

Likewise, in New Motor Vehicle Board v. Orrin W. Fox
Co., supra, 439 U.S. at 109-110, this Court held that the
state action exemption applied to actions of the California
New Motor Vehicle Board, a subordinate state administra-
tive agency, four of whose nine members were from the
regulated industry. The board established specific trade

18

restraints under an extremely general delegation of power
from the California Legislature. See td., at 98 n. 1.
This Court has also recognized in other contexts that
sovereignty resides not only in a state’s legislature, gov-
ernor and supreme court, but in its subordinate administra-
tive agencies as well. Speaking of the Mississippi Public
Services Commission, this Court recently held:
We acknowledge that “the authority to make .. . funda-
mental . . . decisions” is perhaps the quintessential
attribute of sovereignty. [Citation.] Indeed, having the
power to make decisions and to set policy is what
gives the State its sovereign nature. See Bates v. State
Bar of Arizona, 433 U.S. 350, 360... . It would follow
that the ability of a state legislative (or, as here,
administrative) body—which makes decisions and sets
policy for the State as a whole—to consider and
promulgate regulations of its choosing must be central
to a State's role in the federal system.

Federal Energy Regulatory Comm'n, v. Mississippi, ......

US. ....... 102 S.Ct. 2126, 2138 (1982).

These decisions teach that state sovereignty is not
isolated at the highest legislative, executive and judicial
levels of government. If an arm of state government makes
decisions and sets policy for the state as a whole, it acts to
that extent as the state itself in its sovereign capacity.

In this case, the Arizona Committee on Examinations and
Admissions partook of Arizona's sovereignty. The com-
mittee was created by the Arizona Supreme Court, the
state’s highest judicial authority, and is directly responsible
to that body. Ariz.Sup.Ct.R. 28(a). The committee is an
administrative aid to the court, helping it perform the
judicial task of granting or denying admission to practice.
See Richardson v. McFadden, 563 F.2d 1130, 1132 (4th Cir.
1977) (Hall, J., coneurring), cert. denied, 435 U.S. 968
(1978) ; Feldman v. State Board of Law Examiners, 438
F.2d 699, 702 (8th Cir. 1971). The committee carries out

19

testing functions which the supreme court has neither the
time nor the technical skills to perform itself.°

Within the narrow realm of its competence—preparation,
administration and grading of the bar examination—the
committee makes decisions and sets statewide policy. As
in Parker, the highest level of state government has adopted
the overall policy of removing a segment of commerce
from free competition—here, entry into the legal profes-
sion—and has delegated to a lower state agency the job
of developing the particular regulations (or restraints of
trade) needed to carry. the overall policy into effect.*
Ariz.Sup.Ct.R. 28(a), (c).

‘In California, for example, the Committee of Bar Examiners
administered 12,370 examinations in 1982. Smith, 1982 Bar Exam-
ination Statistics, 52 Bar Examiner 24 (1983). A study of the Cali-
fornia committee concluded that in 1977 (when considerably fewer
applicants took the examination), the committee handled 2.3
million separate transactions. Booz, Allen & Hamilton, Inc., A Diag-
nostic Study of the Operations of the Offices of the Committee of
Bar Examiners The State Bar of California (March 1978). Cali-
fornia’s seven supreme court justices could not perform their many
other judicial responsibilities if they participated personally in any
significant way in this vast effort.

*The fact that both the overall anticompetitive policy and the
particular trade restraints here were set by state agencies distin-
guishes this case from Goldfarb v. Virginia State Bar, supra.
In Goldfarb, the Virginia Supreme Court had not adopted an
anticompetitive policy in the pricing of legal services. To the
contrary, its ethical codes directed that lawyers not be controlled
by fee schedules. 421 U.S. at 789 & n. 19. The fee schedules
Goldfarb struck down were “essentially a private anticompetitive
activity” of the County Bar, a voluntary organization. Id., at 790,
792. The State Bar, a state agency for some limited purposes, en-
forced this essentially private restraint which had not been autho-
rized, reviewed or approved by the state. Id., at 791.

Goldfarb was thus similar to Midcal and Schwegmann Bros. v.
Calvert Corp., 341 U.S. 384 (1951). In those cases, state bodies
enforced uniform resale prices set by private parties, and this
Court held there was no state action immunity. By contrast, here
the alleged trade restraint—the method of scoring the bar exami-

; aid

20

As Parker and Orrin W. Fox Co. hold, under such
circumstances the acts of the lower state agency are those
of the state itself acting as sovereign and are immune from
the antitrust laws.

b. If the Midcal Test Applies, tha Committee’s Acts
Meet It

Assuming arguendo that the Committee on Examinations
and Admissions cannot claim state action immunity simply
on the ground that it was acting as the state in its sovereign
capacity, its acts are still immune because they satisfy the
Midcal test as that test is applied to state agencies.

(1) The Committee Acted Pursuant to an Affirma-
tively Expressed State Policy

In determining whether private parties are entitled to
state action immunity, this Court has required that “the
challenged restraint . . . be ‘one clearly articulated and
affirmatively expressed as state policy’... .” California
Retail Liquor Dealers Ass'n. v. Midcal Aluminum, Inc.,
supra, 445 U.S. at 105.

In this case, the court of appeals held that the Arizona
Committee on Examinations and Admissions had not met
this part of the Midcal test because “the defendants here
have no statute or Supreme Court Rule to point to as
directly requiring the challenged grading procedure.” Fn.
omitted; emphasis added; 686 F.2d at 696. The court of
appeals also held that the Arizona Supreme Court’s delega-
tion to the committee of general authority to examine
applicants and the high court’s review of the committee’s
recommendations regarding admission “does not alone
clothe the Committee’s unilateral grading policies with
blanket immunity from the antitrust laws.” Ibid.
nation—was established as well as enforced by the Committee
Examinations and Admissions acting in its official capacity as
state agency. That trade restraint was not “essentially private,”
was a necessary step in accomplishing the state's regulatory
purpose.

z

21

These holdings disclose a two-fold misunderstanding of
the first part of the Mi/cal test, at least as it applies to
governmental entities. First, in City of Lafayette and City
of Boulder, this Court held that for a municipality's acts
to be immune, they need not be compelled or “directly
required” by state policy. Immunity attaches so long as it
is shown that “the State authorized or directed a given
municipality to act as it did... .” Emphasis added; City of
Lafayette v. Louisiana Power & Light Co., supra, 435 U.S.
at 414, 416; Community Communications Co. v. City of
Boulder, supra, 102 S.Ct. at 843-844; Gold Cross Ambulance
v. City of Kansas City, 705 F.2d 1005, 1012 n. 11 (8th Cir.
1983); Town of Hallie v. Citu of Eau Claire, 700 F.2d 376,
381-382 (7th Cir. 1983), petition for cert. filed, 51 U.S.L.W.
3842 (U.S. May 11, 1983) (No. 82-1832); United States v.
Southern Motor Carriers Rate Conference, 672 F.2d 469,
473 (Sth Cir. 1982). A fortiori, a state agency need only be
authorized, not required, to impose a restraint in order
for state action immunity to attach.

Second, the Ninth Circuit's opinion in this case mis-
takenly requires “the state” to direct specifically the par-
ticular restraint under attack. City of Lafayette and City
of Boulder show that such specificity is not required.

This does not mean, however, that a political subdivi-
sion necessarily must be able to point to a specific,
detailed legislative authorization before it properly
may assert a Parker defense to an antitrust suit.
While a subordinate governmental unit’s claim to
Parker immunity is not as readily established as the
same claim by a state government sued as such, we
agree with the Court of Appeals that an adequate
state mandate for anticompetitive activities of cities
and other subordinate governmental units exists when
it is found “from the authority given a governmental
entity to operate in a particular area, that the legisla-
ture contemplated the kind of action complained of.”
[ Citation. }

22

Fn. omitted; City of Lafayette v. Louisiana Power & Light
Co., supra, 435 U.S. at 415; accord: Community Communt-
cations Co. v. City of Boulder, supra, 102 S.Ct. at 840 n.
12; Town of Hallie v. City of Eau Claire, supra, 700 F.2d
at 381; Euster v. Eagle Downs Racing Ass'n, supra, 677
F.2d at 995; see Areeda, supra, 95 Harv.L. Rev. at 445-
446,"

Here, the Arizona Supreme Court plainly “contemplated
the kind of activity complained of.” See Benson v. Arizona
State Bd. of Dental Examiners, supra, 673 F.2d at 275-
276. It directed the committee to “examine applicants and
recommend to this court for admission to practice appli-
cants who are found by the committee to have the neces-
sary qualifications.” Ariz.Sup.Ct.R. 28(a). The committee’s
broad authority to examine applicants was restricted only

"To require “the state” to specifically authorize each particular
trade restraint, as the Ninth Circuit did in this case, would impose
an impossible burden on state #mvernment, effectively preventing
its legislature, governor and supréme court from delegating their
functions. The courts have often recognized that modern govern-
ment, state or federal, depends upon delegation to subordinaté
agencies under broadly phrased mandates. See, e.g., Lichter ov.
United States, 334 U.S. 742, 785 (1948); Panama Refining Co. v.
Ryan, 293 U.S. 388, 421 (1934); Horseman's Benevolent & Protective
Ass'n o. Pennsylvania Horse Racing Comm'n, 530 F.Supp. 1098,
1107-1108 (E.D.Pa. 1982), affd per curiam, 688 F.2d 821 (3d Cir.
1982). The Ninth Circuit’s specific authorization requirement would
prohibit such delegation.

Moreover, “the state” could not specifically authorize each po-
tentially anticompetitive act of its subordinate agencies. The hair
could always be split finer. Here, for example, following Ronwin’s
lead, another disappointed bar applicant could claim that the
questions on the examination were selected for an unauthorized
anticompetitive purpose or that particular answers were given
lower grades for the same reason. To meet such claims, the
Arizona Supreme Court presumably would have to specifically
authorize each of those and a myriad of other details of the tasks
it now delegates to the Committee on Examinations and
Admissi

23

by a rule specifying the subjects the bar examination
should cover. Ariz.Sup.Ct.R. 28(¢) (VII).

The supreme court contemplated that the committee
would devise some method for scoring the bar examina-
tion; that is, of converting answers into “grades.” Ariz.
Sup.Ct.R. 28(c) (VII) (A). Whatever method the committee
chose, it would exclude some would-be competitors from
the market. See Galahad v. Weinshienk, 555 F.Supp.
1201, 1209 (D.Colo. 1983). Whatever the scoring method,
those receiving lower grades would not be recommended
for admission to practice.

Ronwin complains that the scoring method the commit-
tee chose—so-called scaled scoring*—was not the scoring
method the Arizona Supreme Court intended. Compl.,
{ VI; Brief in Opposition to Petition for Certiorari, 9-12,
22. Ronwin is wrong for two reasons.

He incorrectly assumes that the supreme court specified
a particular method of grading the bar examination. It did
not. Ronwin relies on a version of rule 28(¢) (VIII) which
was superseded effective January 14, 1974, a month before
he took and failed the examination. Even the superseded
rule merely said 70 would be a passing grade, specifying
neither the 0-100 grading scale Ronwin claims, nor the
method for determining what grade to give an examina-

“In a series of tests, such as the MBE, which are intended to
measure levels of competence, it i, important to have a standard-
ized score which represents the same level of competence from
test to test. The raw score is not dependable for this purpose since
the level of difficulty varies from test to test. It is not possible to
draft two tests of exactly the same level of difficulty. Scaled scores
are obtained by reusing some questions from earlier tests which
have been standardized. A statistical analysis of the scores on the
reused questions determines how many points are to be added to
or subtracted from the raw score to provide an applicant’s scaled
score. Thus a particular scaled score represents the same level of
competence from examination to examination.”

The Bar Examiners’ Handbook, supra, 61-62.

24

tion.” The new rule 28(c)(VII)(A) explicitly grants the
committee discretion to use the grading or scoring system
it deems appropriate. See n. 9 supra.

More importantly, Ronwin’s complaint that the commit-
tee abused its discretion by choosing the wrong scoring
method does not convert exempt state action into private
action subject to antitrust scrutiny. The antitrust laws
were not passed to allow federal courts to review state
administrative actions for abuse of discretion.

To be sure, Goldfarb v. Virginia State Bar, supra, 421
U.S. at 790-791 holds that anticompetitive activity not
“required” or “compelled” by “the State acting as sover-
eign” is not exempt from the Sherman Act. But it could
not have been Goldfarb’s intent to exempt only state ad-
ministrative decisions which federal scrutiny finds to be
honest, unbiased, disinterested and correct in law and fact.
To limit Parker immunity so narrowly would be to “trans-
form most state administrative law into a federal antitrust
task,’ making federal courts the ultimate arbiters of
whether state agencies have properly implemented the
policies set by state legislatures, governors and supreme
courts. Areeda, supra, 95 Harv.L.Rev. at 450.

Having one sovereign review another in this manner
would violate the federalist underpinning of Parker. It

*Grading a bar examination is not a simple process of counting
the number of “correct” answers and dividing by the number of
questions. Even on the multiple choice Multistate Bar Examination
portion of the test, grading is considerably more complex. Scoring
answers to essay questions is even more difficult, and combining
the two scores in a meaningful way adds yet another layer of
complexity to the process of grading the bar examination. See, The
Bar Examiners’ Handbook, supra, 271-302.

Recognizing these facts, the Arizona Supreme Court amended its
rules 28(c)(VII) and (VIII) to make explicit what was implicit
before. Effective January 14, 1974, rule 28(c}( VII) provided: “The
Committee on Examinations may utilize the Multi-State Bar Exam-
ination sponsored by the National Conference of Bar Examiners and
may utilize such grading or scoring system as the Committee deems
appropriate in its discretion.”

25

would do little to advance the true concerns of the anti-
trust laws, but would make administrative error and bias
antitrust violations. See id., at 454-455. Short of trial, it
would effectively abolish the state action exemption; bias
and abuse of discretion are easily alleged.

Having federal courts and juries reexamine a myriad of
state agency decisions for bias and abuse of discretion
would impose a heavy burden of litigation on the federal
system and seriously interfere with state government.
There is no need for such a massive shift in responsibili-
ties from the states to the federal government. The states
already provide ample remedies to correct their adminis-
trative agencies’ errors.

When a subordinate state agency has acted to implement
a clearly expressed state policy, the Parker exemption
should apply whatever the agency’s bias, interest, motive
or error of law or fact. The exemption should be unavail-
able only when the agency’s acts are “essentially private”
in the sense that the state has not taken a position on the
end to be accomplished by the agency's action if properly
carried out.

Wise and efficient federalism argues against review
by antitrust courts of ordinary state agency errors.
The Lafayette authorization requirement should not
be manipulated to thwart the fundamental Parker pol-
icy against antitrust scrutiny of state action. The anti-
trust court should require only that the result of the
agency’s act or decision be of the sort contemplated
by state anticompetitive policy. “Ordinary” errors or
abuses in the administration of powers conferred by
the state should be left for state tribunals to control.

Fn. omitted; Areeda, supra, 95 Harv.L.Rev. at 453; ac-
cord: Llewellyn v. Crothers, ...... F.Supp. ......, 1983-1 Trade
Cas. (CCH) { 65,358, pp. 70,137-70,138 (D.Ore. 1983).

Antitrust review of a claimed abuse of discretion is par-

ticularly inappropriate in this case. Surely, the Arizona

26

Supreme Court knows best whether its Committee on
Examinations and Admissions went beyond the guidelines
the court had set in its own rules. Under those rules,
Ronwin had the right to review of his failing grade by the
Arizona Supreme Court. Ariz.Sup.Ct.R. 28(¢)(XIT)(C).
He exercised that right, subsequently petitioning this
Court for certiorari to review the Arizona Supreme
Court’s adverse decision. Ronwin v. Committee on Exam-
inations and Admissions, 419 U.S. 967 (1974). It would
certainly be anomalous for a federal district judge or jury
now to decide that the Arizona Supreme Court misinter-
preted its own rules. See Gambrel v. Kentucky Bd. of
Dentistry, supra, 689 F.2d at 619.

In short, to the extent the committee’s state action ex-
emption depends upon the committee’s having acted pursu-
ant to a clearly articulated and affirmatively expressed
state policy, that requirement was met by the Arizona
Supreme Court’s rules which delegate to the committee
the tasks of preparing, administering and grading the bar
examination and which therefore contemplate the kind of
action complained of here; namely, the choice of a par-
ticular method for grading the test.

(2) Though State Agencies Need Not be “Actively
Supervised,” Petitioners Were

In its second aspect, the Midcal test requires that private
parties’ acts be “ ‘actively supervised’ by the State itself” in
order to acquire state action immunity. California Retail
Liquor Dealers Ass’n v. Midcal Aluminum, Inc., swpra, 445
U.S. at 105.

This Court has not yet determined whether state or mu-
nicipal entities must meet this second prong of the Midcal
test. See Community Communications Co. v. City of Boul-
der, supra, 102 S.Ct. at 841 n. 14. Three members of this
Court, id., at 851 n. 6 (Rehnquist, J., dissenting), and most
lower courts have decided that active state supervision of
public entities is not required. Gold Cross Ambulance v.

27

City of Kansas City, supra, 705 F.2d at 1014-1015; Town of
Hallie v. City of Eau Claire, supra, 700 F.2d at 383-385;
Llewellyn v. Crothers, supra, 1983-1 Trade Cas, (CCH) at
p. 70,136; Hybud Equip. Corp. v. City of Akron, ...... F.Supp.
a , 1983-1 Trade Cas. (CCH) 965,356, pp. 70,123-70,124
(N.D. Ohio, 1983). As one lower court has pointed out, to ask
whether “the state” actively supervises its own agencies is
to ask a meaningless, tautological question. Deak-Perera
Hawaii, Inc. v. Department of Transportation, 553 F.Supp.
976, 988-989 (D. Hawaii 1983) ; compare with Euster v. Eagle
Downs Racing Ass’n., supra, 677 F.2d at 995-996; Benson
v. Arizona State Bd. of Dental Examiners, supra, 673 F.2d
at 275. This Court should now hold that public entities need
not show that they are actively supervised by the state in
order to claim state action immunity.

If applicable, the active state supervision requirement is
met in this case. Like the state bar in Bates v, State Bar of
Arizona, supra, the Committee on Examinations and Admis-
sions’ “role is completely defined by the [Arizona Supreme
Cjourt; the [committee] acts as the agent of the court under
its continuous supervision.” /d., 433 U.S. at 361; Ariz.Sup.
Ct.R. 28(a), (c)(V)-(1X). The committee’s recommenda-
tions regarding the qualifications of applicants for admis-
sion to practice “are subject to pointed re-examination by the
policymaker—the Arizona Supreme Court—in .. . pro-
ceedings” to review an applicant’s failure to receive a
satisfactory grade. /d., at 362; Ariz.Sup.Ct.R. 28(¢) (XII)
(C); see, e.g., Application of Klahr, 102 Ariz. 529, 433 P.2d
977 (1967).

The actions of the Committee on Examinations and Ad-
missions meet the requirements of the Midcal test. The
restraint challenged here is not a private practice mas-
querading under “a gauzy cloak of state involvement.”
Rather, it is a restraint imposed to implement the clearly
articulated state policy of assuring lawyer competence; a
restraint imposed by the committee, an official state agency,
under authority granted by and under the supervision of
the Arizona Supreme Court. It is state action.

28

3. The Noerr-Pennington Doctrine Shields Petitioners’

Acts

“Joint efforts to influence public officials do not violate
the antitrust laws even though intended to eliminate com-
petition.” United Mine Workers v. Pennington, 381 U.S.
657, 670 (1965); accord: Eastern R.R. Presidents Conf. v.
Noerr Motor Freight, Inc., 365 U.S. 127 (1961). Last term,
this Court reaffirmed that “the right of access to the courts
is an aspect of the First Amendment right to petition the
Government for redress of grievances.” Bill Johnson's Res-
taurants, Inc. v. NLRB, ........ REIN oiahieut , 103 S.Ct. 2161, 2169
(1983). Unless engaged in as a “mere sham” for harass-
ment purposes, acts initiating judicial proceedings are not
prohibited by the antitrust laws. /bid.; California Motor
Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510-511
(1972).

Like numerous other advisory boards,” the sole function
of the Arizona Committee on Examinations and Admissions
is to recommend to a state governmental entity—in this
case, the Arizona Supreme Court—the action it should take.
Arizona Supreme Court Rule 28(a) provides that the com-
mittee shall examine applicants and recommend those it

If this Court concludes that Ronwin’s action is barred because
it seeks collateral review of final judicial action by the Arizona
Supreme Court, see pp. 12-14, supra, or because the state action
exemption applies, see pp. 14-27, supra, it will be unnecessary to
reach the issue of the Noerr-Pennington doctrine’s application to
the committee’s recommendations. Nevertheless, the issue is one of
broad application and general importance. Like the federal govern-
ment, see H.R. Rep. No. 1017, 94th Cong., 2d Sess. (1972), re-
printed in the 1972 U.S. Code, Cong. & Ad. News 3491, state gov-
ernments rely on a wide array of advisory boards, committees and
commissions, often composed of members of an affected industry,
to provide information, recommendations and advice. Subjecting
the recommendations of such advisory groups to antitrust scrutiny
would gravely impair this necessary channel ot information to state
government.

29

finds qualified to the supreme court for admission to prac-
tice. “The [Arizona Supreme C]ourt will then consider the
recommendations and either grant or deny admission.”
Ariz.Sup.Ct.R. 28(a).

The supreme court considers the committee’s recommen-
dations de novo, recognizing that “the admission to the
practice of law is a judicial function [citation] [and] this
court may, in the exercise of its inherent powers, admit to
the practice of law with or without favorable action by the
Committee. [Citations.].” Application of Courtney, 83 Ariz.
231, 319 P.2d 991, 993 (1957) ; accord: Application of Klahr,
supra, 433 P.2d at 979.

On its own, the committee could not and did not nrevent
Ronwin from practicing law in Arizona. At worst, the
result of its allegedly improper grading method was simply
an incorrect recommendation, a recommendation that the
supreme court deny Ronwin admission to practice. Whether
or not motivated by anticompetitive purposes, that recom-
mendation is just the sort of effort to influence official action
which the Noerr-Pennington doctrine immunizes. See New
Motor Vehicle Bd. v. Orrin W. Fox Co., supra, 439 U.S.
at 110.

30

CONCLUSION

Insofar as it reinstated the complaint against petitioners,
the judgment of the court of appeals should be reversed.

Dated: August 15, 1983.
Respectfully submitted,

Kurt W. MELCHIOR
One Embarcadero Center,

25th Floor
San Francisco, CA 94111]
(415) 398-3344
Attorney for Amicus Curiae
National Conference of
Bar Examiners
Of Counsel:
ALLAN ASHMAN
333 North Michigan Avenue,
Suite 1025

Chicago, IL 60601

— E. Hott-Harais, Jr.
Grarr, Foy, Conway,
Hoxt-Harris & MEALEY
90 State Street
Albany, NY 12207

Jan T. Cutcton

SEVERSON, WERSON, BeEnkE
& MELCHIOR
A Professional Corporation
One Embarcadero Center
25th Floor
San Francisco, CA 94111

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0575%3A14. Public record. Not legal advice.