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View Diary: It's not as sexy as waterboarding, but.... (93 comments)

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  •  First of all, bar admission is not an (0+ / 0-)

    administrative procedure.  It is a judicial procedure.

    Second, in the case you cited, Smith v. Mullarkey, the plaintiff first challenged the bar admission rules in his application to the Colorado Supreme Court.  That court rejected his claims.  He cannot appeal Colorado courts' decision to the US District Court.  He had a judicial proceedings where he submitted responses and objections to the recommedations of the Board, and the Board responded.  Colorado Supreme Court adjudicated the dispute, and he was bound by that adjudication.  He does not get a second bite at the apple in a US District Court.

    •  You're completely out to lunch here, Doc (0+ / 0-)

      Bar admission is and always has been quasi-judicial in nature.  Even the defendants in Smith v. Mullarkey didn't argue otherwise.

      Second, I just happen to have a copy of the Colorado Supreme Court's decision in the bar admission case handy (it's an exhibit in the federal case), and it says nothing of the sort.  All it says was that the motion for admission was denied.  Period.  Where the basis of a decision is not made clear, it "will not be a bar to a subsequent action on the same cause of action unless the sole possible ground for the decision is a determination on the merits." 50 C.J.S. Judgment § 728 (1997) (citations omitted).  As a bar applicant may be lawfully denied a license on putative grounds of moral, ethical, or mental unfitness to practice law, the Defendants failure to explain their decision to deny said bar applicant a license means that the decision cannot be res judicata with respect to his facial challenges.

      Although the applicant does not get to challenge the actual decision -- he never tried, but you wouldn't know that from the dishonestly-written decision -- he can allege that his right to procedural due process has been violated (a separate and distinct injury of constitutional magnitude; see Carey v. Piphus for an explanation); the Rooker-Feldman doctrine was never intended to stop that, because it would result in litigants never getting even one bite at the proverbial apple.  As the appellant's brief explains:

      Recognizing this principle, [the Tenth Circuit] recently stated that it "is convinced that the Rooker-Feldman doctrine does not bar a federal action when the plaintiff . . . lacked a reasonable opportunity to litigate claims in state court." Johnson v. Rodrigues, 226 F.3d 1103, 1110 (10th Cir. 2000). Other courts agree. E.g., Whiteford v. Reed, 155 F.3d 671, 674 (3d Cir. 2000), cert. denied, 467 U.S. 1210 (2000), Wood v. Orange County, 715 F.2d 1543 (11th Cir. 1983). This exception is necessary to "ensure that the state cannot block access to the federal court by refusing to allow a state court litigant to raise federal issues in state court." Lynk v. LaPorte Superior Court No. 2, 789 F.2d 554, 564 (7th Cir. 1986). The Eleventh Circuit explains:

      [I]interpreting Rooker to preclude a federal district court from considering an issue that the plaintiff had no reasonable opportunity to raise in a state court might pose due process problems. Such a harsh rule deprives the plaintiff of any forum, state or federal, where he has a reasonable opportunity to present his federal constitutional claims, a result arguably contrary to the requirements of due process. [Wood, 715 F.2d at 1547.]

      Aplt’s Opening Br. at 16-17; see also, Collins v. Kansas, 174 F.Supp.2d 1195 (D.Kan. 2001).

      Your interpretation of Rooker-Feldman (which is what the Tenth Circuit hung its hat on; res judicata wasn't even in play) would violate procedural due process, which is the beyond outer limits of what a court has the legal authority to do in its capacity as a rule-making body.  See, U.S.C. § 2072(b).  

      •  Rooker-Feldman doctrine is essentially (0+ / 0-)

        res judicata under a different name.  But that is besides teh point.  The point is, the plaintiff had his chance to argue procedural defects to the Colorado Supreme Court.  If he did so and lost, he is bound by that judgment.  If he did not do so, then he waived the objection.  In either case he cannot now seek redress in district courts.  If he wanted federal review of his claims he could have petitioned Supreme Court for certiorari.  He did not do so.  That ends the matter.  He is not free to come up with new theories and litigate them in new fora.  

        Your last citation supports my point.  Rooker-Feldman is only inapplicable if the petitioner had no chance to raise the issue in state court proceedings.  There is no indication that the Colorado Supreme Court denied the applicant the opportunity to argue his constitutional claims.  That he did not do so does not open the door to the federal courthouse.

        •  This is where I have an unfair advantage (1+ / 0-)
          Recommended by:
          Braising Kane

          There is no indication that the Colorado Supreme Court denied the applicant the opportunity to argue his constitutional claims.

          Actually, there is ... but you would never know it from the dishonestly-written opinion.  The gravamen of the complaint was that the applicant didn't get a hearing in which to advance his claim for admission, a clear procedural due process violation.  Moreover, an odd SCOTUS case (Wadmond) held that even if an admission statute was facially unconstitutional, the state bar could salvage it by applying it in a constitutional manner.  Now, you can see the problem: in this weird situation, you can't challenge the statute without being able to develop salient facts (i.o.w., that the state bar was not applying the offending statute in a constitutional manner) ... and you can't develop salient facts when you can't get a hearing.  As such, the Colorado Supreme Court necessarily denied the applicant an opportunity to argue his constitutional claims -- as a matter of definition!

          Ergo, res judicata cannot possibly apply.  The case gets even weirder, but if you see this, you'll see the problem with your presumptuous conclusion.

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