Opposition Brief — Bowens v. Board of Law Examiners of North Carolina

Supreme Court, US.

FE

4:

9) 1) APR 151387

No. 86-1509 ’ JOSEPH F. SPANIOL, JR.

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

LARRY DEAN BOWENS, et al.,

Petitioners,

V.

.THE BOARD OF LAW EXAMINERS

OF THE

STATE OF NORTH CAROLINA, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

E. OSBORNE AYSCUE, JR.*

JAMES G. MIDDLEBROOKS

SMITH HELMS MULLISS & MOORE

227 North Tryon Street

Charlotte, North Carolina 28202

(704) 372-9510

Attorneys for Respondents

* Counsel of Record

April 1987

QUESTIONS PRESENTED

1. Whether the bar examination procedure employed

by the Board of Law Examiners, which affords a disap-

pointed applicant the right to retake the examination an

unlimited number of times, satisfies the requirements of

due process.

2. Whether the petitioners’ Sherman Act claims are

harred by the “state action” exemption to the antitrust

laws.

TABLE OF CONTENTS

QUESTIONS PRESENTED ................cccccceeessseeeeeeeeeees

TABLE OF CONTENTS. ...0..cooci cc ccscccccnssesecensscaseneens

TABLE OF AUTHORITIES ...............csssceeeesesseeeeeeens

RELEVANT CONSTITUTIONAL PROVISIONS

AND: STA TU GGG one sncsccsscscsrecccscsscrenssanancsnsunetpiannas

STATEMENT OF THE CASE ............ccccccssessssssseeeees

REASONS FOR DENYING THE WRIT.................45

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Appendix A

N.C. Gen. Stat. § 84-15 (19GB) ......0..005...sc0sce05:

N.C. Gen. Stat. § 84-17 (1985)..................:ss0008

N.C. Gen. Stat. § 84-21 (1985)....................cc00

NC. Gen. Stat. & BO-B6 (RG awsssnnisescscccesscniss

N.C. Gen. Stat. § 84-36 (1985)............:::eeeeeeees

Appendix B

Decision of United States Court of Appeals

for the Fourth Circuit in Rogers v. Court

of Virginia, No. 84-1746, decided August

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TABLE OF AUTHORITIES

Page

Cases

Baker v. Varser, 240 N.C. 260, 82 S.E.2d

EES ee ie ae ne 6

Bates v. State Bar of Arizona, 433 U.S.

gg SO ESA 8

Bowens v. Board of Law Examiners, 57

N.C. App. 78, 291 S.E.2d 170 (1982)........ 6

California Retail Liquor Dealers Ass’n v.

Midcal Aluminium, Inc., 445 U.S. 97

ESE) Sa 8

City of Lafayette v. Louisiana Power &

Light Co., 435 U.S. 389 (1978)..........000..... 7

Community Communications Co. v. City of

Boulder, 455 U.S. 40 (1982)...................... 8

Goldfarb v. Virginia State Bar, 421 U.S.

Ne cs caseanes 8

Hannah v. Larche, 363 U.S. 420 (1960)...... 5

Hoover v. Ronwin, 466 U.S. 558 (1984)...... 7-9

In re Applicants for License, 143 N.C. 1,

I IS ove cccvacecdesdsicccuasecasesccee 6

In re Moore, 301 N.C. 634, 272 S.E.2d 826

ea a weueencs 6

In re Willis, 288 N.C. 1, 215 S.E.2d 771,

appeal dismissed, 423 U.S. 976 (1975).... 6

Jones v. Board of Commissioners, 737

F.2d 996 (11th Cir. 1984).......................... 5

Keenan v. Board of Law Examiners, 317

F. Supp. 1350 (E.D.N.C. 1970)..........000..... 6

Lucero v. Ogden, 718 F.2d 355 (10th Cir.

1983), cert. denied, 465 U.S. 1035

ccs ccuetiansedcasnes 5

New Motor Vehicle Board v. Orrin W. Fox

Oe ek Se SG. cy | ee 8

Parker v. Brown, 317 U.S. 341 (1943)........ 7-9

Poats v. Givan, 651 F.2d 495 (7th Cir.

nooo sel etiwipiadenvadbounianaeaons 5

ili.

Rogers v. Supreme Court of Virginia, No.

84-1746 (4th Cir. Aug. 22, 1985)..............

Schware v. Board of Bar Examiners, 353

is & 2 ¢: _ : 9 Fase esserennneenTerEN tenure

Sutton v. Lionel, 585 F.2d 400 (9th Cir.

FD esiskncsisndacikvatinickpatcnnninssoonmnaticicinnineenssses

Tyler v. Vickery, 517 F.2d 1089 (5th Cir.

1975), cert. denied, 426 U.S. 940 (1976)

Whitfield v. Illinois Board of Law

Examiners, 504 F.2d 474 (7th Cir. 1974)

Constitutional Provisions, Statutes, and Rules

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N.C. Gen. Stat. § 84-15 (1985)...................

N.C. Gen. Stat. § 84-17 (1985).............. ee

N.C. Gen. Stat. § 84-21 (1985)......................

N.C. Gen. Stat. § 84-24 (1985)..................008

N.C. Gen. Stat. § 84-36 (1985)............... eee.

Ee Se BI ec ciliscetenndakdntincesnsenccsnornctiecn

Miscellaneous

Special Project, Admission To The Bar: A

Constitutional Analysis, 34 Vand. L.

I Sie Oe Racin sta hnctitnsrtensscancopersccensinssus

iv.

No. 86-1509

IN THE

Supreme Cot of the United States

OCTOBER TERM, 1986

LARRY DEAN BOWENS, et al.,

Petitioners,

V.

THE BOARD OF LAW EXAMINERS

OF THE

STATE OF NORTH CAROLINA, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

RELEVANT CONSTITUTIONAL

PROVISIONS AND STATUTES

The Fourteenth Amendment to the Constitution pro-

vides, in pertinent part:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.

The full text of N.C. Gen. Stat. §§84-15, 84-17, 84-21,

84-24, and 84-36 is set forth in the Appendix hereto

(“Resp. App.”) at la-7a.

2

STATEMENT OF THE CASE

Petitioners are seven unsuccessful black applicants

who have each taken and failed the North Carolina bar

examination at least two times. In June 1982, petitioners

filed this action against the Board of Law Examiners of

the State of North Carolina and its individual members

(collectively referred to as the “Board”), alleging that:

(1) the administration and grading of the North Carolina

bar examination discriminated against petitioners on the

basis of their race because both the applications and the

examinations were racially segregated; (2) petitioners’

examinations were not graded but, rather, were arbitrar-

ily assigned failing grades; (3) petitioners’ papers were

graded arbitrarily and capriciously; (4) the bar examina-

tion itself discriminated on the basis of race; and (5) the

lack of a hearing in which to challenge the examination

results violates due process.

Petitioners contended that the Board’s examination

and grading procedure violated 42 U.S.C. § 1981, 42

U.S.C. § 1983 and Title VII of the Civil Rights Act, 42

U.S.C. § 2000e, et seg., as well as the Due Process Clause

of the Fourteenth Amendment.

The trial court subsequently dismissed petitioners’

Title VII count in December 1982 for failure to state a

claim and the remaining clair ‘or lack of subject matter

jurisdiction. While an appeal was pending before the

United States Court of Appeals for the Fourth Circuit,

petitioners filed petitions with the Supreme Court of

North Carolina seeking review of their failures to pass

the bar examination. In a letter from its Clerk, that court

informed petitioner Diggs that under the Rules Gov-

erning Admission to the Practice of Law in North Caro-

lina “[t}here is no right of appeal provided from a board

determination that the applicant has failed the examina-

tion.” Pet. App. 40.

“Expressing no opinion on the outcome,” the Fourth

Circuit remanded the case for reconsideration in light of

3

this letter from the Clerk of the Supreme Court of North

Carolina. On remand, the District Court retained jurisdic-

tion over petitioners’ due process claim but dismissed the

statutory claims. Extensive discovery then followed.

On September 10, 1985, petitioners sought leave to

amend their Complaint to assert that the Board’s actions

violated sections 1 and 2 of the Sherman Act, 15 U.S.C.

§§ 1-2.'_ Respondents subsequently moved for summary

judgment on all pending counts. The petitioners then

filed a cross-motion for summary judgment on the due

process claim only. On January 6, 1986, the District

Court denied petitioners’ motion to amend their Com-

plaint, denied their cross-motion for summary judgment,

and granted the Board’s motion for summary judgment

on all counts. Pet. App. 19-38. On appeal, the Fourth

Circuit affirmed in an —- per curiam opinion.

Pet. App. 17-18.

REASONS FOR DENYING THE WRIT

1. The Review Procedures Authorized By the Board

and the Ability to Retake the Bar Examination

Satisfy Due Process

'The proposed amendment incorporated by reference the factual alle-

gations of the original complaint. It further alleged that the passing score

on the examination was set after all papers were graded, that on eleven

of thirteen examinations in the relevant period more black applicants

failed the examination than passed it, and that the alleged conduct of the

defendants, “which they entered into as a contract and conspiracy in

restraint of trade * * * artificially reduc{ed] the number of competing

black attorneys in the State of North Carolina; * * * [that] Plaintiffs were

among those artificially prevented from entering into competition as

attorneys in the State of North Carolina and were thereby further

deprived of the right to compete as attorneys for the legal business

deriving from or involving the several states of the United States includ-

ing North Carolina.” Although the District Court’s opinion does not

directly address the issue, its findings on the motion for summary judg-

ment, Pet. App. 22-32, necessarily negate the factual allegations on which

the proposed amendment was premised.

4

Petitioners allege that the Board’s failure to provide

disappointed bar applicants with any opportunity to

review the grading of their exams — either by a Board

member or by the Supreme Court of North Carolina —

violates the procedural due process requirements of the

Fourteenth Amendment. Focusing solely on the failure to

provide a hearing, petitioners ignore the other review

mechanisms provided by the Board:

Applicants who fail the examination may come to

the offices of the Board to review their own exami-

nation papers and to compare their answers to two

answers to the same question written by persons

who took the examination and who, in the Board's

opinion, wrote the best answers. A failed applicant

may also bring someone with him to assist in review-

ing the examination. A failed applicant is told his

{multistate bar examination] MBE score and his total

score on the examination. Since June of 1985, failed

applicants have also been permitted to have their

score on each essay question in the examination.

Failed applicants may also obtain, at their own

expense, copies of their examination papers. Appli-

cants are not permitted to obtain copies of the

selected correct answers. Applicants may also have,

at their own expense, their MBE answer sheets

regraded by hand by the testing service. [Pet. App.

32-33; footnote omitted. |?

Petitioners are certainly entitled to due process,

Schware v. Board of Bar Examiners, 353 U.S. 232,

238-239 (1957), but entitlement to a hearing “does not

automatically flow from a finding that procedural due

process is applicable.” Tyler v. Vickery 517 F.2d 1089,

1103 (5th Cir. 1975), cert. denied. 426 U.S. 940 (1976).

2In contrast to these post-examination review procedures, several

States provide no opportunity for review. Special Project, Admission To

The Bar. A Constitutional Analysis, 34 Vand. L. Rev. 655, 711-712

(1981).

5

What process is due depends largely on the “nature of the

alleged right involved, the nature of the proceeding, and

the possible burden on that proceeding.” Hannah v.

Larche, 363 U.S. 420, 442 (1960).

Contrary to petitioners’ intimation, Pet. at 9, the cir-

cuits that have addressed the issue agree that the right

to retake a bar examination an unlimited number of times

satisfies due process, regardless of whether there is an

opportunity for a hearing. See, e.g., Lucero v. Ogden, 718

F.2d 355 (10th Cir. 1983), cert. denied, 465 U.S. 1035

(1984); Tyler v. Vickery, supra.

Other circuits have rejected due process challenges in

similar circumstances even where the right to retake the

examination was limited. See, e.g., Jones v. Board of

Commissioners, 737 F.2d 996 (11th Cir. 1984) (limited

right to review papers of applicant and others and five-

time reexamination limit); Poats v. Givan, 651 F.2d 495

(7th Cir. 1981) (petition to Indiana Supreme Court

allowed and four-time reexamination limit); Sutton v.

Lionel, 585 F.2d 400 (9th Cir. 1978) (petition to Nevada

Supreme Court and four-time reexamination limit); Whit-

field v. Illinois Board of Law Examiners, 504 F.2d 474

(7th Cir. 1974) (no right to review applicant’s examina-

tion papers and presumptive five-time examination

limit).

In a recent unpublished decision discussed by the Dis-

trict Court and by petitioners, Rogers v. Supreme Court

of Virginia, No. 84-1746 (4th Cir. Aug. 22, 1985)

(reprinted at Resp. App. 8a),* the Fourth Circuit cited

Tyler and Whitfield with approval in upholding the

review procedures employed by the Supreme Court of

Virginia. The court expressly stated that due process did

not require “an unlimited number of opportunities to

34th Cir. 1.0.P. 36.5 states that the citation of unpublished decisions is

disfavored but allows citation where counsel believes that the decision

“has precedential value in relation to a material issue in a case and that

there is no published opinion that would serve as well * * *.”

6

retake an examination, or an unlimited number of

reviews of failing examinations.” Resp. App. at lla.

Thus, there is no divergence among the circuit courts

that would militate in favor of granting the writ. The due

process issue has been thoroughly discussed by the cir-

cuit courts and merits no further illumination from this

Court.

2. The Board’s Actions Fall Within The State Action

Exemption To The Sherman Act. Accordingly, the ©

Motion to Amend was Properly Denied.

In North Carolina, as in most states, “the right to estab-

lish the qualifications to be required of one to become a

practicing member of the bar” rests with the legislature.

In re Applicants for License, 143 N.C. 1, 5, 55 S.E. 635

(1906). As the petitioners concede, Pet. at 14, the North

Carolina General Assembly, in N.C. Gen. Stat. § 84-24,

has delegated its rule-making power in this area to the

Board of Law Examiners:

The statute authorizes the Board of Law Examiners,

subject to the approval of the Council of the North

Carolina State Bar, to make such rules and regula-

tions for admission to the Bar as in its judgment will

promote the welfare of the State and the legal pro-

fession. [In re Willis, 288 N.C. 1, 8, 215 S.E.2d 771,

775, appeal dismissed, 423 U.S. 976 (1975).}*

“The Board is, therefore, an ‘administrative agency,’

Baker v. Varser, 240 N.C. 260, 82 S.E.2d 90 (1954), with

both judicial and delegated legislative powers.” Keenan

v. Board of Law Examiners, 317 F.Supp. 1350, 1355 n.5

(E.D.N.C. 1970). As this delegation of authority makes

clear, see N.C. Gen. Stat. §§ 84-15, 84-17, 84-21, 84-24,

and 84-36, the North Carolina Supreme Court retains

4See also In re Moore, 301 N.C. 634, 639, 272 S.E.2d 826, 829 (1981);

Bowens v. Board of Law Examiners, 57 N.C. App. 78, 81, 291 S.E.ca 170,

172 (1982), a case brought by several of the petitioners but abandoned

after an adverse ruling by the intermediate state appellate court.

7

ultimate authority over the rules and procedures pro-

posed by the Board. Thus, because the Board’s pro’e-

dures are adopted pursuant to a “clearly articulated”

state policy and are “actively supervised” by the North

Carolina Supreme Court, its actions are exempt under the

state action doctrine. City of Lafayette v. Louisiana

Power & Light Co., 435 U.S. 389, 410 (1978) (opinion of

Brennan, J.).

Petitioners wholly fail to discuss this Court’s decision

in Hoover v. Ronwin, 466 U.S. 558 (1984). In Hoover, the

Court ruled that the state action doctrine applies to the

grading of bar examinations by the Arizona Supreme

Court’s Committee on Examinations and Admissions.

Under the Arizona constitution, the Arizona Supreme

Court has the authority to determine who should be

admitted to practice law in the state. Pursuant to that

authority, the court established the committee to

examine applications for admissions to the Arizona bar

but retained the authority to admit or deny admission.

Hoover, 466 U.S. at 561. Ronwin, a disappointed appli-

cant, challenged that the Arizona committee denied him

due process and equal protection and violated the Sher-

man Act by “artificially reducing the numbers of compet-

ing attorneys in the State of Arizona.” Jd. at 565. After

examining the delegation of power from the Arizona

Supreme Court to the committee, this Court ruled that

the committee’s actions were exempt under the state

action doctrine. The starting point for the Hoover Court,

as is the case here, is the reasoning of Parker v. Brown,

317 U.S. 341 (1943). Basing its decision on principles of

federalism and state sovereignty, the Parker Court

refused to construe the Sherman Act as prohibiting the

anticompetitive actions of a State acting through its

legislature:

We find nothing in the language of the Sherman Act

or in its history which suggests that its purpose was

to restrain a state or its officers or agents from activ-

ities directed by its legislature. In a dual system of

8

government in which, under the Constitution, the

states are sovereign, save only as Congress may con-

stitutionally subtract from their authority, an unex-

pressed purpose to nullify a state’s control over its

officers and agents is not likely to be attributed to

Congress. |[Parker,-317 U.S. at 350-351.)

In Bates v. State Bar of Arizona, 433 U.S. 350, 360

(1977), the Court held that a state’s supreme court, when

acting in a legislative as opposed to judicial capacity,

occupies the same position as that of a state legislature

and thus its decisions in that capacity are exempt from

Sherman Act liability as state action. See also Goldfarb v.

Virginia State Bar, 421 U.S. 773, 790 (1975). The Court

has also interpreted Parker to apply to state adminis-

trative agencies where it is clear that the anticompetitive

conduct of that agency was contemplated by the state.

See, e.g., Community Communications Co. v. City of

Boulder, 455 U.S. 40 (1982) (municipal regulation of

cable television industry); California Retail Liquor Deal-

ers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97 (1980)

(private price-fixing arrangement authorized by State);

New Motor Vehicle Board v. Orrin W. Fox Co., 439 U.S.

96 (1978) (new franchises controlled by state administra-

tive board).

In the present case, it is clear that the challenged con-

duct is expressly required by N.C. Gen. Stat. § 84-24:

The Board of Law Examiners * * * shall by majority

vote, from time to time, make, alter and amend such

rules and regulations for admission to the Bar as in

their judgment shall promote the welfare of the State

and the profession * * *. [Emphasis added. |

This case is clearly distinguishable from Goldfarb, which

involved procedures neither required nor approved by

the state supreme court or state legislature.

Instead, the logic of Hoover and Bates is directly appli-

cable here. The individual respondents here are members

of a legislatively created body to which, as petitioners

9

concede, the North Carolina General Assembly has dele-

gated its authority to establish qualifications for admis-

sion to the Bar. As had the Arizona Supreme Court in

Hoover, the North Carolina Supreme Court retains

approval powers over the Board’s rules. Thus, although

the North Carolina General Assembly has delegated its

rule-making authority to the Board, the Board’s actions

are still subject to the ultimate approval of the North

Carolina Supreme Court. Pursuant to the logic of Hoover

and Bates, therefore, the conduct challenged by the peti-

tioners is in reality the combined conduct of the North

Carolina General Assembly and Supreme Court. The

Board’s actions are, accordingly, exempt from Sherman

Act liability under the state action doctrine of Parker v.

Brown. Moreover, the District Court expressly found

that the Board did not engage in the conduct that the

petitioners challenged as anticompetitive. Pet. App.

22-32.

CONCLUSION

For these reasons the petition for a writ of certiorari

should be denied.

Respectfully submitted,

E. OSBORNE AYSCUE, JR.*

JAMES G. MIDDLEBROOKS

SMITH HELMS MULLISS & MOORE

227 North Tryon Street

Charlotte, North Carolina 28202

(704) 372-9510

Attorneys for Respondents

April 1987 *Counsel of Record

APPENDIX

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APPENDIX A

N.C. GEN. STAT. § 84-15 (1985):

Creation of North Carolina State Bar as an agency of

the State.

There is hereby created as an agency of the State of

North Carolina, for the purposes and with the powers

hereinafter set forth, the North Carolina State Bar.

(1933, c. 210, s. 1.)

N.C. GEN. STAT. § 84-17 (1985):

Government.

The government of the North Carolina State Bar is

vested in a council of the North Carolina State Bar here-

inafter referred to as the “council”, which shall be com-

posed of 50 councilors exclusive of officers, except as

hereinafter provided, to be appointed or elected as here-

inafter set forth, the officers of the North Carolina State

Bar, who shall be councilors during their respective

terms of office, and each retiring president of the North

Carolina State Bar who shall be a councilor for one year

from the date of expiration of his term as president,

whose term of office expires at the 1973 annual meeting

or after. Notwithstanding any other provisions of the

law, the North Carolina State Bar shall have the power

and authority to acquire, hold, rent, encumber, alienate,

and otherwise deal with real or personal property in the

same manner as any private person or corporation, sub-

ject only to the approval of the Governor and the Council

of State as to the acquisition, rental, encumbering, leas-

ing and sale of real property. The North Carolina State

Bar Council is authorized and empowered in its discre-

tion to utilize the services of the Purchase and Contract

Division of the Department of Administration for the

procurement of personal property, in accordance with

the provisions of Article 3 of Chapter 143 of the General

Statutes. Notwithstanding any provisions of this Article

as to the voting powers of members, the council shall be

2a

competent to exercise the entire powers of the North

Carolina State Bar in respect of the interpretation and

administration of this Article, the acquisition, lease, sale,

or mortgage of property, real or personal, the seeking of

amendments hereto, and all other matters, except as oth-

erwise directed or overruled, as in G.S. 84-33 provided.

There shall be one councilor from each judicial district

and additional councilors as are necessary to make the

total number of councilors 50. The additional councilors

shall be allocated and reallocated by the North Carolina

State Bar every six years on the basis of the number of

the active members of each judicial district bar according

to the records of the North Carolina State Bar and in

accordance with a formula to be adopted by the North

Carolina State Bar, to insure an allocation based on law-

yer population of each judicial district bar as it relates to

the total number of active members of the State Bar.

In the event a judicial district is divided after any allo-

cation as hereinafter provided, then the total number of

councilors shall be increased until the next allocation, so

as to provide one councilor for each such district, unless

the district has one or more councilors who are members

of such judicial district. A councilor whose seat has been

eliminated due to a reallocation shall continue to serve on

the council until expiration of the remainder of the cur-

rent term.

In addition to the 50 councilors, there shall be three

public members not licensed to practice law in this or any

other state who shall be appointed by the Governor.

(1933, c. 210, s. 3; 1937, c. 51, s. 1; 1955, c. 651, s. 1;

1961, c. 641; 1973, c. 1152, s. 2; 1977, c. 841, s. 2; 1979, c.

570, ss. 1,2; 1981, c. 788, s. 3; 1985, ¢. 60, s. 1.)

3a

N.C. GEN. STAT. § 84-21 (1985):

Organization of council; publication of rules,

regulations and bylaws. _

Upon receiving notification of the election of a coun-

cilor for each judicial district, or, if such notification

shall not have been received from all said districts,

within 120 days after this Article shall have gone into

effect, the clerk of the Supreme Court of North Carolina

shall call a meeting of the councilors of whose election he

shall have been notified, to be held in the City of Raleigh

not less than 20 days nor more than 30 days after the

date of said call; and at the meeting so held the

councilors attending the same shall proceed to organize

the council by electing officers, taking appropriate steps

toward the adoption of rules and regulations, electing

councilors for judicial districts which have failed to elect

them, and taking such other action as they may deem to

be in furtherance of this Article. The regular term of all

officers shall be one year, but those first elected shall

serve until January 1, 1935. The council shall be the

judge of the election and qualifications of its own mem-

bers. When the council shall have been fully organized

and shall have adopted such rules, regulations and

bylaws, not inconsistent with this Article, as it shall

deem necessary or expedient for the discharge of its

duties, the secretary-treasurer shall file with the clerk of

the Supreme Court of North Carolina a certificate, to be

called the “certificate of organization,” showing the

officers and members of the council, with the judicial

districts which the members respectively represent, and

their post-office addresses, and the rules, regulations and

bylaws adopted by it; and thereupon the Chief Justice of

the Supreme Court of North Carolina, or any judge

thereof, if the court be then in vacation, shall examine

the said certificate and, if of opinion that the require-

ments of this Article have been complied with, shall

cause the said certificate to be spread upon the minutes

of the court; but if of opinion that the requirements of

4a

this Article have not been complied with, shall return the

said certificate to the secretary-treasurer with a state-

ment showing in what respects the provisions of this

Article have not been complied with; and the said certifi-

cate shall not be again presented to the Chief Justice of

the Supreme Court or any judge thereof, until any such

defects in the organization of the council shall have been

corrected, at which time a new certificate of organization

shall be presented and the same course taken as herein-

above provided, and so on until a correct certificate

showing the proper organization of the council shall

have been presented, and the organization of the council

accordingly completed. Upon (a) the entry of an order

upon the minutes of the court that the requirements of

this Article have been complied with, or (b) if for any

reason the Chief Justice or judge should not act thereon

within 30 days, then, after the lapse of 30 days from the

presentation to the Chief Justice or judge, as the case

may be, of any certificate of organization hereinbefore

required to be presented by the secretary-treasurer,

without either the entry of an order or the return of said

certificate with a_statement showing the respects in

which this Article has not been complied with, the organ-

ization of the council shall be deemed to be complete, and

it shall be vested with powers herein set forth; and the

certificate of organization shall thereupon forthwith be

spread upon the minutes of the court. A copy of the

certificate of organization, as spread upon the minutes of

the court, shall be published in the next ensuing volume

of the North Carolina Reports. The rules and regulations

set furth in the certificate of organization, and all other

rules and regulations which may be adopted by the coun-

cil under this Article, may be amended by the council

from time to time in any manner not inconsistent with

this Article. Copies of all such rules and regulations

adopted subsequently to the filing of the certificate of

organization, and of all amendments so made by the

council, shall be certified to the Chief Justice of the

Supreme Court of North Carolina, entered by it upon its

5a

minutes, and published in tlie next ensuing number of the

North Carolina Reports: Provided, that the court may

decline to have so entered upon its minutes any of such

rules, regulations and amendments which in the opinion

of the Chief Justice are inconsistent with this Article.

(1933, c. 210, s. 7.)

N.C. GEN. STAT. § 84-24 (1985):

Admission to practice.

The provisions of the law now obtaining with refer-

ence to admission to the practice of law, as amended, and

the rules and regulations prescribed by the Supreme

Court of North Carolina with reference thereto, shall

continue in force until superseded, changed or modified

by or under the provisions of this Article.

For the purpose of examining applicants and providing

rules and regulations for admission to the Bar including

the issuance of license therefor, there is hereby created

the Board of Law Examiners, which shall consist of 11

members of the Bar, elected by the council of the North

Carolina State Bar, who need not be members of the

council. No teacher in any law school, however, shall be

eligible. The members of the Board of Law Examiners

elected from the Bar shall each hold office for a term of

three years: Provided, that the members first elected

shall hold office, two for one year, two for two years,

and two for three years.

The Board of Law Examiners shall elect a member of

said Board as chairman thereof, and the Board may

employ an executive secretary and provide such assist-

ance as may be required to enable said Board to perform

its duties promptly and properly. The chairman and any

employees shall serve for such period as said Board may

determine.

The examination shall be held in such manner and at

such times as the Board of Law Examiners may

determine.

6a

The Board of Law Examiners shall have full power and

authority to make or cause to be made such examinations

and investigations as may be deemed by it necessary to

satisfy it that the applicants for admission to the Bar

possess the qualifications of character and general fit-

ness requisite for an attorney and counselor-at-law and

to this end the Board of Law Examiners shall have the

power of subpoena and to summons and examine wit-

nesses under oath and tw compel their attendance and the

production of books, papers and other documents and

writings deemed by it to be necessary or material to the

inquiry and shali also have authority to employ and pro-

vide such assistance as may be required to enable it to

perform its duties promptly and properly.

All applicants for admission to the Bar shall be finger-

printed to determine whether the applicant has a record

of criminal conviction in this State or in any other state

or jurisdiction. The information obtained as a result of

the fingerprinting of an applicant shall be limited to the

official use of the Board of Law Examiners in determin-

ing the character and general fitness of the applicant.

The Board of Law Examiners, subject to the approval

of the council shall by majority vote, from time to time,

make, alter and amend such rules and regulations for

admission to the Bar as in their judgment shall promote

the welfare of the State and the profession: Provided,

that any change in the educational requirements for

admission to the Bar shall not become effective within

two years from the date of the adoption of such change.

All such rules and regulations, and modifications,

alterations and amendments thereof, shall be recorded

and promulgated as provided in G.S. 84-21 in relation to

the certificate of organization and the rules and regula-

tions of the council.

Whenever the council shall order the restoration of

license to any person as authorized by G.S. 84-32, it shall

be the duty of the Board of Law Examiners to issue a

7a

written license to such person, noting thereon that the

same is issued in compliance with an order of the council

of the North Carolina State Bar, whether the license to

practice law was issued by the Board of Law Examiners

or the Supreme Court in the first instance.

Appeals from the Board shall be had in accordance

with rules or procedures as may be approved by the

Supreme Court as may be submitted under G.S. 84-21 or

as may be promulgated by the Supreme Court. (1933, c.

210, s. 10; c. 331; 1935, cc. 33, 61; 1941, c. 344, s. 6; 1947,

c. 77; 1951, c. 991, s. 1; 1953, c. 1012; 1965, cc. 65, 725;

1973, c. 13; 1977, c. 841, s. 2; 1983, c. 177.)

N.C. GEN. STAT. § 84-36 (1985):

Inherent powers of courts unaffected.

Nothing contained in this Article shall be construed as

disabling or abridging the inherent powers of the court to

deal with its attorneys. (1937, c. 51, s. 4.)

8a

APPENDIX B

UNPUBLISHED

United States Comt of Appeals

FOR THE FOURTH CIRCUIT

No. 84-1746

EDYTHE MAE ROGERS,

Appellant,

versus

SUPREME COURT OF VIRGINIA;

VIRGINIA BOARD OF BAR EXAMINERS;

Appellees.

Appeal from the United States District Court for the

Eastern District of Virginia, at Richmond. D. Dortch

Warriner, District Judge. (C/A No. 84-0027)

Submitted: November 2, 1984 Decided: August 22, 1985

Before MURNAGHAN, SPROUSE and WILKINSON, Circuit

Judges.

(Edythe Mae Rogers, Appellant Pro Se. Gerald L.

Baliles, James T. Moore, III, and Neil A. G. McPhie for

Appellees. )

9a

Per Curiam:

Edythe Mae Rogers, pro se, appeals the district court’s

dismissal of her suit filed pursuant to 42 U.S.C. 8§ 1981,

1983, and 1985, and 15 U.S.C. §§ 1 and 15. For the rea-

sons given below, we affirm the judgment.

Rogers sat for the Virginia Bar Examination in Febru-

ary 1980, July 1980, July 1982, and February 1983.

After each of these examinations she was informed that

she had not passed. After receiving the results of the

July 1980 and July 1982 examinations, she sought and

obtained a review of the essay portions of her exams. On

both occasions, the review consisted of an interview with

one of the bar examiners, during which she and the

examiner discussed her individual examination.

After the February 1983 examination, the Virginia

Board of Bar Examiners sent a form letter to all unsuc-

cessful examinees, indicating that a review of the essay

portion of the exam would be available only to those who

had failed the essay portion on two or more occasions

and had not previously had reviews of their examina-

tions. Rogers, according to the terms of this letter, was

not entitled to a review of her February 1983 examina-

tion. Rogers then petitioned the Supreme Court of Vir-

ginia to review the Board’s adverse determination as to

her February 1983 examination. The Supreme Court of

Virginia declined to do so.

Rogers complains that the Board’s review procedure is

constitutionally inadequate. She also contends that the

Virginia Supreme Court acted unconstitutionally when it

refused to review the adverse determination of the

Board. In addition, she claims that the state’s bar exami-

nation and review process violates the antitrust laws.

The district court, after finding that it had jurisdiction

over the matter, dismissed the complaint for failure to

state a claim upon which relief can be granted. Fed. R.

Civ. P. 12(b)(6).

10a

We think that the district court correctly decided that

it had jurisdiction, un the ground that Rogers was chal-

lenging the conduct of a non-judicial proceeding. District

of Columbia Court of Appeals v. Feldman, 460 U.S. 462

(1983).

As to the merits of the case, we disagree with parts of

the district court’s reasoning; however, because we think

that the district court could have dismissed the com-

plaint for other reasons, we will affirm its judgment.

The district court reasoned that, since there is no abso-

lute right to an appeal under the United States Constitu-

tion, Ross v. Moffitt, 417 U.S. 600, 606 (1974), and

because all appeals before the Supreme Court of Virginia

are discretionary, McCue v. Commonwealth, 103 Va. 870,

49 S.E.2d 623 (1905), the Virginia Supreme Court was

entitled to refuse to hear Rogers’ petition. We do not

agree with the district court’s characterization of Rogers’

petition as an appeal. Because the Virginia Supreme

Court has the ultimate responsibility for determining

admission to the Virginia bar, Woodard v. Virginia

Board of Bar Examiners, 454 F. Supp. 4 (E.D. Va.), affd,

598 F.2d 1345 (4th Cir. 1979), we think that, when that

court reviews or declines to review a decision of the bar

examiners as to an individual examinee’s status, the

court is acting as an administrative agency, rather than

as a court of appeals. Therefore, we find it appropriate to

determine whether or not Rogers’ allegations concerning

the review procedures of the court and the Board make

out a viable claim.

A state may not deny a person a license to practice law

in a manner that contravenes either the due process

clause or the equal protection clause, Schware v. Board

of Bar Examiners of New Mexico, 353 U.S. 232, 238-39

(1957). We do not think that Rogers’ complaint alleges a

violation of either of these constitutional provisions;

therefore, we believe that Rogers has failed to state a

claim under 42 U.S.C. § 1983.

lla

In regard to the due process issue, this Court has not

formulated precise guidelines for what process is due to

disappointed bar examinees. However, our review of the

law on this subject convinces us that the review proce-

dure provided by the Virginia Board of Bar Examiners

satisfies the requirements of due process. It is generally

held that the opportunity for reexamination provides an

adequate means of exposing grading errors. Tyler v. Vick-

ery, 517 F.2d 1089 (5th Cir. 1975), cert. denied, 426 U.S.

940 (1976); Whitfield v. Illinois Board of Law Examin-

ers, 504 F.2d 474 (7th Cir. 1974). Also, it has been

decided that due process does not require that a hearing

be granted to a bar examinee for the purpose of con-

testing the results of an examination, Tyler v. Vickery,

supra, or that an applicant be permitted to see his exami-

nation papers and compare them with model answers,

Whitfield v. Illinois, supra. One circuit has concluded

that the lack of an established procedure for review of

examinations by the state supreme court does not render

the state bar entrance rules unconstitutional. Feldman v.

State Board of Bar Examiners, 438 F.2d 699 (8th Cir.

1971).

In view of these precedents, and guided by the princi-

ple that the content of due process varies with each fac-

tual context, Hannah v. Larche, 363 U.S. 420 (1960), we

conclude that Virginia’s bar examination review proce-

dures are adequate under the due process clause. At the

time of Rogers’ complaint, the Virginia Board of Bar

Examiners permitted an examinee to take the bar exami-

nation five times and to obtain a review of failing exami- ©

nations twice. We do not think that due process requires

that a state bar examining agency provide an unlimited

number of opportunities to retake an examination, or an

unlimited number of reviews of failing examinations. We

do not think that an examinee has an absolute right to

have a failing examination reviewed by the state

supreme court. Therefore, we believe that Rogers has not

stated a claim of a due process violation.

12a

Rogers has failed to state an equal protection claim,

because she has not alleged with specificity that she, a

black female, has been treated differently from persons

who are not black or female.

Rogers’ claim under 42 U.S.C. § 1981 is not viable

because she has not alleged differential treatment on

account of her race.

Rogers’ claim under 42 U.S.C. § 1985 fails because she

has not alleged facts to indicate that the defendants con-

spired to deprive her of the equal protection of the laws

or equal privileges and immunities under the laws. Grif-

fin v. Breckinridge, 403 U.S. 88, 102-03 (1971).

Rogers has not stated a claim under 15 U.S.C. §§ 1 and

15 because any action by the defendants in this case falls

within the state action exemption to the antitrust laws.

Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

For the foregoing reasons, we affirm the district

court’s judgment. Because the dispositive issues recently

have been decided authoritatively, we dispense with oral

argument.

AFFIRMED.