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BLE members dismissed from suit challenging notice, bar exam constitutionality

January 16, 2017

A federal judge has declined to hear a recent law school graduate’s case against the members of the Indiana Board of Law Examiners, citing precedent that requires federal courts to abstain to from hearing certain ongoing state proceedings. But the judge did require the state to respond to the plaintiff’s claims that portions of the bar exam are unconstitutional.

In May 2015, Mark A. Brooks-Albrechtsen moved to Indiana from Ohio and planned to take the July 2015 bar exam. On his application to the BLE, Brooks-Albrechtsen disclosed a sealed misdemeanor conviction and a prior employment termination, prompting board members to summon him for an inquiry into his character and fitness. The board eventually approved Brooks-Albrechtsen to take the bar exam, but he failed.

The recent graduate then applied to take the February 2016 bar and noted on his application that he was self-employed at Albrechtsen Law, a limited liability corporation at which he drafted complaints, memos and briefs and performed legal research for licensed attorneys. The board once again summoned plaintiff to a hearing “to allow it to make a determination on his application.” When Brooks-Albrechtsen asked for more information, he was only told that board members had questions about his application.

Brooks-Albrechtsen then sent a letter to Indiana Chief Justice Loretta Rush asking that Admission and Discipline Rule 12 Section 5 “be amended to require a more detailed noticed that would allow individuals required to appear before the Board to better prepare for their appearances.” Rush responded and said she had reached out to the BLE with his concerns, and at his hearing on Feb. 12, the board discussed the letter with Brooks-Albrechtsen, telling him that they believed his statement to Rush saying he had no idea why the board wanted to see him was false.

Further, BLE members told the bar applicant that his self-employment was in violation of Rule of Professional Conduct Guideline 9.1, which holds that independent non-lawyers are prohibited from performing non-lawyer assistant services. As a result, the board issued a verbal decision prohibiting Brooks-Albrechtsen from taking the February 2016 bar and further prohibiting him from reapplying until February 2018.

Brooks-Albrechtsen then filed an Emergency Petition for Writ of Prohibition seeking to have the BLE’s decision overturned because he believed the board’s verbal denial was a final decision. However, the Indiana Supreme Court denied his petition, writing that it was “procedurally premature” because the verbal decision was not a final decision. Judge William T. Lawrence of the U.S. District Court for the Southern District of Indiana agreed, writing in an opinion Friday in Mark A. Brooks-Albrechtsen v. Individual Members of the Indiana State Board of law Examiners, et al., 1:16-cv-391, that there are several more steps that have to be taken before the decision can be considered final.

First, the BLE would be required to send written notice of its decision to Brooks-Albrechtsen, which it did on Feb. 15. Then, Brooks-Albrechtsen had the right to request a hearing, which was served to the board on Feb. 29. After he did not receive a response, Brooks-Albrechtsen said he assumed the board had declined to allow him a hearing, but Lawrence wrote Friday that the board’s silence thus far “simply means that the action is still pending.”

After a final report is compiled, the BLE would be required to send a notice of its decision to Brooks-Albrechtsen, and that notice would constitute a final decision.

Brooks-Albrechtsen filed his federal lawsuit alleging violations of his equal protection and due process rights prior to requesting a hearing, so Lawrence wrote Friday that, “In view of the Plaintiff’s later-submitted hearing request, it is clear to the Court that the Plaintiff knew at the time that his filed his lawsuit that no final action had been taken by the Board and, thus, an ongoing state proceeding existed.”

Under the 1971 federal case of Younger v. Harris, 401 U.S. 37, Lawrence wrote that an “ongoing state proceeding” requires him to abstain for hearing Brooks-Albrechtsen’s case against the individual members of the BLE in their official capacities.  The Younger abstention requirements maintain that a federal judge must abstain from hearing a case if ongoing state proceedings are judicial in nature, implicate important state interest and “offer an adequate opportunity for review of constitutional claims, so long as no extraordinary circumstances exist which would make abstention inappropriate.”

Not only does Brooks-Albrechtsen’s case meet the ongoing state proceeding requirements for abstention, the federal judge wrote that the case failed to live up to the “extraordinary circumstances” exception because the board’s actions were not “motivated by a desire to harass or … conducted in bad faith” and because Brooks-Albrechtsen did not demonstrate “an extraordinarily pressing need for immediate equitable relief to avoid irreparable injury.”

Thus, Lawrence dismissed the case against the individual members of the BLE without prejudice and ordered that their names removed as defendants. The clerk was further ordered to amend the docket to show the State ex rel. Indiana Supreme Court as the only remaining defendant.

However, Brooks-Albrechtsen’s lawsuit also challenged the constitutionality of three portions of the Indiana Bar Exam – the Multistate Bar Exam, Multistate Performance Test and the Indiana Essay Examination – “because they are unreasonable and fail to serve a substantial relation to the purpose sought to be served – to determine lawyerly qualifications – and therefore, amount to an unlawful restraint on Plaintiff’s liberty interest to pursue his lawful calling and property interest in obtaining the need-based benefit of employability.”

Further, he challenged the constitutionality of Admission and Discipline Rule 2.1, which board members used to deny Brooks-Albrechtsen’s request to receive legal intern certification after it prohibited him from taking the bar. Those claims are not subject to Younger abstention, Lawrence wrote, so the judge did not dismiss the portions of the case related to those counts. The state has 21 days from Friday to respond to claims regarding the constitutionality of the bar exam and Admission and Discipline Rule 2.1.

Lawrence noted that it’s not clear whether Brooks-Albrechtsen has standing to bring his bar exam claims given that a ruling in federal court that the bar exam is unconstitutional would not provide him with redress in light of the fact that he would still not be eligible to become a member of the Indiana bar, because he has not satisfied the character and fitness requirement, which is independent of the bar exam.
 

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