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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1986%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1987
- **Citation:** 481 U.S. 1038

## Text

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
BPP EICDIA o.oo sccinsciccssccccasircsecssinadconenneaaemnnntns
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
BB, WBE... necks ikccdemowiooncean

ii.

la

la
la
3a
5a

7a

8a

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

EE I FEY srinisicavscacipisicdnssnnnicaene
er ial dasinssacnceanpentaenbentanioen
ar ro ssc enneniaemanbaansiene eichins
i Sicahpisitsnsiicsnehneraokendtnnuanenannnc
ai on cepeniocnndeneanabaedscscntosncias
Be FTG, Be ls OE BOG ovcncenscstccssccccssscscccses
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

pe “4 ; " .
je v~ t
} -
, \ i i
“5 V4 ‘ 1 , "
% Ae | 4
: :
: - * c ae N hea) vi
¢ j i

oan

Fite=

anetade

la

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1986%3A2. Public record. Not legal advice.