Lawrence v. Chabot

Full title: FRANK J. LAWRENCE, JR., Plaintiff, v. RAE LEE CHABOT, et al., Defendants

Court: United States District Court, W.D. Michigan

Date published: May 7, 2003

Case No. 4:03-cv-20 (W.D. Mich. May. 7, 2003)

Opinion

Case No. 4:03-cv-20

May 7, 2003

REPORT AND RECOMMENDATION

JOSEPH SCOVILLE, Magistrate Judge

This is a civil rights action brought by a pro se plaintiff against various state officers pursuant to 42 U.S.C. § 1983. Plaintiffs claims arise from his efforts to gain admission to the State Bar of Michigan. Plaintiff passed the bar examination in November 2001, but his application was delayed because of the pendency of a misdemeanor prosecution against him in the state district court. Plaintiff ultimately withdrew his application for bar membership and filed this civil action. His pro se complaint seeks two types of relief. First, plaintiff challenges the attorney licensing process, both on its face and as applied to him, asserting that Michigan's procedures violate constitutionally guaranteed rights. Second, plaintiff seeks damages from defendants Diane Van Aken and Nicole Armbrustmacher in their personal capacities, arising from their allegedly unconstitutional conduct as employees of the State Bar of Michigan in processing his application for State Bar membership.

Presently pending before the court are three dispositive motions. Defendants State Bar of Michigan, John T. Berry, Diane Van Aken and Nicole Armbrustmacher have filed a motion to dismiss, asserting three grounds: Eleventh Amendment immunity, absolute immunity created by court rule, and plaintiffs lack of standing to bring the claims set forth in his complaint and the lack of ripeness of those claims. (Motion, docket # 7). Defendants Chief Justice Maura D. Corrigan, Members of the Michigan Supreme Court, Judge Rae Lee Chabot, and the Michigan Board of Law Examiners have also moved to dismiss, asserting five grounds: Eleventh Amendment immunity, legislative immunity, plaintiffs lack of standing arising from the withdrawal of his application, ripeness, and abstention under the doctrine of Younger v. Harris, 401 U.S. 37 (1971).¹ (Motions, docket #36, 43). Finally, plaintiff has filed a motion for temporary restraining order or preliminary injunction, seeking an order requiring defendants to reform their screening and admission procedures to comply with federal constitutional requirements. (Motion, docket # 12). Each motion has been fully briefed.

1 A sixth ground, arising from allegedly improper service of process, was withdrawn at the motion hearing.

By order of reference entered February 26, 2003, United States District Judge David W. McKeague referred all dispositive motions in this case to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (Order of Reference, docket # 5). Pursuant to Judge McKeague's order, I conducted a hearing on all pending dispositive motions on April 15, 2003. For the reasons set forth below, I recommend (1) that all claims against the Board of Law Examiners and the State Bar of Michigan be dismissed on grounds of Eleventh Amendment immunity; (2) that the motion of the state officers named in their official capacities to dismiss the claims for prospective relief on Eleventh Amendment grounds be denied; (3) that the motion of defendants Van Aken and Armbrustmacher to dismiss the damage claims against them be denied; (4) that the motion of Chief Justice Corrigan and the other justices to dismiss be granted on grounds of legislative immunity; (5) that plaintiffs facial challenges to the Michigan attorney licensing procedures be dismissed for failure to state a claim; (6) that plaintiffs constitutional challenges to the attorney licensing procedure, as applied, be dismissed for lack of standing and ripeness; and (7) that plaintiffs motion for preliminary injunction be denied.

Statutory and Regulatory Background

In order to analyze the issues raised by the parties, an understanding of the statutory and administrative provisions governing admission to the State Bar of Michigan is required.

The Michigan Legislature has established the basic qualifications for admission to membership of the bar of the state by statute. The Revised Judicature Act provides in relevant part

(1) A person is qualified for admission to the bar of this state who proves to the satisfaction of the board of law examiners that he or she is a person of good moral character, is 18 years of age or older, is a resident of one of the states or territories or the District of Columbia, has the required general education, learning in the law, and fitness and ability to enable him or her to practice law in the courts of record of this state, and that he or she intends in good faith to practice or teach law in this state. Additional requirements concerning the qualifications for admission are contained in subsequent sections of this chapter.

MICH. COMP. LAWS § 600.934. The legislature has defined the term "good moral character" as follows:

The phrase "good moral character," or words of similar import, when used as requirement for an occupational or professional license or when used as a requirement to establish or operate an organization or facility regulated by this state in the Michigan Compiled Laws or administrative rules promulgated under those laws shall be construed to mean the propensity on the part of the person to serve the public in the licensed area in a fair, honest, and open manner.

MICH. COMP. LAWS § 338.41(1).

The legislature has also created two state agencies to regulate admission of attorneys in the state. The State Bar of Michigan is defined by statute as a "public body corporate." MICH. COMP. LAWS § 600.904. The State of Michigan has entrusted its Supreme Court with the "power to provide for the organization, government, and membership of the State Bar of Michigan, and to adopt rules and regulations concerning the conduct and activities of the State Bar of Michigan and its members, the schedule of membership dues therein, the discipline, suspension, and disbarment of its members for misconduct, and the investigation and examination of applicants for admission to the bar." MICH. COMP. LAWS § 600.904. The State Bar has statutory power to issue subpoenas and take testimony under oath in aid of its disciplinary and admission duties. MICH. COMP. LAWS § 600.907. The second state agency created by the legislature is the Board of Law Examiners. See MICH. COMP. LAWS § 600.922. The Board of Law Examiners is under the direct supervision of the Michigan Supreme Court and has the final authority to certify that a candidate is qualified to practice law in the state, subject to judicial review by the state Supreme Court. MICH. COMP. LAWS § 600.925; MICH. CT. R. 7.304(a). It likewise has the power to issue subpoenas and take sworn testimony. MICH. COMP. LAWS § 600.925.

The procedures governing admission to the state bar were created by rules promulgated by the Michigan Supreme Court, specifically Rule 15 of the Supreme Court Rules Concerning the State Bar of Michigan (hereafter "State Bar Rules"). Rule 15 allocates procedural functions to both the State Bar of Michigan and the Board of Law Examiners in the admissions process. Rule 15 § 1(1) creates a standing committee on character and fitness of the State Bar consisting of eighteen persons, in addition to district character and fitness committees. Section 1(3) also requires the State Bar of Michigan to assign staff to assist the standing committees in the discharge of their duties. Section 1(5) establishes a sequential procedure for the review of applications:

First, the staff of the State Bar of Michigan reviews the application. When this review and investigation of all past conduct discloses "no significant adverse factual information," the staff of the State Bar issues a favorable recommendation to the Board of Law Examiners.

If the staff does not make such a favorable recommendation, it refers the applicant to the appropriate State Bar district committee for a personal interview. The district committee may investigate the character and fitness of the referred applicant, in addition to conducting an informal interview. If the district committee then recommends approval, it forwards its written report and recommendation to the State Bar standing committee on character and fitness. The report and recommendation is not binding on the standing committee. If the standing committee concurs, a favorable recommendation is forwarded to the Board of Law Examiners. Rule 15 § l(5)(b), (c), (d).

If the district committee issues an unfavorable written report and recommendation, the standing committee may adopt it, take the recommendation under advisement pending receipt of additional information that it deems necessary, remand the recommendation to the district committee with instructions for further proceedings, or reject the recommendation and conduct a hearing de novo. If the unfavorable recommendation is adopted by the State Bar standing committee, it must furnish the applicant with a copy of the report and recommendation and advise the applicant of the right to a formal hearing before the standing committee. If the applicant requests a formal hearing in a timely fashion, the standing committee conducts a de novo hearing. The de novo hearing has all the trappings of a formal administrative hearing. The applicant is entitled to be represented by counsel at the hearing (and for that matter, at any previous stage of the proceedings), testimony is taken under oath, the Rules of Evidence are to be used as a guide, and the applicant is entitled to use the State Bar's subpoena powers to obtain relevant evidence and testimony. Formal hearings conducted by the standing committee are recorded and will be transcribed, if necessary. Rule 15 § 1(6), (11), (12). The standing committee must issue its final findings and recommendations in writing. If the committee's findings are favorable to the applicant, it forwards its favorable recommendation to the Board of Law Examiners.

In the event of an unfavorable recommendation by the standing committee, an applicant is entitled to de novo hearing before the Board of Law Examiners, which issues the ultimate administrative decision. MICH. COMP. LAWS § 600.925; State Bar Rule, § 1(20).

A disappointed applicant has the right to seek review in the state Supreme Court by filing a petition for mandamus, an original action, under Mich. Ct. R. 7.304(a).

Allegations in Complaint

For purposes of adjudicating defendants' motions to dismiss, the well-pleaded allegations of fact in plaintiffs complaint must be accepted as true. Those allegations, to the extent that they are germane to the pending motions, are summarized below.

Plaintiff, Frank J. Lawrence, Jr., was at the time of filing his complaint twenty-nine years old and a graduate from an accredited Michigan law school. He passed the bar examination administered in July 2001.

In August of 2000, when plaintiff was still in law school, he was charged with a misdemeanor ordinance violation in Bloomfield Township for interfering with a police officer. Attorney Thomas Ryan, an officer of the State Bar of Michigan, represented Bloomfield Township in the misdemeanor prosecution. Plaintiff sought to enjoin the prosecution by filing a lawsuit in the Eastern District of Michigan. Lawrence v. Bloomfield Township, No. OO-cv-74302 (E.D. Mich. 2000). Judge Avern Cohn decided that the federal court should abstain from interfering with the pending state-court prosecution, but allowed the action to remain pending. During the course of the state misdemeanor prosecution, plaintiff made public statements criticizing both attorney Ryan and Judge Edward Avadenka, before whom the criminal case was pending.

Although plaintiff passed the State Bar examination, his application was not immediately processed by the State Bar, because of the pendency of the criminal prosecution. This is evidenced by a letter from defendant Diane K. Van Aken, a member of the staff of the State Bar of Michigan, dated December 29, 2001. Ms. Van Aken's letter invoked a rule of the standing committee on character and fitness, which did "not allow for a Character Fitness determination while criminal charges are pending. Therefore, we will be unable to complete your Character and Fitness investigation until your pending charge has been resolved."² Plaintiff alleges that Van Aken held his admission process in abeyance as a means of pressuring him to drop his Eastern District lawsuit challenging the Bloomfield Township prosecution. Plaintiff further alleges that Ryan used the delay in the admissions process as leverage to coerce plaintiff to withdraw his federal lawsuit and that Ryan recruited Judge Avadenka in this effort. (Complaint, ¶ 33). Plaintiff also alleges that defendant Nicole Armbrustmacher, a character and fitness investigator for the State Bar of Michigan, participated in the unconstitutional delay of plaintiff s application and improperly contacted his employer and Judge Avadenka in this effort.

2 Rule 5 of the Rules of the Standing Committee on Character and Fitness provides:

If an applicant has criminal charges pending, the district committee referral should be delayed until the pending proceeding is concluded. An applicant may request that a referral be made prior to the final adjudication of criminal charges, and the request should be granted provided that a district committee report and recommendation does not issue until the criminal matter is concluded.

In September 2002, defendants Van Aken and Armbrustmacher referred plaintiffs application to a district committee under State Bar Rule 15 § l(5)(b). On September 16, 2002, plaintiff was served a notice of referral and order to appear before the district committee on October 8, 2002, for an interview. He filed a request to adjourn the October 8 hearing, citing his need to take discovery, procure witnesses and "prepare a defense." (Complaint, ¶ 40). Plaintiffs request was denied, as was his request to subpoena witnesses for the interview. (Complaint, ¶¶ 40-41).

Rather than attending the interview "unprepared," plaintiff decided to withdraw his application for membership to the State Bar. (Complaint, ¶¶ 45). Plaintiff alleges that he intends to reapply for admission in the future, and that he can do so by merely paying a $200 filing fee and updating his application. (Complaint, ¶¶ 45-46).

Parties Defendant

Plaintiff has caused some confusion concerning the parties against whom he is seeking relief in this action. The parties named in the caption differ from those identified in the body of the complaint. For example, the caption mentions "all Board members of the Michigan Board of Law Examiners," but the body of the complaint (¶ 6) does not. Merely naming a party in the caption of a civil rights complaint, without making specific allegations concerning the party's acts or omissions, is insufficient to state a claim against that party under section 1983. See Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974); McCoy v. Goord, No. 01 civ. 3133 (B.C.), ___ F. Supp.2d ___, 2003 WL 1479232, at * 19 (S.D.N.Y. Mar. 25, 2003); Tolley v. Kivett, No. 1:01-cv-410, 2002 WL 31163773, at * 2 (M.D.N.C. July 1, 2002) (collecting cases); Anderson v. City of Chicago, 90 F. Supp.2d 926, 929 (N.D. Ill. 1999); Eckford-el v. Toombs, 760 F. Supp. 1267, 1272-73 (W.D. Mich. 1991). This court must therefore be guided by the allegations in the body of the complaint in identifying the parties. As identified in the complaint, the parties against whom plaintiff seeks equitable relief are as follows:

• The State Bar of Michigan (Complaint, ¶ 4);

• John Berry, the Executive Director of the State Bar of Michigan, sued in his official capacity ( Id., ¶ 15);

• The Michigan Board of Law Examiners ( Id., ¶ 6);

• Judge Rae Lee Chabot, currently the chairperson of the Board of Law Examiners, sued in her official capacity ( Id., ¶ 6);

• Chief Justice Maura Corrigan and all other Justices of the Michigan Supreme Court, sued in their official capacity ( Id., ¶ 7).

In addition, plaintiff seeks monetary damages against Diane Van Aken and Nicole Armbrustmacher, employees of the State Bar of Michigan, who are sued in their personal capacities. (Complaint, ¶ 8).

Discussion

I. Motions to Dismiss

A. Applicable Standard

Under Rule 12(b)(6), a complaint may be dismissed only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint. See Ludwig v. Board of Trustees, 123 F.3d 404, 408 (6th Cir. 1997); Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). The court must construe the complaint in the light most favorable to plaintiff, accept all factual allegations as true, and determine whether it is established beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See Trzebuckowski v. City of Cleveland, 319 F.3d 853, 855 (6th Cir. 2003); Nelson v. Miller, 170 F.3d 641, 649 (6th Cir. 1999); Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995). While this standard is decidedly liberal, it requires more than the bare assertion of legal conclusions. See Perry v. American Tobacco Co., 324 F.3d 845, 848 (6th Cir. 2003). The court need not accept as true legal conclusions or unwarranted factual inferences. Murphy v. Sofamor Danek Group, Inc. (In re Sofamor), 123 F.3d 394, 400 (6th Cir. 1997) (quoting Morgan, 829 F.2d at 12). "In practice, a `. . . complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'" Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993); see Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003); Begala v. PNC Bank, 214 F.3d 776, 779 (6th Cir. 2000); Board of Trustees of Painesville Twp v. City of Painesville, 200 F.3d 396, 399 (6th Cir. 1999).

B. Statutory Immunity

Defendants Diane Van Aken and Nicole Armbrustmacher are sued for damages alone in their personal capacities. They raise as a defense the immunity created by Rule 15 § 1 (10) of the State Bar Rules promulgated by the Supreme Court. That rule grants the State Bar staff, members of the district and standing committees, and members and staff of the Board of Law Examiners absolute immunity from suit for conduct arising out of the performance of their duties.

The motion to dismiss based on state-created immunities is not well taken. The Supreme Court has repeatedly held that a state law immunizing government conduct otherwise subject to suit under 42 U.S.C. § 1983 is preempted and cannot provide a defense to a federal civil rights claim. See, e.g., Felder v. Casey, 487 U.S. 131, 139 (1988); Martinez v. California, 444 U.S. 277, 283 (1980). The motion to dismiss brought on behalf of defendants Van Aken and Armbrustmacher on the basis of state immunity must therefore be denied.

As the Supreme Court itself has noted, federal law recognizes several immunity defenses on behalf of state employees. For example, members of a state committee on character and fitness may be entitled to quasi-judicial immunity. See Sparks v. Character Fitness Comm. ofKy., 859 F.2d 428 (6th Cir. 1988). Likewise, attorneys on the State Bar staff may be entitled to quasi-judicial, prosecutorial immunity, depending upon a functional analysis of the duties they perform. Cf. Doe v. Attorney Discipline Bd., No. 95-1259, 1996 WL 78312 (6th Cir. Feb. 22, 1996) (individual members of the Attorney Grievance Commission entitled to quasi-judicial immunity); Eston v. Van Bolt, 728 F. Supp. 1336, 1339 (E.D. Mich. 1990) (absolute immunity granted to Attorney Grievance Commission members for investigation and decision whether to prosecute grievance). Alternatively, these defendants may be entitled to qualified immunity, which protects government officials performing discretionary functions, insofar as their conduct does not violate clearly established federal rights of which a reasonable officer would have been aware. SeeHarlow v. Fitzgerald, 457 U.S. 800 (1982). Defendants have not, however, raised any applicable federal defense, nor is the present record sufficient to determine whether they are entitled to a federal immunity from a damage suit. Consequently, the motion to dismiss brought on behalf of defendants Van Aken and Armbrustmacher should be denied, without prejudice to their ability to raise any applicable federal defense.

C. Eleventh Amendment Immunity

Each defendant has raised Eleventh Amendment immunity. Defendant has sued both state agencies and state officers, with some officers sued only in their official capacities for prospective relief and other officers sued in their personal capacities for damages only. The court must therefore analyze each group of defendants separately for purposes of deciding the Eleventh Amendment defense.

The Eleventh Amendment by its terms prohibits only suits against a state by citizens of another state or by aliens. The Supreme Court has held, however, that the Amendment's fundamental principles of sovereign immunity negate federal exercise of jurisdiction over suits by citizens against their own states as well. Hans v. Louisiana, 134 U.S. 1 (1890); see Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 98 (1984). The Eleventh Amendment bars anysuit, absent consent, against the state or its agencies regardless of the form of relief requested. Pennhurst, 465 U.S. at 100-01. The Eleventh Amendment also bars damage suits against state officers in their official capacity, because an official capacity suit against a state officer is tantamount to a suit against the state itself. See Brandon v. Holt, 469 U.S. 464 (1985).

Board of Law Examiners and State Bar. The Board of Law Examiners and the State Bar of Michigan invoke Eleventh Amendment immunity on the ground that they are agencies of the State of Michigan. The question whether an entity is an agency of the state for Eleventh Amendment purposes is a question of federal law, but is informed by the provisions of state law. See Brotherton v. Cleveland, 173 F.3d 552, 560 (6th Cir. 1999). The Sixth Circuit follows a multi-factor test. Id. The relevant factors include how state law defines the entity, the degree of control the state maintains over the entity, where the funds for the entity are derived, and who is responsible for any judgment entered. Id.

Application of these factors makes its clear beyond peradventure that both the Board of Law Examiners and the State Bar of Michigan are arms of the judicial branch of state government. Under state law, the authority to regulate legal practice inheres in the state Supreme Court. Grievance Admin, v. Lopatin, 612 N.W.2d 120, 125 (Midi. 2000); Folk v. State Bar of Mich., 305 N.W.2d 201, 222 (Mich. 1981) (Ryan, J.); Johnson v. DeGiovanni, 78 N.W.2d 560, 565 (Mich. 1956). Both the State Bar and the Board of Law Examiners were created by statute. See MICH. COMP. LAWS § 600.922 (Board of Law Examiners); MICH. COMP. LAWS § 600.901 (State Bar of Michigan). Each body is subject to the plenary supervision and oversight of the Michigan Supreme Court. See Scullion v. State Bd. of Law Examiners, 302 N.W.2d 290, 291-92 (Mich.Ct.App. 1981). The Board of Law Examiners is designed to assist the Supreme Court in its statutorily granted power to control and regulate membership of the State Bar. It has no function other than certification of applicants for bar membership, an inherently governmental function. Id. Its members are nominated by the Supreme Court and appointed by the Governor. MICH. COMP. LAWS § 600.922. Both the State Bar of Michigan and the Board of Law Examiners exercise regulatory authority over attorneys delegated to them directly by the state Supreme Court and have the power to issue subpoenas and take sworn testimony. The Michigan Supreme Court has held that the State Bar is not a private organization, but is an agency of the state and that its real and personal property is exempt from taxation because it is public property belonging to the state. State Bar of Mich. v. City of Laming, 105 N.W.2d 131, 135 (Mich. 1960). A judgment would therefore be satisfied by seizure of state property. The United States District Court for the Eastern District of Michigan has found that the Michigan State Board of Law Examiners is entitled to Eleventh Amendment immunity from suit in federal court. See Kish v. Michigan State Bd. of Law Examiners, 999 F. Supp. 958, 961-62 (E.D. Mich. 1998). The same court has also held that the State Bar of Michigan is a judicial agency of the State of Michigan, entitled to Eleventh Amendment immunity from suit. Roe v. State Bar of Mich., No. Ol-cv-71954 (E.D. Mich. Sept. 18, 2001) (attached as Ex. 13 to Brief, docket # 12).³

3 The only factor that appears, at least superficially, to disassociate the State Bar from the State of Michigan itself is that the State Bar is supported by the payment of dues by its members, rather than by tax revenues. Even this factor, when understood, supports characterization of the State Bar as an arm of the State. Bar dues are not voluntarily paid, but are required as a mandatory incident of membership in the unified State Bar. See MICH. COMP. LAWS § 600.904; State Bar Rule 4 (Membership Dues). Failure to pay dues results in an attorney's automatic suspension from practice. State Bar Rule 4(b). It is obvious that the involuntary dues structure is the product of the state's coercive power, not typical of voluntary, nongovernmental associations.

The Board of Law Examiners and the Michigan State Bar are creatures of state statute, exercise governmental authority, and are subject to the plenary governance of the state Supreme Court. They are therefore arms of the state for purposes of the Eleventh Amendment. These entities are immune from suit in federal court, regardless of the relief requested. See Thiokol Corp. v. Dep't of Treasury, State of Mich., 987 F.2d 376, 381 (6th Cir. 1993).

Officers Sued in Their Official Capacities for Prospective Injunctive Relief. Plaintiff has brought suit against a number of state judicial officers in their official capacity, seeking only declaratory and injunctive relief. In addition to barring federal lawsuits against the states and their agencies, the Eleventh Amendment prohibits some suits against state officials. A damage suit against a state officer sued in his official capacity is barred when the action in essence seeks to recover money from the state, because "the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity. . . ." Edelman v. Jordan, 415 U.S. 651, 663 (1974). A damage claim against an officer sued in his official capacity generally represents "only another way of pleading an action against an entity of which an officer is an agent." Kentucky v. Graham, 473 U.S. 159, 165 (1985). Such damage actions are therefore treated as suits against the state itself. Id. at 166. Nearly 100 years ago, however, the United States Supreme Court created an important distinction applying to suits for prospective relief against state officers. Under the doctrine announced in Exparte Young, 209 U.S. 123 (1908), a state official sued in his official capacity for prospective equitable relief is generally not regarded as the state for purposes of the Eleventh Amendment. As the Supreme Court has stated:

Both prospective and retrospective relief implicate Eleventh Amendment concerns, but the availability of prospective relief of the sort awarded in Exparte Young gives life to the Supremacy Clause. Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law. But compensatory or deterrence interests are insufficient to overcome the dictates of the Eleventh Amendment.

Green v. Mansour, 474 U.S. 64, 68 (1985) (citations omitted). As the Sixth Circuit has put it: "Thus, under the Exparte Young doctrine, the Eleventh Amendment⁴ bars federal jurisdiction over suits against state officials when the relief sought is retrospective or compensatory in nature, but does not necessarily prohibit suits against state officials based on federal law when only prospective injunctive relief is sought." MacDonald v. Village of Northport, Mich., 164 F.3d 964, 971 (6th Cir. 1999).

4 "There is a well-recognized irony in Ex Porte Young; unconstitutional conduct by a state officer may be `state action' for purposes of the Fourteenth Amendment yet not attributable to the state for the purposes of the Eleventh. Nevertheless, the rule of Ex Parte Young is one of the cornerstones of the court's Eleventh Amendment jurisprudence." Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 685 (1982); Carten v. Kent State Univ., 282 F.3d 391, 396 (6th Cir. 2002).

Before 1997, federal courts automatically allowed suits for injunctive relief to proceed against state officers under the doctrine of Exparte Young. In that year, however, the Supreme Court narrowed the scope of Exparte Young in Idaho v. Coeurd' Alene Tribe, 521 U.S. 261 (1997). In that case, an Indian tribe sought declaratory and injunctive relief establishing its right to quiet enjoyment over the submerged lands of a lake and preventing Idaho state officials from exercising the state's regulatory jurisdiction over such lands. A majority of the Justices agreed that this action was barred by the Eleventh Amendment, despite the fact that the tribe was seeking only prospective equitable and declaratory relief. The court reasoned that the requested injunctive relief was the "functional equivalent" of a quiet title action against the state, which implicated the state's "special sovereignty interest." 521 U.S. at 281. In light of the Coeur d'Alene decision, the lower federal courts may no longer apply Exparte Young mechanically, without any consideration of the nature of the dispute involved in the litigation. As construed by the Sixth Circuit, the Coeur d'Alene decision requires the federal courts to examine (1) whether the relief being sought against a state official implicates a "special sovereignty interest" and, if so, (2) whether the requested relief is the "functional equivalent" of a form of legal relief against the state that would otherwise be barred by the Eleventh Amendment. MacDonald, 164 F.3d at 971-72. In formulating this two-part test, the Sixth Circuit relied on the Tenth Circuit's decision in ANR Pipeline Co. v. LaFaver, 150 F.3d 1178 (10th Cir. 1998), which held that a suit against state officials for equitable relief requiring recertification of property tax assessments was barred under the Eleventh Amendment, because it sought the functional equivalent of a money judgment against the state and intruded on the state's special sovereignty interests.

Two decisions of the United States District Court for the Eastern District of Michigan have applied Coeur d'Alene and its progeny to very similar suits against officers of the State Bar and members of the Board of Law Examiners, seeking only prospective relief concerning admission to State Bar membership. The first is a published decision by Judge Gerald Rosen, Kish v. Michigan State Bd. of Law Examiners, 999 F. Supp. 958 (E.D. Mich. 1998). The later case, a decision by Judge Nancy Edmunds, was Roe v. State Bar of Michigan, case no. Ol-cv-71954 (E.D. Mich. Sept. 19, 2001) (opinion attached as Ex. 13 to docket # 13). InKish, Judge Rosen found that an equitable action against members of the State Board of Law Examiners in which the plaintiff sought to compel the board to admit him to practice was barred by Eleventh Amendment immunity. Judge Rosen found that a decision against the board members would intrude upon a "special sovereignty interest." 999 F. Supp. at 964. Judge Rosen did not reach the second question — whether the requested relief is the "functional equivalent of a form of legal relief against the state that would otherwise be barred" — undoubtedly because the Sixth Circuit had not yet articulated the second prong of this standard. Judge Edmunds agreed that Michigan's interest in regulating its bar is indeed a substantial sovereignty interest. With the benefit of the later Sixth Circuit decisions vaMacDonald and other cases, however, Judge Edmunds determined that a suit for prospective relief concerning State Bar membership would not be the substantial equivalent of a form of legal relief against the state that would otherwise be barred by the Eleventh Amendment. Unlike the situation in ANR Pipeline, for example, in which the equitable action was the functional equivalent of a money judgment against the state, Judge Edmunds found that the Roe matter "presents the prototypical case in which Young's exception to Eleventh Amendment immunity applies." (Op., 14). "That is, plaintiffs seek an injunction requiring state officers to comply with federal law in the future. An award in plaintiffs' favor will neither impact the state's treasury, quiet the state's title to land, nor affect a prior state action." ( Id.). Thus, while conceding that a suit for prospective relief against state officers concerning bar membership would implicate special sovereignty interests, Judge Edmunds found that the requested relief was not equivalent to that which would otherwise be barred. On this basis, she rejected Eleventh Amendment immunity for officers of the State Bar and members of the State Board of Law Examiners.

The decision in Roe by Judge Edmunds is consistent with Sixth Circuit precedent and should be followed. As Judge Edmunds pointed out, since the Coeur d'Alene decision, the Sixth Circuit continues to apply Young's exception whenever plaintiffs seek prospective injunctive relief that would merely compel state officers to comply with federal law in the future. See, e.g., Lawson v. Shelby County, Tenn., 211 F.3d 331, 335 (6th Cir. 2000); Nelson v. Miller, 170 F.3d 641, 646 (6th Cir. 1999). The relief sought in the present case is not tantamount to a money judgment against the state, would not quiet title to state property and would not otherwise be the functional equivalent of relief forbidden by the Eleventh Amendment. On the basis of the foregoing authorities, I conclude that plaintiffs suit for prospective injunctive relief against state officers sued in their official capacities is not barred by the Eleventh Amendment and that defendants' motion to dismiss on this ground should be denied.

Defendants Van Aken and Armbrustmacher, Sued in Their Individual Capacities. Defendants also assert Eleventh Amendment immunity regarding claims for damages brought against defendants Van Aken and Armbrustmacher. The merit of such a motion is difficult to discern. A suit against a state officer in her official capacity seeks to impose personal liability upon the officer for actions taken under color of state law. See Kentucky v. Graham, 413 U.S. 159, 165(1985). An award of damages against an official in such a case can be executed "only against the official's personal assets." Id. at 166. The Eleventh Amendment provides "no shield for a state official confronted by a claim that he had deprived another of a federal right under color of state law." Scheuer v. Rhodes, 416 U.S. 232, 237 (1974); accord Hafer v. Melo, 502 U.S. 21, 30 (1991). Eleventh Amendment immunity is only implicated in a damages action when plaintiff seeks to somehow reach the state treasury. See Edelman v. Jordan, 415 U.S. 651, 663 (1974). As plaintiff in the present case seeks to impose a damage award only against Van Aken and Armbrustmacher, and not the State Treasury, his damage claim against those defendants in their personal capacities is not barred by Eleventh Amendment immunity.

D. Legislative Immunity of State Supreme Court Justices

Plaintiff has sued Chief Justice Maura Corrigan and the other Justices of the Michigan Supreme Court. His complaint makes it clear that the Justices are named as defendants because of their role in promulgating rules that plaintiff claims are unconstitutional. (Complaint, ¶¶ 7, 47). The Justices have raised the defense of legislative immunity. This defense is meritorious and precludes all claims against Chief Justice Corrigan and the other Justices.

In Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719 (1980), the Court held that the Justices of the Supreme Court of Virginia, in promulgating the Virginia Code of Professional Responsibility governing the professional conduct of attorneys, were protected by legislative immunity from a section 1983 suit seeking to enjoin enforcement and operation of the Code. The Court observed that the State of Virginia had vested its Supreme Court with virtually all legislative and regulatory power over the legal profession. 446 U.S. 721-724. The Court determined that propounding a disciplinary code is not an act of adjudication, "but one of rule-making," and that for such purposes, the state Supreme Court was constituted as a legislature. 446 U.S. at 731. On this basis, the Court held that the state justices were immune from suit for acts performed in their legislative capacity, just as members of Congress and state legislatures enjoy common-law immunity from liability for their legislative acts. Id. at 731-34.⁵

5 The Court did allow imposition of injunctive and declaratory relief against the Virginia justices arising from their direct enforcement roles in the disciplinary process, "just as other enforcement officers and agencies." 446 U.S. at 736. The Court likened this role to that of a prosecutor. Id. Plaintiff has not alleged that any Michigan Supreme Court Justice, or the court itself, has acted in an enforcement capacity in his case, nor does Michigan law appear to create any such enforcement role for Supreme Court Justices regarding questions of attorney admissions.

As is the case in Virginia, the Michigan Constitution and laws invest the Michigan Supreme Court with the authority to regulate the practice of law. See Sharp v. Ingham County, No. 01-1164, 2001 WL 1557062 (6th Cir. Dec. 4, 2001); Lopatin, 612 N.W.2d at 124. The state legislature has acknowledged the Supreme Court's plenary authority over State Bar membership. MICH. COMP. LAWS § 600.904. Accordingly, the Sixth Circuit holds that the Michigan Supreme Court's promulgation of rules of legal practice and procedure is a legislative activity for which the Justices are entitled to legislative immunity. Abick v. Michigan, 803 F.2d 874, 877-78 (6th Cir. 1986); accordPatmon v. Michigan Supreme Ct, 224 F.3d 504. 509 (6th Cir. 2000). Furthermore, the Sixth Circuit has interpreted the Consumers Union decision as granting complete immunity from suit "whether the relief sought is money damages or injunctive relief."⁶ Alia v. Michigan Supreme Ct., 906 F.2d 1100, 1102 (6th Cir. 1990). The Sixth Circuit's reading of Consumers Union is clearly correct, as that case involved only declaratory and injunctive relief, and not monetary damages, against the state Supreme Court Justices. SeeLarsen, 152 F.3d at 253. As the Court in Consumers Union pointed out, injunctive relief remains available against subordinate officers charged with enforcing the allegedly unconstitutional rule. 446 U.S. at 734. In both Abick and Alia, the Sixth Circuit held that the doctrine of legislative immunity bars all suit against Michigan Supreme Court Justices arising from their decision to promulgate allegedly unconstitutional rules. Those cases require the recognition of legislative immunity in the present action as well.

6 Other federal circuit courts are generally in agreement that legislative immunity extends to claims for injunctive and declaratory relief as well as claims for monetary damages. See, e.g., Larsen v. Senate of Commonwealth of Pa., 152 F.3d 240, 253 n. 2 (3d Cir. 1998) (collecting cases).

For the foregoing reasons, I recommend that all claims against Chief Justice Corrigan and the other members of the state Supreme Court be dismissed on the ground of legislative immunity.

E. Justiciability.

The foregoing immunity analysis leaves only two defendants against whom plaintiff s claims for prospective relief may be pursued — Judge Rae Lee Chabot, in her official capacity as Chairperson of the Board of Law Examiners, and John Berry in his official capacity as Executive Director of the State Bar. These defendants have moved for dismissal on the ground that plaintiff lacks standing and that his claims are not ripe.

The Constitution limits the power of the federal courts to adjudication of "cases or controversies." U.S. CONST, art. III, § 2. The Article III requirement of a case or controversy has given rise to numerous doctrines of Justiciability, including standing, ripeness, mootness, political questions, and the like. "Justiciability is an analytical approach that has been `developed to identify appropriate occasions for judicial action, both as a matter of defining the limits of the judicial power created by Article III of the Constitution, and as a matter of justifying refusals to exercise the power even in cases within the reach of Article III'" Malamud v. Sinclair Oil Corp., 52 1 F.2d 1142, 1146 (6th Cir. 1975) (quoting Charles A. Wright, Arthur R. Miller and E. H. Cooper, FEDERAL PRACTICE AND PROCEDURE § 3529, at 146 (1975)). Justiciability, then, is a concept founded in part upon Article III and in part upon judicial discretion. See Renne v. Geary, 501 U.S. 312, 316 (1991). Defendants in the present case raise two doctrines of Justiciability: standing and ripeness.

In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the Supreme Court established the "irreducible constitutional minimum" for the establishment of standing, identifying three elements. First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is concrete and particularized and actual or imminent, not conjectural or hypothetical. 504 U.S. at 560. Second, there must be a causal connection between the injury and the conduct complained of. Id. Finally, it must be likely that the injury will be redressed by a favorable decision in the case. Id. at 561. The party invoking federal jurisdiction bears the burden of both pleading and establishing these elements with proof. Id. The closely related doctrine of ripeness allows a court to avoid adjudicating a controversy on discretionary grounds, even if a plaintiff has technical standing. The ripeness doctrine depends not only on the finding of a case or controversy under Article III, but also upon a court's determination that a judicial resolution would be desirable under all the circumstances. See Adult Video Ass'n v. U.S. Dep't of Justice, 71 F.3d 563, 567 (6th Cir. 1995). A case is not ripe for review when it depends on "contingent future events that may not occur as anticipated, or indeed may not occur at all." Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985). In determining whether a case is ripe for adjudication, the court examines (1) the likelihood that the harm alleged will ever come to pass, (2) whether the factual record is sufficiently developed to allow adjudication, and (3) the hardship to the parties if judicial review is denied. See Norton v. Ashcroft, 298 F.3d 547, 554 (6th Cir. 2002).

The basis for defendants' challenge on grounds of both standing and ripeness stems from plaintiff s voluntary decision to withdraw his application for bar membership before either the State Bar or the State Board of Law Examiners had a chance to pass upon it. On this basis, defendants argue that plaintiffs claims are hypothetical and involve only the possibility, not the actuality, of harm. Defendants argue that until plaintiff has submitted himself to the character and fitness process and has actually been denied admission, he lacks standing to challenge the constitutionality of the process and his claims remain hypothetical and unripe for adjudication:

Plaintiff has not been denied admission based on some expression of speech in order for the alleged harm to occur. Particularly with regard to the latter factor, Plaintiff has presented the court with no evidence that the feared scenario will become a reality. A case is not ripe for review when it depends on "contingent future events that may not occur as anticipated, or indeed may not occur at all." Thomas v. Union Carbide Agric. Prods. Co., supra.

(Brief in Support of Motion to Dismiss, docket # 37, at 11).

In opposing defendants' motion to dismiss, plaintiff invokes a well-established corollary to the general rules of standing and ripeness applicable to certain facial challenges to statutes and regulations. For example, in Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988), the Supreme Court reiterated this longstanding doctrine: "[W]hen a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license." 486 U.S. at 755-56. A related First Amendment doctrine recognizes that a person facing a prior restraint of speech by the government suffers an injury in fact and thereby may satisfy the requirements of justiciability. See G V Lounge, Inc. v. Michigan Liquor Control Comm'n, 23 F.3d 1071, 1075 (6th Cir. 1994). The Supreme Court also allows facial First Amendment challenges to statutes that are overly broad on their face and therefore may chill free expression by persons uncertain of the statute's scope and application. See Los Angeles Police Dep't v. United Reporting Pub. Corp., 528 U.S. 32, 38 (1999). Certain facial due-process claims may also be advanced by a party without the necessity of actually submitting to the allegedly defective procedure. See, e.g., Patmon v. Michigan Supreme Ct., 224 F.3d 504, 509 (6th Cir. 2000). Plaintiff invokes all of these doctrines, singly and in confusing combination, in response to defendants' motion to dismiss.

It is apparent that a person advancing colorable First Amendment or due-process claims under the foregoing authorities would have standing to bring a facial challenge against statutes and regulations governing bar membership, without the necessity of going through the process of application and rejection on forbidden grounds. For example, if a state statute required rejection of any applicant who had ever criticized the government, the applicant would be entitled to bring a facial challenge to the statute even before being rejected, both because it acts as a prior restraint and because it would have an obvious chilling effect on potential applicants who would be restrained in their speech for fear of future rejection. Therefore, I will assume without deciding that plaintiff meets the standards for standing and ripeness with regard to his facial challenges to the Michigan attorney admission system. Because these facial challenges are insubstantial, however, I recommend that they be dismissed for failure to state a claim upon which relief can be granted.⁷

7 Defendants have not formally moved to dismiss for failure to state a claim. Because plaintiff is proceeding in forma pauperis, however, the court has the authority to dismiss a claim at any time for failure to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

1. Facial challenges to the attorney admission system

A party asserting a facial challenge confronts a "heavy burden" in advancing his claim. See National Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998). "Facial invalidation `is manifestly strong medicine' that has `been employed by the court sparingly and only as a last resort.'" Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). See also FW/PBS, Inc. v. Dallas, 493 U.S. 215, 223 (1990) (noting that facial challenges to legislation are generally disfavored). If a facial challenge is upheld, the state cannot enforce the statute against anyone. By contrast, a challenge to a statute as applied is an attack upon the statute's application only to the party before the court. If the challenge is successful, the statute may not be applied to the challenger, but is otherwise enforceable. Amelkin v. McClure, 205 F.3d 293, 296 (6th Cir. 2000).

First Amendment Claims. Plaintiff brings a series of First Amendment challenges to the Michigan attorney admission process. He invokes two lines of First Amendment jurisprudence, the first governing direct attempts by government to control the content of speech and the second governing restrictions on time, place and manner of expression. In the first line of cases, the Supreme Court has allowed facial challenges in the First Amendment context to laws allowing censorship by investing "unbridled discretion" in the decision maker. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 223 (1990). "A `prior restraint' exists when speech is conditioned upon the prior approval of public officials. Although prior restraints `are not unconstitutional per se,' they come to court bearing a heavy presumption against their validity." Deja Vu of Cincinnati, L.L.C. v. Union Twp. Bd. of Trustees, Nos. 00-4420, 00-4529, 2003 WL 1922637, at * 3 (6th Cir. Apr. 24, 2003).

The seminal case in this area is Freedman v. Maryland, 380 U.S. 51 (1965), which involved a state statute requiring the submission of films to a Board of Censors as a precondition to being shown in the state. The Court recognized that a scheme conditioning expression on a licensing body's prior approval of content "presents peculiar dangers to constitutionally protected speech." 380 U.S. at 57. In response to the obvious dangers posed by a prior restraint system of censorship, the Court required certain procedural safeguards: (1) any prior restraint prior to judicial review must be temporary and short-lived; (2) expeditious judicial review must be available; (3) the burden of proof must be placed on the censor. Id. at 58-60. Later decisions extended these procedural safeguards to the licensing and regulation of other expressive activities protected by the First Amendment, such as sexually-oriented bookstores. In FW/PBS, Inc., the Court applied the Freedman standards to an ordinance regulating certain sexually-oriented businesses, finding that the lack of adequate procedural safeguards, and especially a fixed time limit for review of applications, posed the risk of arbitrary suppression of protected activity. Subsequent cases have applied Freedman to regulations aimed directly at certain businesses, usually of a sexual nature, targeted because of the content of their expression. See, e.g., Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888-90 (6th Cir. 2000); GV Lounge, Inc. v. Michigan Liquor Control Comm'n, 23 F.3d at 1075.

The second line of cases invoked by plaintiff involves government regulation of the time, place and manner of speech. In Thomas v. Chicago Park District, 534 U.S. 316 (2002), the Court reviewed the facial constitutionality of an ordinance requiring a permit for large events in the city parks. The Court made it clear that the Freedman procedural safeguards were "inapposite," because the licensing scheme did not impose subject-matter censorship and was content-neutral. Rather, the ordinance was not addressed to communicative activity at all, but to all use of the public parks. 534 U.S. at 322. "We have never required that a content-neutral permit scheme regulating speech in a public forum adhere to the procedural requirements set forth in Freedman." Id. As a content neutral regulation of time, place and manner, the ordinance was required only to set forth adequate standards to guide the official's decision to negate the risk that the official will favor or disfavor speech based on content. Id. at 323.

Plaintiff attempts to apply these First Amendment principles to the attorney licensing scheme on the theory that the practice of law and the making of legal arguments are activities protected by the First Amendment. On this basis, he argues that the procedures of the statute and State Bar rule are inadequate under Freedman and its progeny, because they grant excessive discretion to the decision maker, are not limited in time, and do not include the right to judicial review. Alternatively, he invokes Thomas, challenging the bar admission scheme as a time, place and manner restriction of speech.

Plaintiffs attack is misguided. The statutes and rules governing attorney admission do not purport to censor anyone's expression. On their face, they have nothing to do with expression at all. Freedman is "inapposite" because the attorney licensing provisions are content-neutral. Consequently, plaintiffs reliance on decisions involving the regulation of adult entertainment is completely misplaced. Such regulations were subject to First Amendment scrutiny and resulting procedural safeguards precisely because they were not content-neutral, but were aimed at a particular kind of expressive activity, judged by its content. The ordinance in FW/PBS, for example, did not apply to all commercial establishments, but only to those that were "sexually oriented." The ordinance involved in G V Lounge involved the express prohibition of topless dancing, an activity that the Sixth Circuit described as "constitutionally protected under the First Amendment." 23 F.3d at 1075 n.l.

By contrast, the state attorney licensing scheme does not impose a prior restraint nor does it seek to impose special regulations on any expressive activity on the basis of content. The Freedman procedural safeguards, designed to prevent censorship or arbitrary official action tantamount to censorship, are plainly inapplicable. If plaintiffs argument were accepted, all licensing schemes for any trade, business or profession would be subject to the restrictive Freedman procedures, because any human activity arguably involves some protected expression. No court has ever applied the Freedman procedures to a content-neutral attorney licensing system, with good reason.

Even the relaxed First Amendment standards applicable to content-neutral regulations of time, place and manner of expression do not apply to attorney licensing. Plaintiff strenuously asserts that the procedures of State Bar Rule 5 are inadequate under Thomas (Brief, docket # 13, at 14-15), without ever bothering to explain how the rule can be deemed a regulation of the time, place or manner of expression.

Even if one were to apply First Amendment jurisprudence to the attorney licensing scheme in issue, plaintiffs formal challenges must fail. First, administrative officers are not granted "unbridled discretion" to admit or reject bar applicants. The standard is established by statute, which requires that an applicant be of "good moral character" and have the "required general education, learning in the law, and fitness and ability to enable him or her to practice law in the courts of record of this state. . . ." MICH. COMP. LAWS § 600.934(1). The requirement of "good moral character" is the same as that imposed upon applicants for occupational or professional licenses in general in the State of Michigan: the applicant must demonstrate a propensity "to serve the public in the licensed area in a fair, honest, and open manner." MICH. COMP. LAWS § 338.41. The United States Supreme Court has had occasion to review the adequacy of a statutory test for bar admission that was much less precise than that governing attorney admissions in Michigan. In Law Student Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154 (1971), a class of law students and law graduates planning to seek admission to practice in New York brought actions for declaratory and injunctive relief challenging on First Amendment grounds the requirements for admission to the New York Bar. Plaintiffs' argued that the statutory requirement that applicants possess "the character and general fitness requisite for an attorney and counselor-at-law" was vague, overbroad, and had a chilling effect on potential applicants.⁸ The Supreme Court had "no difficulty" in affirming the lower court's rejection of a facial challenge of adequacy of this standard. 401 U.S. at 159. The Court noted that its own rules required that the "private and professional characters" of applicants "appear to be good." Id. (citing U.S. SUP. CT. Rule 5(1)). Indeed, the Supreme Court Rules, as amended in 1999, continue to require that an applicant "must appear to the Court to be of good moral and professional character." U.S. SUP. CT. R. 5(1). Plaintiff has cited no case suggesting, let alone holding, that statutory standards similar to those found in Michigan law are constitutionally invalid. Such a finding in the present case would require invalidation of the Rules of the United States Supreme Court and possibly every other state in the Union.

8 The plaintiff class also challenged inquiries into the applicants' previous association with subversive groups, an issue not present in this case.

Unlike the cases upon which plaintiff relies, the statutes and rules challenged herein do not directly regulate expressive activity. Rather, on its face, Michigan law addresses conduct, character, and the propensity to serve the public honestly. The Supreme Court has long acknowledged that membership in the bar is a "privilege burdened with conditions," Theard v. United States, 354 U.S. 278, 281 (1957) (quoting In re Rouss, 116 N.E. 782, 783 (N.Y. 1917)), and that the states have a strong interest in regulating attorney conduct and integrity, an interest that sometimes weighs against First Amendment rights that unregulated parties, such as the press, would enjoy. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1073-75 (1991). There is nothing on the face of the Michigan statutes and court rules that might create the "impermissible risk of the suppression of ideas." See FW/PBS, Inc., 493 U.S. at 273-24.

Nor is there any provision on the face of these laws that would grant a state agency substantial power to discriminate based on the content of an applicant's speech, or to suppress disfavored speech or speakers. See Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Michigan Gaming Control Bd., 172 F.3d 397, 407 (6th Cir. 1999). Unlike the situation in Lac Vieux, in which a statute granted preferential treatment to parties who had taken a particular political position and penalized those who had not, nothing on the face of the Michigan attorney admission laws directs, or even allows, administrators to act on the basis of an applicant's expression. Plaintiffs facial challenge to the "unbridled" grant of discretion to state officials finds no support in the law.

Plaintiff makes the related argument that administrative discretion is "unbridled" because of the lack of adequate process, including the right to judicial review. Plaintiff dismisses the elaborate procedures set forth in State Bar Rule 15, on grounds that are hard to discern. The Michigan rule allows a disappointed applicant more than adequate process, beginning with an informal interview before a district character and fitness committee, proceeding to a full-blown adversarial hearing before the State Bar standing committee, and proceeding through to a de novo determination, again with a full panoply of procedural rights, before the State Board of Law Examiners. If an applicant is unsuccessful through this process, the applicant has the right to judicial review by petition for mandamus in the Michigan Supreme Court. MICH. CT. R. 7.304(a). Plaintiff likewise dismisses the efficacy of Supreme Court review by incorrectly asserting that review is a matter of discretion and not right. The Michigan Supreme Court has constitutional authority to "issue, hear, and determine prerogative and remedial writs." MICH. CONST. 1963, art. VI, § 4. Unlike the Supreme Court's appellate jurisdiction, which is discretionary, mandamus falls within the court's original jurisdiction, and leave to appeal is not required. See Leitman v. State Bar Grievance Bd., 198 N.W.2d 313, 317 (Mich. 1972). In support of his argument, plaintiff points to the practice of the Michigan Supreme Court to decide mandamus petitions in attorney admissions matters, whether favorably or unfavorably, in short, per curiam orders. The fact that the court finds long opinions unnecessary in most cases does not negate the applicant's right under state law to judicial review. The Supreme Court often issues extensive opinions in the discharge of its original mandamus jurisdiction. See, e.g., LeRoux v. Secretary of State, 640 N.W.2d 849 (Mich. 2002) (mandamus proceeding in reapportionment case).

Plaintiffs challenge to the adequacy of the right of judicial review is foreclosed by a decision of the Sixth Circuit Court of Appeals rendered in a closely analogous case. Fieger v. Thomas, 74 F.3d 740 (6th Cir. 1996), involved a suit for injunctive and declaratory relief brought by a Michigan attorney to enjoin the Michigan Attorney Grievance Commission from prosecuting a disciplinary complaint against him. In that action, plaintiff sought a declaration from the district court that the system for attorney discipline in the State of Michigan and certain rules and standards of professional conduct adopted by the Michigan Supreme Court were unconstitutional. The Sixth Circuit determined that the district court should have abstained under the doctrine of Younger v. Harris, 401 U.S. 37 (1971). In reaching that decision, the Court of Appeals was requiredby Younger to answer the question whether plaintiff had "an adequate opportunity in the state proceedings to raise constitutional challenges." 74 F.3d at 745. In determining that the Michigan procedure was adequate under Younger, the court reviewed the administrative proceedings attendant to disciplinary actions, which are substantially similar to those applying to attorney admissions proceedings. The Court of Appeals noted that any final decision of the attorney discipline board is subject to review by the state Supreme Court by application for leave to appeal. 74 F.3d at 746 (citing MICH. CT. R. 9.122(A)). The Court of Appeals found that this review, although discretionary, was sufficient to safeguard constitutional rights. Id. at 748-49. In so holding, the court rejected plaintiffs argument that the Michigan procedural rules did not accord him fair process because he did not have an appeal as of right. Id. at 748. The Court of Appeals dismissed this argument as "academic speculation" pointing to the lack of any indication that the state court would refuse to hear substantial federal questions. The Sixth Circuit noted that the United States Supreme Court "has not mandated one type of review (appeal as of right) over another (application for leave to appeal)." Id. at 748.

The Sixth Circuit's decision in Fieger governs the present case. The court mFieger found that discretionary review by the state Supreme Court was sufficient to protect the federal constitutional rights of an attorney facing disbarment. A fortiori, review by the state Supreme Court by original mandamus petition, which it has no discretion to ignore, must be deemed adequate to vindicate federal constitutional rights of applicants.

In summary, plaintiffs facial challenge to the Michigan system on the ground that it abandons First Amendment rights to an "unbridled delegation" of authority to limit speech is untenable. Any claim arising from the application of these facially valid provisions to plaintiffs particular case must await the actual result of administrative and judicial proceedings on plaintiffs future application for admission to the bar. Overbreadth. Plaintiff makes a related First Amendment argument on the grounds of overbreadth. The overbreadth doctrine has its source in Thornhill v. Alabama, 310 U.S. 88 (1940). In Thornhill, the Supreme Court "concluded that the very existence of some broadly written statutes may have such a deterrent effect on free expression that they should be subject to challenge even by a party whose own conduct may be unprotected." City Council v. Taxpayer's for Vincent, 466 U.S. 789, 798 (1984). "In the development of the overbreadth doctrine the Court has been sensitive to the risk that the doctrine itself might sweep so broadly that the exception to ordinary standing requirements would swallow the general rule. In order to decide whether the overbreadth exception is applicable in a particular case, [the Supreme Court has] weighed the likelihood that the statute's very existence will inhibit free expression." 466 U.S. at 799. In order for the overbreadth doctrine to apply, the plaintiff must demonstrate a substantial risk that application of the provision will lead to the suppression of speech. See Finley, 524 U.S. at 580; Broadrick, 413 U.S. at 615. "Moreover, `particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.'" Hill v. Colorado, 530 U.S. 703, 731-32 (2000) (quoting Broadrick, 413 U.S. at 615). "The concept of `substantial overbreadth' is not readily reduced to an exact definition. It is clear however, that the mere fact that one can conceive of some impermissible applications of the statute is not sufficient to render it susceptible to an overbreadth challenge. On the contrary, the requirement of substantial overbreadth stems from the underlying justification for the overbreadth exception itself-the interest in preventing an invalid statute from inhibiting the speech of third parties who are not before the Court. . . . In short, there must be a realistic danger that the statute itself will significantly compromise the recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds." 466 U.S. at 800-01.

Plaintiffs theory of overbreadth is that the State Bar and Board of Law Examiners have in the past taken into account an applicant's litigation history and conduct in assessing fitness for bar membership. Plaintiff argues that the right to bring or defend litigation is protected by the First Amendment and that reliance on past litigation activity to preclude bar membership can both abridge an applicant's free speech rights and chill others who may censor themselves for fear of consequences in a future bar admission proceeding.

Clearly, this is not a facial challenge at all, but a thinly disguised challenge to the statute as applied. On its face, Michigan's attorney licensing statute and rules do not present a specific objective harm or a threat of specific future harm to any bar applicant's First Amendment rights. Nothing in the statute's language addresses an individual's right to free speech or expression, nor do the statute or rules allow, let alone direct, state officers to make their decision on the basis of past expression. By contrast, in those cases cited by plaintiff in which the courts found standing to present a facial challenge under the overbreadth doctrine, the challenged statute specifically regulated First Amendment activities. For example, the Supreme Court decision in City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988), involved a challenge to a city ordinance that provided the mayor with discretion to deny or condition a permit for newspaper-dispensing devices on terms that the mayor deemed "necessary and reasonable." 486 U.S. at 7 53. In the Sixth Circuit decision in Lac Vieux, the challenged ordinance granted preference for casino development to entities that previously took a favorable view on a particular political issue. 172 F.3d at 408. In G V Lounge, plaintiffs challenged a statute that provided state agents with discretion to revoke or deny a liquor license if the licensee presented topless dancing, an activity the court squarely held was protected by the First Amendment. 23 F.3d at 1075. The challenged laws in the present case bear no resemblance to those involved in successful facial challenges.

In an effort to support his "facial" challenge to Michigan statutes and rules, plaintiff must stray far away from the language of the statute and rules themselves. Plaintiff points to a brochure of the State Bar of Michigan on attorney admission, in which the State Bar lists areas of conduct "that frequently give applicants problems." Included in the list is a history of criminal conduct, evidence of drug abuse, alcohol abuse, financial irresponsibility, and "previous dealings with the legal system," including litigiousness in personal matters, (docket #13, Ex. 4, at 6-7). Of course, such general comments in a brochure do nothing to impugn the validity of the statutes and rules on their face, but represent an attempt to apply the rules by subordinate officers. Even at that, the pamphlet does not state or imply that the exercise of First Amendment rights (as opposed to the abuse of the litigation process) will be grounds for denial of bar membership. Whether, and to what extent, plaintiffs previous litigation history will bear upon his application remains to be seen.

In pursuit of his "facial" challenge, plaintiff also finds it necessary to point to the decisions and actions of the State Bar or the Board of Law Examiners in other cases. Plaintiff provides the affidavit of Stephen Dean (docket #12, Ex. 3), who complains about the conduct of Thomas K. Byerly, counsel for the State Bar of Michigan, in connection with Mr. Dean's picketing of Byerly' s home. Dean claims that Byerly drove his car aggressively toward the picketers and stated to Dean that he would never practice law in the State of Michigan because of his picketing. What this incident, if true, has to do with the facial validity of Michigan's statute and court rules is impossible to discern. A threatened abuse of power by a low-level official, if it happened, certainly does not impugn the constitutional validity of an entire regulatory system. Plaintiff also points to the written opinion of the Board of Law Examiners in the case of Dennis Dubuc (see Opinion, docket #12, Ex. 6). In the Dubuc case, the Board of Law Examiners took into consideration the applicant's sanctionable activity in previous civil litigation, including baseless written allegations that a judge was guilty of bribery. During oral argument, plaintiff in the present case admitted that the Board could constitutionally take into consideration such sanctionable and abusive behavior in determining an applicant's fitness to practice law. A proper facial challenge on the basis of overbreadth would require that the statute specifically authorize the Board to take into account both protected and unprotected activity, and a showing that a reasonable person could be chilled by the overbreadth of the statutory language. Plaintiffs presentation is so remote from such a facial challenge that it should require no further analysis.

In summary, I conclude that plaintiff s attempts to challenge the Michigan statute and rules governing attorney admission on their face under First Amendment principles are frivolous. "A facial challenge to a legislative act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exist under which the act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). In the present case, plaintiff admits that certain First Amendment activity can properly be considered in reviewing an application for bar membership. With that admission, plaintiff s facial challenge to the statute fails.

Due Process Claims. Plaintiff also asserts that the attorney licensing system violates the "separation of powers doctrine" and lacks adequate checks and balances, because all authority is vested in the state judicial branch. In support of this argument, plaintiff cites Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991). In that case, the Court held that the creation of a board composed of members of Congress with veto power over the acts of an airport authority violated the constitutional requirement of separation of powers. In so holding, the Court scrutinized the provisions of the Constitution establishing three branches of government and disbursing federal power among them. 501 U.S. at 272-77. Plaintiff uncritically applies this holding to the structure of the state attorney licensing machinery, alleging that Michigan law creates a system of tyranny by lodging all authority in this area in the judicial branch.

Plaintiff is guilty of extremely poor scholarship. Although the separation of powers doctrine applies to the federal government by reason of the express structure of the Constitution, it has no application to state government. The only structural requirement imposed upon the states by the federal Constitution is that they provide their citizens with a "republican form of government." U.S. CONST, art. IV, § 4. Even this issue frames a political question entrusted to Congress and not the courts. See Pacific States Tel. Tel. Co. v. Oregon, 223 U.S. 118, 147 (1912). The question of distribution of power among the branches of state government is reserved to the state itself. See Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 612 (1937). "Whether the legislative, executive and judicial powers of a state shall be kept altogether distinct and separate . . . is for the determination of the state." Dreyer v. Illinois, 187 U.S. 71, 84 (1902). Simply put, the federal Constitution does not impose any particular separation of powers requirement on state governments. Consolidated Edison Co. of New York, Inc. v. Patacki, 292 F.3d 338, 346 n. 4 (2d Cir. 2002). Plaintiffs alleged facial challenge to the Michigan statutes and rules on attorney licensure on the basis of separation of powers is utterly frivolous and must be rejected.

Plaintiff makes a number of other diffuse accusations against the integrity of the attorney admission process, none of which supports a facial challenge on due-process grounds. For example, plaintiff argues that his application was unduly delayed and that other applicants have faced similar delays. He also accuses the Board of Law Examiners of reaching inconsistent decisions in previous cases on the question whether resident aliens can be admitted to the bar, an issue that has absolutely nothing to do with plaintiffs case. This exercise in fault-finding does nothing to support a facial challenge to the attorney admission scheme on due-process grounds. No adjudicatory system exists on the face of the earth that is free from delay, mistake, and even gross error. Pointing to isolated mistakes, if mistakes they were, in an adjudicatory body's past history cannot possibly establish a facial due-process claim. If such were the case, even the United States Supreme Court could not withstand scrutiny. Plaintiffs facial due-process claims are, in a word, nonsensical.

For the foregoing reasons, I recommend that all plaintiffs claims for prospective injunctive relief based upon a facial challenge to the Michigan statute and rules governing attorney admission be dismissed for failure to state a claim upon which relief can be granted.

2. Challenges to the attorney admission system as applied

Plaintiff also raises constitutional claims, under the First Amendment and the Due Process Clause, to Michigan's attorney admission statute and rules as they are applied to him. In raising these claims before he has submitted himself to the character and fitness process of Michigan law, plaintiff runs squarely into the doctrines of justiciability previously discussed. Plaintiffs First Amendment claim, in essence, is that the attorney admission authorities might improperly rely on plaintiffs previous litigation history and other protected expression to deny him bar membership. This claim, and plaintiffs related First Amendment claims, are all speculative and fail to meet any of the requirements for standing or ripeness. Plaintiff has not sustained an injury in fact, nor will he, until the character and fitness process is allowed to take its course and defendants make the decisions that plaintiff now fears. There has been no invasion of a legally protected interest that is concrete and particularized, as opposed to conjectural or hypothetical. Lujan, 504 U.S. at 560. Second, there is no causal connection between plaintiffs nonexistent injury and the conduct complained of, because defendants have not been allowed to act. Id. Consequently, plaintiff lacks standing to challenge the statute and rules as applied to him, because they have not been applied to him at all Furthermore, even if plaintiff has technical standing, the prudential considerations inherent in the ripeness doctrine also weigh against consideration of plaintiffs challenges. There is no demonstrated likelihood that the claimed harm — improper consideration of protected activity-will ever come to pass, and the factual record is completely undeveloped. This is the quintessential case for application of the ripeness doctrine, as plaintiffs speculative challenge depends on "contingent future events that may not occur as anticipated, or indeed may not occur at all." Thomas, 473 U.S. at 580-81.

In opposition to the application of these doctrines of justiciability to his challenge to the state statutes and rules as applied, plaintiff raises two insubstantial arguments. First, he points to the decision of State Bar staff to delay his application because of the pendency of the misdemeanor charges against him. (Brief, docket # 40, at 17). Plaintiff argues that this delay caused him an injury in fact, upon which he may base a claim for prospective injunctive relief. Plaintiffs claim is unpersuasive. The State Bar staff applied Rule 5 of the Rules of the Standing Committee on Character and Fitness, which provides that a referral to a district committee should be delayed in the event of a pending criminal charge. The best that plaintiff can muster in challenging the staff s application of this rule is an argument, based on state law, that in other contexts misdemeanor ordinance charges are not considered criminal prosecutions. Even if plaintiff is correct in this assertion, it does not remotely establish the violation of federally guaranteed rights. Certainly, a state licensing authority may consider a misdemeanor prosecution, even one arising from an ordinance violation, as sufficiently serious to call into question an applicant's fitness for bar membership and to delay action on the application until the criminal matter is resolved. It is of no moment that attorneys, once admitted to the bar, are generally not subjected to professional discipline for misdemeanor convictions. Committee Rule 5 does not preclude bar membership because of a criminal prosecution; it merely requires delay in disposition of an application until the matter is resolved. Plaintiff has no federal constitutional right to exclude misdemeanor prosecutions or convictions from consideration in the bar admission process, regardless of what state law may or may not require. Consequently, the application of Standing Committee Rule 5 to plaintiff has not caused him any constitutional injury and cannot be the basis for prospective injunctive relief.

Plaintiff also asserts that defendants, by raising issues of standing and justiciability, are merely attempting to avoid federal adjudication of plaintiff s claims by an impermissible reliance on the Rooker Feldman doctrine. Plaintiff asserts that, if he is required to pursue his administrative and judicial remedies under state law, he will be foreclosed from relitigating the matter in federal court by the Rooker Feldman doctrine, which precludes the federal district courts from reviewing state-court civil decisions. See District of Columbia Ct. of App. v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). Plaintiff is correct in observing that the Rooker Feldman doctrine will, in most circumstances, preclude a disappointed applicant for membership in a state bar from relitigating claims, even those of a federal constitutional nature, decided in the state-court system. See Feldman, 460 U.S. at 486; McCready v. Michigan State Bar Standing Comm on Character Fitness, 926 F. Supp. 618 (W.D. Mich. 1996), aff'd, No. 96-1126, 1996 WL 637484 (6th Cir. Nov. 4, 1996). This does not represent a ruse by defendants, but is a necessary consequence of our federal system. Applications for attorney admissions, a matter that is uniquely within the province of the states, must be pursued in state administrative and judicial proceedings, with ultimate review of federal questions reserved to the United States Supreme Court. See Feldman, 460 U.S. at 482; Young v. Murphy, 90 F.3d 1225, 1230 (7th Cir. 1996). Consequently, contrary to plaintiffs argument, he will not be denied a federal forum, unless one does not consider the Supreme Court of the United States to be an adequate federal tribunal. Furthermore, Rooker Feldman is not a complete bar to federal claims. First, it does not apply to facial constitutional challenges. See Feldman, 460 U.S. at 482-86; Patmon, 224 F.3d at 509. Second, it does not bar independent claims, which are "distinct from the state court judgment and not inextricably intertwined with it." See Edwards v. Illinois Bd. of Admissions to the Bar, 261 F.3d 723, 729 (7th Cir. 2001).

Whether, and to what extent, plaintiff may have a federal cause of action under Rooker Feldman after pursuing his state administrative and judicial remedies is a question not presently before the court. That issue, like most of the others involved in this case, must abide the result of state proceedings. At this point, plaintiffs challenge to the Michigan state licensing procedures as applied to him is not ripe for federal review.⁹

9 Because I conclude that all of plaintiff s facial claims are meritless and all his challenges to the Michigan system as applied are not ripe, I need not reach defendants' request for an abstention under the doctrine of Younger v. Harris, 401 U.S. 37 (1971). The Supreme Court has extended the rule of Younger from criminal cases to certain civil proceedings, including state attorney disciplinary proceedings, in circumstances in which the proceedings involve "important state interests." Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982); seeBerger v. Cuyahoga County Bar Ass'n, 983 F.2d 718, 723 (6th Cir. 1993).

II. Plaintiffs Motion for Preliminary Injunction

Plaintiff moves for a motion for preliminary injunction curing the constitutional deficiencies that he perceives in the Michigan attorney admission system. Plaintiff seeks two reforms. First, he requests an order enjoining defendants from assessing First Amendment activities of applicants under the "good moral character" standard unless they comply with the New York Times v. Sullivan ¹⁰ decision and are able to demonstrate that the speech in question is not protected by the First Amendment. Second, plaintiff requests that the court order defendants to "establish suitable guidelines or procedures, which comply with First Amendment or general due-process principles," in order to prevent the allegedly unbridled discretion with which state licensing authorities now act. (See Motion for Preliminary Injunction, docket # 12, at 4; Brief in Support of Motion, docket # 13, at 21-22).

10 New York Times v. Sullivan, 376 U.S. 254 (1964).

The issuance of preliminary injunctive relief is committed to the discretion of the district court. See Overstreet v. Lexington-Fayette Urban County Gov't, 305 F.3d 566, 573 (6th Cir. 2002); Mascio v. Public Employees Retirement Sys. of Ohio, 160 F.3d 310, 312 (6th Cir. 1998). In exercising that discretion, the court must consider and balance four factors:"(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction." Paccar, Inc. v. Telescan Technologies, Inc., 319 F.3d 243, 249 (6th Cir. 2003); see Woodland Shopping Center Venture Ltd. P'ship v. CDC Mortgage Capital, Inc., 274 F.3d 1085, 1097 (6th Cir. 2001). These factors are not prerequisites to the grant or denial of injunctive relief, but factors that must be "carefully balanced" by the district court in exercising its equitable powers. See Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998); Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1480 (6th Cir. 1995). Plaintiff fails to meet any of the standards for the issuance of extraordinary equitable relief.

First, plaintiff has not shown a strong likelihood of success on the merits. I will not repeat here the analysis of the merits, or lack thereof, of plaintiff s constitutional claims, as discussed above in this report and recommendation. Suffice it for present purposes to reiterate that (1) all of plaintiff s claims for prospective injunctive relief, except those against defendants Chabot and Berry, are barred by doctrines of immunity; (2) all of plaintiff s facial constitutional challenges are patently meritless; and (3) none of plaintiff s challenges to the Michigan statute and rules as applied to him is ripe for review. These findings, if accepted by the district judge, dispose of all of plaintiff s claims for prospective injunctive relief, leaving only his damage claims against defendants Van Aken and Armbrustmacher for their past conduct. Far from being strong or substantial, plaintiffs constitutional claims lack substantial merit. Even if one affords minimal credence to plaintiffs constitutional challenges, plaintiff is left with the admission, made in open court, that no court has ever applied the First Amendment principles that plaintiff now enunciates to a system of state attorney licensure. Consequently, plaintiff is asking this court to reform an entire state attorney admission process, before a trial and on the basis of the barest of records, in reliance on novel theories of law. This can hardly be deemed a compelling case for the exercise of extraordinary equitable relief.

Nor has plaintiff demonstrated the existence of irreparable harm in the absence of an injunction. The only "harm" that plaintiff now faces is the prospect of submitting his application to the character and fitness process. Numerous other applicants have done so, most of them successfully. Plaintiff has no idea whether his litigation history or other expressive conduct will even be an issue in the character and fitness process, let alone form the basis for a denial of his application. Plaintiffs allegations of irreparable injury arising from the alleged "chilling" of his expressive activity is unsupported on the present record, which shows that plaintiff remains perfectly capable of bringing federal lawsuits whenever he believes his rights have been infringed.

Plaintiff has not bothered to address the third relevant factor — whether issuance of an injunction would cause substantial harm to others. The Supreme Court has repeatedly recognized the states' "extremely important interest" in regulating the practice of law to assure the protection of the public. See, e.g., Middlesex Ethics Comm., 457 U.S. at 432-34. State regulatory proceedings involving attorneys are a process that warrants the federal court's deference. Id. The State of Michigan, and the public at large, obviously face the real prospect of harm by premature federal court intervention in the attorney admission process. If plaintiff s requested injunction were issued, the attorney admission process would be suspended for an indefinite period, while the state's procedures were reformed to address the insubstantial constitutional issues that plaintiff has raised.

Finally, the issuance of preliminary injunctive relief would not serve the public interest. The very purpose of a careful admission process is to protect the public from applicants who lack the character and fitness to discharge the high public trust inherent in the practice of law. Certainly, this interest must be balanced against the First Amendment rights of applicants, but plaintiff has not raised any grounds to suspect, let alone conclude, that his First Amendment rights will not be respected in the character and fitness process. The purpose of a preliminary injunction is to preserve the relative position of the parties until a trial on the merits can be held. Consequently, it is generally inappropriate for a federal court at the preliminary injunction stage to grant relief that should only be entered after a full trial on the merits. See University of Texas v. Camenisch, 451 U.S. 390, 395 (1980). Contrary to this general principle, plaintiff seeks all the relief to which he might be entitled after a full trial, at which he had proved a pervasive and systemic abridgement of First Amendment rights in the attorney admission process, as opposed to presenting baseless speculation about events that might never occur. The equities clearly do not favor federal court interference with the state's operation of its attorney admission process on the basis of the speculative facts and unfounded legal theories advanced by plaintiff in the present action.

Recommended Disposition

For the foregoing reasons, I recommend:

A. That plaintiff s motion for a preliminary injunction (docket # 12) be denied.

B. That the motion to dismiss by the State Bar of Michigan, John T. Berry, Diane

Van Aken and Nicole Armbrustmacher (docket # 7) be granted in part and denied in part as follows:

(1) All claims against the State Bar of Michigan should be dismissed on the ground of Eleventh Amendment immunity.

(2) The invocation of Eleventh Amendment immunity by defendant Berry to bar the claims for injunctive relief against him in his official capacity, and by defendants Van Aken and Armbrustmacher to bar damage claims against them in their personal capacity, should be denied.

(3) The invocation of state-law immunity should be denied, without prejudice to the ability of Van Aken and Armbrustmacher to assert any applicable federal immunity.

(4) However, all claims against all moving defendants for injunctive relief should be dismissed (a) for failure to state a claim upon which relief can be granted on plaintiff s facial challenges to the Michigan attorney admission system, and (b) for lack of standing and ripeness with regard to plaintiffs constitutional challenges to Michigan law as applied to him.

C. That the motion to dismiss of defendants Chief Justice Maura D. Corrigan and the Justices of the Supreme Court (docket # 36) be granted on the basis of legislative immunity.

D. That the motion to dismiss of defendants Chabot and Board of Law Examiners (docket # 43) be denied in part and granted in part, as follows:

(1) All claims against the State Board of Law Examiners should be dismissed on the ground of Eleventh Amendment immunity.

(2) Defendant Chabot's invocation of Eleventh Amendment immunity to bar the claims for injunctive relief brought against her in her official capacity should be denied.

(3) However, all claims against all moving defendant for injunctive relief should be dismissed (a) for failure to state a claim upon which relief can be granted on plaintiffs facial challenges to the Michigan attorney admission system, and (b) for lack of standing and ripeness with regard to plaintiffs constitutional challenges to Michigan law as applied to him.

If the foregoing recommendations are adopted by the court, only the claims for damages against defendants Van Aken and Armbrustmacher in their personal capacity will remain pending.

NOTICE TO PARTIES

Any objections to this Report and Recommendation must be filed and served within ten days of service of this notice on you. 28 U.S.C. § 636(b)(1)(C); FED. R. Civ. P. 72(b). All objections and responses to objections are governed by W.D. MICH. LCivR 72.3(b). Failure to file timely objections may constitute a waiver of any further right of appeal. See Thomas v. Am, 474 U.S. 140 (1985); Neuman v. Rivers, 125 F.3d 315, 322-23 (6th Cir. 1997); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).