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Seek A Pleasant Peninsula in Michigan, Seek Free Speech Elsewhere

The latest copy of the American Bar Association Journal (ABAJournal) just arrived in my office. I was planning to write about something I read in the Letters to the Editor there concerning prosecutors who attempt — and possibly succeed — at murder because of their single-minded dedication to winning at all costs, forgetting their alleged duty to seek only justice.[1]

Trying to find you a link to the ABAJournal website, though, I ran across this interesting article concerning a law school graduate, Frank J. Lawrence, Jr., who was denied a license to practice law because he said mean things to the people responsible for approving his application.

For the moment, let’s sidestep the possibility that the law school graduate in question probably should be denied a license on the basis of stupidity. I mean, talk about biting the hand that feeds you! It just doesn’t make sense to badmouth the people who hold your career in their hands while you’re asking permission to work in your chosen profession.[2]

At any rate, the Michigan State Bar has determined that people who wish to become attorneys are not entitled to their own opinions, or, more accurately, they’re not entitled to express them. At least not to the State Bar.

There was a time, or so I’ve heard, when intelligent human beings believed “the more speech, the better.” This quaint idea has sometimes been lauded as necessary to the marketplace of ideas. We thought such things because, for example, the more ideas in the marketplace, the greater the likelihood of improving our lives. And freedom of speech was at least partly written into the United States Constitution because we recognized that some ideas might be unpopular. Rather than risk damage to the marketplace, our nation’s Founders decided on the liberal — yep, it was liberal and revolutionary — idea of protecting speech.

As long as there have been marketplaces, however, there have been robbers, thieves, or just generally hateful people who have wanted to gain a monopoly over the market.

This is not new. As the Wikipedia article linked above notes, “The Socratic Method is the pedagogical embodiment of the ‘Marketplace of Ideas.'” And let’s not forget what happened to Socrates.[3]

Fortunately — for Lawrence, at least — the Michigan State Bar didn’t adopt the Athenian Method. Instead, they stated that,

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.[4]

Naturally, “someone who…has effectively written off such a huge component of the justice system” cannot have the requisite character to work within such a system to try to change what he feels is wrong. Isn’t the rule right-thinking[5] people follow these days something like, “America, Love It Or Leave It”? If you think there’s something wrong with the justice system, then obviously you can’t join that system and try to work within it to correct those problems. Your belief that the system has problems means exactly one thing: You don’t belong.[6]

Both the ABAJournal article and the blog “How Appealing,” which gets the final word in the ABAJournal article, gave me the impression that the Sixth Circuit Court of Appeals for the United States approved of the denial of the license. Maybe that’s not what those articles meant to do, but that’s how I read them. Actually, though (in case I’m not the only one who got that impression), the Sixth Circuit threw out the suit because it violated the so-called Rooker-Feldman doctrine.

Without giving a detailed history of the doctrine, suffice it to say that,

Rooker-Feldman is shorthand for the proposition that lower federal courts possess no power whatever to sit in direct review of state court decisions.[7]

If the attorneys for Lawrence had thought ahead to the possibility that Lawrence had correctly assessed the problem with the Michigan courts, they might have taken another approach. The first option for avoiding a Rooker-Feldman challenge was probably not available, but at least one other was.[8]

Even after the Michigan courts decided that freedom of speech is denied to Bar applicants, Lawrence’s attorneys could have gone to federal court on different grounds which would have prevented the Sixth from tossing the suit. The United States District Court for the Eastern District of Pennsylvania noted that:

As the [U.S. Supreme] Court explained in Exxon Mobil, a district court is not divested of subject-matter jurisdiction simply because a party attempts to litigate in federal court a matter previously litigated in state court.[9]

What’s needed then is an approach that does not require the District Court to reconsider the state court judgement.[10] But, again, this option wasn’t really available, because the denial of admission to the Michigan State Bar based upon statements Lawrence made to evaluators was itself the problem; there was no reliance upon an independent rule capable of a constitutional challenge.

The one and only real avenue of attack here was that Lawrence could simply have appealed the state court decision to the United States Supreme Court.[11] For whatever reason, that was not done.

Maybe next time.

Until then, any applicants to the Michigan State Bar had best take heed. In Michigan, at least, those who want to be attorneys may argue for the free speech rights of others. They just can’t exercise those rights themselves.



Footnotes
  1. I promise to get to that another day.
  2. I’m sure somewhere a judge is breathing a sigh of relief that the Founding Fathers forgot to include a “freedom to work in the field of your choice” clause into the First Amendment. That’s one less fundamental right we have to find our way around.
  3. Hint: He was killed for saying things the political leaders of Athens did not like.
  4. Lawrence v. Welch, 2008 U.S. App. LEXIS 11768 (6th Cir. Mich. 2008) at 4; Howard J. Bashman, How Appealing (June 3, 2008, 10:34 a.m.). For those who don’t have access to Lexis, you can find this opinion at http://www.ca6.uscourts.gov/opinions.pdf/08a0207p-06.pdf, at least as of this writing.
  5. Pun intended.
  6. Isn’t this the rationale behind the President’s desire for the authority to declare American citizens to be “enemy combatants” who are not entitled to constitutional protections?
  7. This quote is taken from Headnote 7 of Mangan v. Brierre, 2007 U.S. Dist. LEXIS 9390 (E.D. Pa. Feb. 9, 2007) on the Lexis research site. For those without access to Lexis, the Mangan v. Brierre opinion, without the Lexis headnotes, etc., is available at http://vlex.com/vid/35251327 (Update 9/26/2016: link broken), or it was as of the writing of this article. For more information on the Rooker-Feldman doctrine, see the relevant Wikipedia articles. You can, of course, do the even deeper research of reading the cases themselves, if you wish.
  8. The first option would have to be a direct constitutional challenge to some rule the Bar followed in making their decision. See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 483 (U.S. 1983). In other words, instead of challenging a “final judgment of a state court in judicial proceedings,” they would have to launch a direct attack on the constitutionality of some rule the Bar and/or the state court had used in making their decision. Id. at 482-483. The problem here, of course, was that it was an arbitrary decision of the people with whom Lawrence spoke, and not some policy or rule, that caused the problem. Thus, the only thing open to attack was either their decision, or the more general rule that authorized them to make decisions in the first place. It is highly unlikely that any court would determine that a State Bar cannot make decisions about who may be admitted. Remember, the Founders did not foresee the need for an amendment guaranteeing “freedom to work in the field of your choice.”
  9. Mangan v. Brierre, supra, at 17.
  10. See Mangan v. Brierre, supra, at 17.
  11. Feldman, supra, 460 U.S. at 482.
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