Lawrence v. Welch ( 2008 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0207p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
FRANK J. LAWRENCE, JR.,
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No. 07-1026
v.
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JANET K. WELCH, et al., -
Defendants-Appellees. -
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Appeal from the United States District Court
for the Western District of Michigan at Lansing.
No. 06-00134—Richard A. Enslen, District Judge.
Argued: November 29, 2007
Decided and Filed: June 3, 2008
Before: ROGERS and SUTTON, Circuit Judges; BERTELSMAN, District Judge.*
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COUNSEL
ARGUED: Dennis B. Dubuc, ESSEX PARK LAW OFFICE, South Lyon, Michigan, for Appellant.
Richard C. Kraus, FOSTER, SWIFT, COLLINS & SMITH, Lansing, Michigan, Denise C. Barton,
MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Lansing, Michigan, for Appellees.
ON BRIEF: Dennis B. Dubuc, ESSEX PARK LAW OFFICE, South Lyon, Michigan, for
Appellant. Richard C. Kraus, FOSTER, SWIFT, COLLINS & SMITH, Lansing, Michigan, Denise
C. Barton, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Lansing, Michigan, John
R. Oostema, SMITH, HAUGHEY, RICE & ROEGGE, Grand Rapids, Michigan, for Appellees.
BERTELSMAN, D. J., delivered the opinion of the court. SUTTON, J. (pp. 9-10), delivered
a separate concurring opinion, in which ROGERS, J., joined.
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OPINION
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BERTELSMAN, District Judge. Plaintiff-Appellant Frank J. Lawrence, Jr. (“Lawrence”)
appeals from the district court’s judgment dismissing his claims filed pursuant to 42 U.S.C. § 1983
against officials of the State Bar of Michigan in connection with their denial of his application for
a license to practice law. For the following reasons, we AFFIRM.
*
The Honorable William O. Bertelsman, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
1
No. 07-1026 Lawrence v. Welch, et al. Page 2
I. BACKGROUND
Frank J. Lawrence, Jr. graduated from an accredited Michigan law school and passed the
Michigan bar exam in 2001. He first applied for a license to practice law in Michigan the same year.
For reasons not relevant here, that application was ultimately withdrawn.
Between 2001 and 2004, a contentious relationship developed between Lawrence, the State
Bar of Michigan (“SBM”), and the Michigan Board of Law Examiners (“BLE”). In 2003, Lawrence
filed a federal lawsuit against the BLE, the SBM, certain of its officials and employees, and justices
of the Michigan Supreme Court. See Lawrence v. Chabot, 182 Fed. Appx. 442 (6th Cir. 2006).
Lawrence sought declarations that certain rules of the state bar were unconstitutional, and he alleged,
among other things, that the state bar had violated his First and Fourteenth Amendment rights in
processing his 2001 application for admission prior to its withdrawal. The district court dismissed
Lawrence’s claims on various grounds, and this court affirmed. Id.
In 2003, Lawrence also began operating a registered website called “StateBarWatch” on
which he actively criticized the SBM and BLE for alleged dishonesty within the Michigan attorney
licensing system. Joint Appendix (“J.A.”) at 17 (Compl. at ¶ 21).
On August 18, 2004, Lawrence reapplied for admission to the Michigan bar. On August 15,
2005, Lawrence was interviewed by three members of a SBM District Character and Fitness
Committee: David H. Baum (“Baum”), Randy A. Musbach (“Musbach”), and Sonal Hope Mithani
(“Mithani”). During this interview, Lawrence stated that he had little respect for the Michigan state
court system, and he expressed the view that the federal courts are the “guardians of the
constitution” and that the Michigan state court system fails adequately to protect individuals’
constitutional rights. J.A. at 19 (Compl. ¶ 24).
Following this interview, the District Committee forwarded to the SBM a Report and
Recommendation stating: “The Committee does not believe that the applicant, Frank J. Lawrence,
Jr., has shown by clear and convincing evidence that he currently possesses the requisite good
character and fitness to be recommended to the practice of law in this state.” J.A. 278. With respect
to the above opinions expressed by Lawrence during his interview, the report stated: “We are
concerned about providing a law license to someone who, even before he has handled his first case
as a member of the bar, has effectively written off such a huge component of the justice system.”
J.A. 280.
Following the issuance of this Report and Recommendation, Lawrence made several
communications to the employers of the members of the District Committee. He telephoned the
University of Michigan Law School, where Baum was the Assistant Dean of Student Affairs.
Lawrence told Baum’s assistant that he wanted to address the student bar association to let them
know how poorly he thought he had been treated. Lawrence also sent a letter to a board member
of the legal services organization for which Mithani was a director. In the letter, Lawrence stated
how poorly he had been treated and how Mithani had manipulated Lawrence’s stated views about
the state court system.
The District Committee recommendation was sent directly to the BLE, which voted to accept
the recommendation. Lawrence then requested a hearing.
A hearing was held before the BLE on April 20, 2006. Lawrence was questioned about his
communications with Baum’s and Mithani’s employers, but he denied that they were inappropriate.
J.A. 37-57. On June 14, 2006, the BLE issued a written opinion denying Lawrence’s application
for admission to practice law. Id. Lawrence did not seek review of this decision in the Michigan
Supreme Court.
No. 07-1026 Lawrence v. Welch, et al. Page 3
On September 6, 2006, Lawrence filed a complaint in the United States District Court for
the Western District of Michigan pursuant to 42 U.S.C. § 1983, naming as defendants John T. Berry,
executive director of the SBM, in his official capacity; Louis A. Smith, President of the BLE, in his
official capacity; and Baum, Musbach, and Mithani, all in their individual capacities. Lawrence
alleged that the BLE’s denial of his bar application violated his First and Fourteenth Amendment
rights. He sought declaratory and injunctive relief requiring defendants to issue him a license to
practice law. Second, and in the alternative, Lawrence sought prospective relief to prohibit
defendants from using his protected First Amendment activities as the basis for denying his future
applications for a Michigan law license. Finally, the third count sought damages from Baum,
Musbach, and Mithani for their alleged retaliation against Lawrence for the exercise of his First and
Fourteenth Amendment rights.
Lawrence also filed a motion for a temporary restraining order and preliminary injunction
requesting the same relief sought in the first two counts of the complaint.
Defendants filed motions to dismiss. In an opinion dated December 14, 2006, the district
court granted those motions and denied Lawrence’s motions for preliminary injunctive relief. J.A.
63. The district court held that Lawrence’s attack upon the BLE decision denying his bar
application was squarely barred by the Rooker-Feldman doctrine. Alternatively, the court held that
Lawrence’s challenge to the constitutionality of the bar admission process had been rejected by this
court in Lawrence’s prior appeal.
As to Lawrence’s second claim, the district court held that a “decision granting prospective
relief would necessarily imply that the hearing panel’s decision was improper and forbidden by the
constitution” and thus was equally barred by Feldman. J.A. 67-68. Further, the court held that, due
to the discretion involved in such future decisions, an injunction could not be “meaningfully crafted
or enforced.” J.A. 68. Third, because Lawrence had not yet filed another application for admission,
the district court held that the matter was speculative and not ripe for review. Id.
Finally, the district court held that Lawrence’s claims for damages against the individual
District Committee members were barred because those defendants were entitled to absolute quasi-
judicial immunity or, alternatively, qualified immunity. Id.
Lawrence timely appealed.
II. ANALYSIS
A. The Rooker-Feldman Doctrine: Counts I and II
This court reviews de novo the district court’s ruling that the Rooker-Feldman doctrine
precluded subject matter jurisdiction. McCormick v. Braverman, 451 F.3d 382, 389 (6th Cir. 2006)
(citation omitted), cert. denied, 128 S. Ct. 41 (2007).
The Rooker-Feldman doctrine is based on two United States Supreme Court decisions
interpreting 28 U.S.C. § 1257(a). See District of Columbia Court of Appeals v. Feldman, 460 U.S.
462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). Section 1257(a) states that a final
judgment of the highest court of a state may be reviewed by the United States Supreme Court by writ
of certiorari. The Rooker-Feldman doctrine is based on the negative inference that, if appellate court
review of such state judgments is vested in the Supreme Court, then it follows that such review may
not be had in the lower federal courts. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
280, 283-84 (2005).
No. 07-1026 Lawrence v. Welch, et al. Page 4
In Exxon, the Supreme Court recently summarized the Rooker-Feldman doctrine:
The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind from
which the doctrine acquired its name: cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the district
court proceedings commenced and inviting district court review and rejection of
those judgments.
Id. at 284.
In the wake of Exxon, this circuit has “distinguished between plaintiffs who bring an
impermissible attack on a state court judgment – situations in which Rooker-Feldman applies – and
plaintiffs who assert independent claims before the district court – situations in which Rooker-
Feldman does not apply.” Pittman v. Cuyahoga County Dep’t of Children and Family Serv., 241
Fed. Appx. 285, 287 (6th Cir. 2007) (citing McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir.
2006)).
In McCormick, we explained that the pertinent inquiry after Exxon is whether the “source
of the injury” upon which plaintiff bases his federal claim is the state court judgment:
The inquiry then is the source of the injury the plaintiff alleges in the federal
complaint. If the source of the injury is the state court decision, then the Rooker-
Feldman doctrine would prevent the district court from asserting jurisdiction. If
there is some other source of injury, such as a third party’s actions, then the plaintiff
asserts an independent claim.
....
To the extent that Defendants argue that these claims, even though they do
not assert injury from the state court judgments, are “inextricably intertwined” with
those judgments so as to fall within the reach of Rooker-Feldman, that argument
must fail. We first note that it was this exact language that was the source of the pre-
Exxon Mobil woes as to the application of Rooker-Feldman. In addition, the
Supreme Court used the phrase “inextricably intertwined” in Feldman to describe a
claim where the plaintiff asserted an injury from the state court judgment itself . . . .
In Exxon, the Supreme Court implicitly repudiated the circuits’ post-Feldman use of
the phrase “inextricably intertwined” to extend Rooker-Feldman to situations
[where] the source of the injury was not the state court judgment. In short, the
phrase “inextricably intertwined” only describes the conclusion that a claim asserts
an injury whose source is the state court judgment, a claim that is thus barred by
Rooker-Feldman.
McCormick, 451 F.3d at 394-95 (emphasis added).
Applying this distinction, we concluded in McCormick that plaintiff’s claims that certain
defendants committed fraud and misrepresentation in the course of state probate proceedings did not
allege an injury caused by the state court judgment and thus were not barred by Rooker-Feldman.
Id. at 392. In contrast, however, plaintiff’s claim that the probate court’s order of receivership
violated her constitutional rights because it effected an unlawful seizure was barred because “the
count alleges that the state court order itself was illegal and harmed Plaintiff.” Id. at 395.
We have applied this “source of the injury” analysis in other recent cases where Rooker-
Feldman was raised as a bar to the district court’s jurisdiction. See Pittman, 241 Fed. Appx. at 288
(claims of improper conduct by employees of family services agency not barred by Rooker-Feldman
No. 07-1026 Lawrence v. Welch, et al. Page 5
because their actions were independent from juvenile court’s custody decision; plaintiff did not seek
reversal of custody order); Loriz v. Connaughton, 233 Fed. Appx. 469, 474-75 (6th Cir. 2007)
(landowners’ claims challenging zoning decisions as unconstitutional barred by Rooker-Feldman;
district court could not grant requested relief without reviewing decisions of state agency and courts
and determining that they were improper); Brown v. First Nationwide Mortgage Co., 206 Fed. Appx.
436, 439-40 (6th Cir. 2006) (mortgagor’s claims against individuals involved in mortgage
foreclosure proceedings not barred; source of injury was defendants’ conduct independent from
foreclosure decree itself).
1. Count I
It is clear that Lawrence’s claim that defendants violated his First and Fourteenth
Amendment rights by denying his most recent application for admission to practice law in Michigan
is a direct attack on a state court judgment and thus barred by Rooker-Feldman. Lawrence explicitly
seeks a declaration that defendants’ decision “impermissibly impinges upon protected federal rights
and that Plaintiff is entitled to a license to practice law.” J.A. 28 (Compl. ¶ 56). As the Supreme
Court held in Feldman, the federal courts are without jurisdiction to entertain such a claim. District
of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 487-88 (1983).
Likewise, this circuit has held that similar federal challenges to the denial of bar applications
are barred by Rooker-Feldman. See Raymond v. Moyer, 501 F.3d 548, 554 (6th Cir. 2007); Dubuc
v. Michigan Bd. of Law Examiners, 342 F.3d 610, 618 (6th Cir. 2003).
2. Count II
Lawrence’s second claim – in which he seeks prospective injunctive relief barring defendants
from denying his future bar applications on allegedly unlawful First Amendment grounds – presents
a more difficult question. The first issue raised with respect to this claim is the question of
ripeness.1
In Lawrence’s first appeal to this court, Lawrence v. Chabot, 182 Fed. Appx. 442 (6th Cir.
2006), the court held that Lawrence’s First Amendment as-applied challenge was not ripe because
he “had not been denied admission to the bar.” Id. at 455. “No injury thus had occurred or was
‘certainly impending.’” Id.
Now, Lawrence has been denied admission to the bar on grounds which, he asserts, run afoul
of the First Amendment. Lawrence has indicated a clear intent to reapply and, as the record reflects,
has persisted in the same expressive activity that allegedly resulted in the first denial. Defendants,
likewise, have clearly indicated that they consider such activity to render Lawrence of unfit
character for admission.
It would, thus, seem that: (1) it is likely that Lawrence will again be denied admission if he
engages in the same allegedly protected activity, and that he has a “credible fear of enforcement;”
(2) the factual record is perhaps developed as sufficiently as it can be for purposes of a pre-
enforcement challenge, and it is certainly developed now in a way that it was not at the time of the
Lawrence v. Chabot decision; and (3) Lawrence is exposed to hardship in that the alleged violation
of his First Amendment rights is causing him to be unable to practice in his chosen profession. See
generally Norton v. Ashcroft, 298 F.3d 547, 554 (6th Cir. 2002).
No doubt there are contingencies that may mean that the anticipated harm will not come to
pass. Given that the denial of the license to practice law is an ad hoc decision by a body (the BLE)
1
The concurrence that follows constitutes the majority opinion on this issue of ripeness.
No. 07-1026 Lawrence v. Welch, et al. Page 6
whose composition no doubt changes over time, it could be that a future application will be granted
notwithstanding Lawrence’s expressive activity.
Nonetheless, weighing these considerations and applying the relaxed standard of ripeness
under First Amendment jurisprudence, Lawrence’s second claim for relief is ripe for consideration.
Unfortunately for Lawrence, while ripe, this second claim is also barred by Rooker-Feldman.
At first blush, this may seem not to be the case given that no future application – and thus no denial
– has occurred.
However, examined for its substance rather than its form, Lawrence’s second claim for relief
is premised on the same alleged injury as his first cause of action, i.e., defendants’ denial of his bar
application on the basis of his allegedly protected First Amendment activities. Lawrence’s
complaint makes this explicit: “Therefore, Plaintiff relies upon the allegations in this Complaint
relating to how Plaintiff’s bar application was processed, to support this Count for prospective
relief.” J.A. 29 (Compl. ¶ 58).
In other words, the district court could not have concluded that Lawrence was entitled to the
prospective relief he seeks – that is, an order enjoining defendants from doing what they did before
– without first finding that defendant’s previous decision was unconstitutional. Put another way,
while the redress Lawrence seeks in his second cause of action is forward-looking, the claim is
nonetheless premised on the same past injury: the allegedly unlawful reasoning used to deny him
bar admission in 2006.
In Loriz v. Connaughton, 233 Fed. Appx. 469 (6th Cir. 2007), cert. denied, 128 S. Ct. 1241
(2008), we affirmed the district court’s ruling that the plaintiffs’ claims for damages as well as
declaratory and prospective injunctive relief were barred by Rooker-Feldman. The plaintiffs there
owned a farm in Ohio, and the owners of an adjacent lot applied for a zoning variance in order to
operate a commercial bird hunting operation, including a shooting range. Id. at 470. After that
application was approved by the Ohio Department of Natural Resources Division of Wildlife and,
ultimately, the Butler County Board of Zoning Appeals, the plaintiffs appealed to the Butler County
Court of Common Pleas. That court remanded the matter for further hearings and findings after
which the zoning board and Court of Common Pleas again approved the conditional use permit for
operation of the shooting range. Id. at 471.
After an unsuccessful appeal to the Ohio Court of Appeals, the plaintiffs filed suit in federal
court against various state officials and others alleging, among other things, that the approval and
operation of the shooting range constituted a taking of their property in violation of the Fifth
Amendment. The district court dismissed the action, in part, due to lack of jurisdiction based on
Rooker-Feldman, finding that the action essentially sought federal district court review over the
decisions of the Ohio courts upholding the zoning permits. Id. at 474.
On appeal, this court affirmed, not only as to plaintiffs’ claim for damages, but also as to
their request for a permanent injunction barring the zoning officials from permitting such shooting
range operations in the future:
Clearly, all of the Lorizes’ claims were inextricably intertwined with the state court
decisions. In order for the district court to grant the requested declaratory or
injunctive relief, or to award damages, the district court would be forced to review
the decisions of the Ohio Division of Wildlife, the BZA, the Ohio Court of Common
Pleas, and the Ohio appellate court. Moreover, the relief the Lorizes seek – a
declaration that the state courts reached an improper result based on a faulty
application of the law – is not a general challenge to the constitutionality of the state
No. 07-1026 Lawrence v. Welch, et al. Page 7
law, but rather a specific grievance over specific decisions. These claims are exactly
the type the Rooker-Feldman doctrine intended to bar in the lower federal courts.
Id. at 475 (emphasis added).
Other circuits have applied similar reasoning to conclude that claims seeking injunctive relief
are barred by Rooker-Feldman if they necessarily require the federal court to determine that a state
court judgment was erroneously entered. See Mann v. Boatright, 477 F.3d 1140, 1147 (10th Cir.
2007) (holding that plaintiffs’ prayer for permanent enjoinment of allegedly unconstitutional probate
order barred by Rooker-Feldman), cert. denied, 128 S. Ct. 897 (2008); Mickens v. Tenth Judicial
Circuit, 181 Fed. Appx. 865, 874-75 (11th Cir.) (noting that “the Rooker-Feldman doctrine can bar
injunctive relief as well as other forms of relief” and holding that district court lacked jurisdiction
over plaintiffs’ request for preliminary injunction to enjoin mortgage foreclosure sale of their
property), cert. denied, 127 S. Ct. 834 (2006).
Finally, we note that Lawrence’s second cause of action is not outside the scope of Rooker-
Feldman by virtue of being a “general challenge” to the constitutionality of a state law or rule. See
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 483-86 (1983). Instead,
Lawrence’s second claim challenges only defendants’ application of their admission criteria to him.
J.A. 29-30 (Compl. ¶ 61). For this reason, Lawrence’s claim is distinguishable from the general
challenges to the constitutionality of state court rules in Dubuc v. Michigan Bd. of Law Examiners,
342 F.3d 610 (6th Cir. 2003), and Fieger v. Ferry, 471 F.3d 637 (6th Cir. 2006).
Thus, because the prospective relief sought by Lawrence can be predicted only on a
determination that the prior decision denying him bar admission was improper, his second claim is
likewise barred by the Rooker-Feldman doctrine.
B. Count III
In Count III of his complaint, Lawrence seeks damages from individual defendants Baum,
Musbach, and Mithani for their alleged retaliation against him by issuing an unfavorable character
and fitness recommendation based on his expressed views of the Michigan court system. The
district court dismissed this claim for failure to state a cause of action pursuant to Fed. R. Civ. P.
12(b)(6).
We review de novo the district court’s dismissal for failure to state a claim under Rule
12(b)(6). In re Ferro Corp. Derivative Litig., 511 F.3d 611, 617 (6th Cir. 2008) (citation omitted).
We conclude that the district court properly found that these three defendants, as members
of the State Bar of Michigan’s Character and Fitness Committee – and thus agents of the Board of
Law Examiners and the Michigan Supreme Court – are entitled to absolute immunity for their
actions in investigating Lawrence’s character and fitness to practice law and in making
recommendations about the same. See Thomas v. Michigan State Bd. of Law Examiners, No. 94-
1346, 1994 WL 659148, at *2 (6th Cir. Nov. 22, 1994) (individual members of Michigan BLE
entitled to absolute judicial immunity from civil rights action for damages arising out of denial of
plaintiff’s admission to state bar); Mayfield v. Francks, No. 92-1012, 1992 WL 73151, at *1 (6th
Cir. April 10, 1992) (individuals who conducted character and fitness investigation as part of
plaintiff’s application to practice law in Michigan are absolutely immune from claim for monetary
damages); Sparks v. Character and Fitness Comm. of Ky., 859 F.2d 428, 434 (6th Cir. 1988) (actions
taken by members of Kentucky Committee on Character and Fitness in making unfavorable
recommendation about plaintiff’s fitness to practice law are quasi-judicial, entitling defendants to
absolute immunity); Otrompke v. Chairman of the Comm. on Character and Fitness for the First
Judicial Dist. of Illinois, No. 03 C 7198, 2005 WL 3050618, at *2 (N.D. Ill. Nov. 7, 2005)
(dismissing plaintiff’s claim against members of character and fitness committee of Illinois bar
No. 07-1026 Lawrence v. Welch, et al. Page 8
alleging violation of procedural due process resulting in their unfavorable recommendation as to his
bar application because defendants are entitled to quasi-judicial absolute immunity); Julien v.
Comm. of Bar Examiners for the Practice of Law, 923 F. Supp. 707, 714-15 (D.V.I. 1996) (similar).
The reasoning of the above cases makes clear that, in conducting the character and fitness
examination which is integral to the process of determining whether an applicant is fit to practice
law, these individual defendants, acting under the authority of the Michigan Supreme Court, were
performing a judicial or quasi-judicial function for which they are entitled to absolute immunity.
See Sparks, 859 F.2d at 433-34.
For this reason, our dicta in Dubuc v. Michigan Bd. of Law Examiners, 342 F.3d 610, 619
n. 4 (6th Cir. 2003), that individual members of the Michigan BLE were not entitled to judicial
immunity is distinguishable. There, immunity was denied as to defendants’ enforcement of
allegedly unconstitutional bar admissions rules regarding a waiting period for reapplication. This
ruling was premised on the Supreme Court’s holding that enforcement of bar rules is not a judicial
function. See Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719,
734-37 (1980). That holding, however, does not alter the conclusion that determining a particular
individual’s qualifications and fitness for admission to practice law is an inherently judicial act. See
Sparks, 859 F.2d at 434.
III. CONCLUSION
For these reasons, we hold that the district court correctly dismissed Lawrence’s claims. We
AFFIRM.
No. 07-1026 Lawrence v. Welch, et al. Page 9
______________________
CONCURRENCE
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SUTTON, Circuit Judge, concurring. I wholeheartedly concur in Judge Bertelsman’s
opinion with respect to his resolution of Lawrence’s first and third claims. I write separately to
explain my preference for resolving Lawrence’s second claim, which seeks to enjoin the Board from
denying a second Bar application that Lawrence has yet to file. As to that claim, we ought to affirm
the dismissal of the claim on ripeness, not Rooker-Feldman, grounds because (1) it is not “fit[] . . .
for judicial decision” and (2) “the hardship to the parties of withholding court consideration” is
minimal. Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967).
Is the claim fit for judicial review? No, for several reasons. At this juncture, we do not
know whether Lawrence will file another Bar application. If he does file a second application, we
do not know what he will say in completing the application, how he will respond to questioning in
the character and fitness hearing and whether the Board will grant or deny him admission. And if
the Board opts to deny the second application, we do not know why it will do so. See Toilet Goods
Ass’n v. Gardner, 387 U.S. 158, 163 (1967). In the absence of concrete facts regarding the Board’s
affirmative or negative assessment of Lawrence’s potential application, any resolution of
Lawrence’s claim—indeed even the assumption that Lawrence will be injured—is necessarily
premature. See Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 807 (2003).
Nor has Lawrence shown that he will suffer hardship if he must wait until he files, and the
Board rejects, a second application before he seeks to vindicate his First Amendment rights. In the
interim, the State has not put his feet to the fire—forcing him to take immediate action or else face
the risk of civil or criminal penalties. See Abbott Labs., 387 U.S. at 153 (finding hardship “where
a regulation requires an immediate and significant change in the plaintiffs’ conduct of their affairs
with serious [criminal and civil] penalties attached to non-compliance”); compare id., with Toilet
Goods, 387 U.S. at 164–65. The only hardship he identifies is the likelihood that, if the Board
denies his second application, he will be forced to litigate his claim initially in the Michigan state
courts, which, he says, “fail[] adequately to protect individuals’ constitutional rights.” Compl. ¶ 24.
That, however, is not the type of immediate hardship that makes a claim justiciable, and indeed he
cites no case law saying that it is. Even if he must file a second claim in the state courts, that does
not mean he must end his challenge there, as the United States Supreme Court has certiorari
jurisdiction over federal questions resolved by the state courts. See 28 U.S.C. § 1257(a). In the end,
while “[t]he ripeness doctrine” may “dovetail neatly” with other doctrines (like Rooker-Feldman)
that limit lower-federal-court review of state court decisions, that reality by itself gives us no warrant
to sidestep the traditional ripeness requirements for bringing a claim in federal court. Reno v.
Catholic Soc. Servs., 509 U.S. 43, 60 (1993).
The ripeness doctrine, it is true, “is somewhat relaxed in the First Amendment context,”
Norton v. Ashcroft, 298 F.3d 547, 554 (6th Cir. 2002), but even that does not help Lawrence. To
prevail, Lawrence must show not only that the Board will deny him admission to the Bar but also
that it will do so based on speech protected by the First Amendment. Because we do not know what
action the Board will take on a potential second application—much less the reasons it will give for
that action—we have no basis for applying a relaxed ripeness standard here. See id. at 554–55
(holding that, even under the “somewhat relaxed” ripeness standard of the First Amendment, a claim
is not ripe for review where the plaintiffs could not show a credible fear of enforcement, where the
factual record was insufficient to permit review and where withholding judicial relief would not
cause undue hardship); see also, e.g., Marchi v. Bd. of Coop. Educ. Servs., 173 F.3d 469, 478–79
(2d Cir. 1999) (holding that, even under the relaxed ripeness standard of the First Amendment,
claims were not ripe for review where the claims were “all highly fact-specific and, as of yet,
No. 07-1026 Lawrence v. Welch, et al. Page 10
hypothetical” and where the plaintiff could not establish a credible fear of enforcement); Pearson
v. Leavitt, 189 F. App’x 161, 163 (4th Cir. June 23, 2006) (holding that, even under the “relaxed”
ripeness standard of the First Amendment, “[i]f certain critical facts that would substantially assist
the court in making its determination are contingent or unknown, the case is not ripe for judicial
review”).