To understand why this page has been posted, please read the the main page of this site The Hidden Issue of Disability Discrimination in Attorney Licensure first!
The Rooker-Feldman doctrine, named after its leading cases, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), set a limit upon federal court challenges to state court Bar admissions decisions (and other state court judgments). Rooker started as a suit in a federal district court that straightforwardly sought to have an ordinary judgment of a state court, litigated there between two private parties, declared null and void ecause the state statute upon which it was based was said to be unconstitutional. The U.S. Supreme Court held that the lower federal courts lack jurisdiction of such a challenge, which must be brought, if at all, by review of a final judgment of the state’s highest court directly to the U.S. Supreme Court. However, the facts of Rooker are not particularly similar to a challenge to a Bar admission decision as illegally discriminatory.
Feldman, on the other hand, involved the denial of two applicants applications for waiver of a District of Columbia court rule requiring all applicants to be graduates of ABA-approved law schools. Plaintiff Feldman had been admitted to practice in Virginia after a structured apprenticeship, but without graduating from any law school. Plaintiff Hickey had graduated from an unaccredited law school. After both of their applications for waivers of the D.C. rule were denied, both sued in the U.S. District Court, alleging that the denials of the requested waivers were unconstitutional. The district court dismissed each case, following Rooker, and ultimately the Supreme Court affirmed, holding that the applications for waivers in each case led to "judicialquot; proceedings in the D.C. courts, and that lower Federal courts lack subject matter jurisdiction to hear appeals from determinations made by state courts in individual cases in the course of judicial proceedings. However, the Court distinguished challenges to state court rules, as opposed to judicial determinations:
Challenges to the constitutionality of state bar rules, therefore, do not necessarily require a United States district court to review a final state court judgment in a judicial proceeding. Instead, the district court may simply be asked to assess the validity of a rule promulgated in a nonjudicial proceeding. If this is the case, the district court is not reviewing a state court judicial decision. In this regard, 28 U.S.C. § 1257 does not act as a bar to the district court's consideration of the case, and, because the proceedings giving rise to the rule are nonjudicial, the policies prohibiting United States district court review of final state court judgments are not implicated. United States district courts, therefore, have subject matter jurisdiction over general challenges to state bar rules, promulgated by state courts in nonjudicial proceedings, which do not require review of a final state court judgment in a particular case. They do not have jurisdiction, however, over challenges to state court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court's action was unconstitutional. Review of those decisions may be had only in this Court.
During the investigation of my 1992 Bar application, the Disciplinary Administrator of the Kansas Bar urged me to withdraw my application. The main reason he stated for this advice was that , during the course of "several" proceedings on relatively recent applications by other applicants with bipolar disorder, the Kansas Supreme Court had made it clear to him, orally, that they had a policy against admitting any applicant with a major mental disorder unless the applicant could prove his or her condition to be totally and permanently "cured." He also told me the definition of "cured" under this policy: proof of a "cure" would require that I show that I had survived, without relapse, for two to three years without treatment, and that I could further present medical testimony that I would with reasonable medical certainty be able to continue without treatment and without relapse indefinitely in the future. This was a standard I could not meet, but I persevered anyway, hoping to convince the Kansas Supreme Court that its oral policy set an incorrect standard.
After my application was denied, I sued the Kansas Supreme Court in the U.S. District Court for the District of Kansas, alleging both that the oral policy was in violation of the ADA and that its application in my case was illegal. The Federal district court dismissed pursuant to Rooker-Feldman, and the Tenth Circuit subsequently affirmed.Johnson v. Kansas Supreme Court, 888 F.Supp. 1073 (D.Kan. 1995), aff’d 81 F.3d 172 (10th Cir. 1996) (Table). In its recitation of the facts, the District Court repeated the contents of my affidavit concerning my conversations with the Disciplinary Administrator concerning the Kansas court’s oral policy regarding applicants with histories of major mental illnesses. Nevertheless, in a very long discussion of the Rooker-Feldman doctrine, 888 F. Supp. at 1081-1086, the Court first found that it must dismiss my challenge to the decision on my own application under a direct application of Feldman. But it then went on to hold that it had no jurisdiction to consider my ADA challenge to the clearly stated, oral policy of the Kansas court excluding mentally ill applicants as a class, because the oral policy was not a written policy promulgated (and "promulgation" implies action taken in writing) during nonjudicial proceedings. The U.S. District Court thus held in my case that the Rooker-Feldman doctrine permits federal court challenges only to formal, written policies, not oral policies or informal practices no matter how clearly established. The Court then explained that an oral policy or informal practice is necessarily "inextricably intertwined" with the individual adjudicated case in which it is declared, barring lower federal court jurisdiction, and belittled my suggestion that barring review of informal policies and practices would permit state courts to hide illegal discrimination behind binding unwritten policies that are never revealed in writing:
The "federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it." Centifanti v. Nix, 865 F.2d at 1430 (quoting Pennzoil, 481 U.S. at 25, 107 S.Ct. at 1533 (Marshall, J., concurring)). Johnson fully briefed nearly identical disability allegations before the Kansas Supreme Court. Those disability allegations were necessarily addressed and decided when the court denied Johnson's petition. See Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983) (When "a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so."); Arizona v. Evans, ___ U.S. ___, 115 S.Ct. 1185, 131 L.Ed.2d 34, 41 (1995). Because Johnson now wants to assert in federal court the same disability claims he made to the Kansas Supreme Court, he essentially asks the federal court to review the state court's denial of those claims. Landers Seed Co., Inc. v. Champaign Nat. Bank, 15 F.3d 729, 733 (7th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 62, 130 L.Ed.2d 20 (1994); Leaf, 979 F.2d at 599 (Because the plaintiff "raised the same barrage of claims" in the state proceedings, the plaintiff's federal claims are "inextricably intertwined with those raised before and addressed by the" state court.) Federal court review of the Kansas Supreme Court's decision on those disability claims lies exclusively with the United States Supreme Court. 28 U.S.C. § 1257.
Somewhat in passing, Johnson complains that if only formal policies may be challenged and not the application of those policies to particular applicants, then "any state court may discriminate against applicants having any particular disability with impunity by doing so informally (to divest the federal district court of jurisdiction) and refusing to discuss ADA issues in reports and orders denying applications (to evade review by the United States Supreme Court)." (Dk. 24 at 10-11). That a state's highest court would knowingly violate a federal law and then would actively conceal its violation seems such an unlikely proposition that it hardly warrants discussion, let alone being cause for exercising jurisdiction in the face of the Rooker-Feldman doctrine. "[A]ny concern about whether the Feldman rule effectively isolates state court decisions from federal review is unfounded." Facio v. Jones, 929 F.2d at 545. First, the state court decisions are subject to certiorari review by the United States Supreme Court. Second, a litigant in the future may be able to prove that the Kansas Supreme Court has promulgated rules in a non-judicial proceeding regarding the admission of bar applicants with mental impairments. Johnson has fully pursued his remedy in the Kansas Supreme Court and subsequently in the United States Supreme Court and is bound by the adverse result. Grossgold v. Supreme Court of Illinois, 557 F.2d 122, 125 (7th Cir. 1977).
Johnson v. Kansas Supreme Court, 888 F.Supp. 1073, 1086 (D.Kan. 1995).
It should be noted that a July 2007 review article, Lauren Chanatray, "Professional licensing issues: Title II of the ADA applied to state and local professional licensing," viewed as "erroneous" the District of Kansas' conclusion that it lacked jurisdiction under the Rooker-Feldman doctrine over my challenge to an openly orally declared but unwritten discriminatory policy. However, this article came too late to be of any help to me
In 2005, the U.S. Supreme Court sharply limited the scope of the Rooker-Feldman doctrine in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005). The effect of the Exxon Mobil case has been recently described by one lower Federal court considering its jurisdiction as follows:
The Rooker-Feldman doctrine is jurisdictional in nature. It provides that lower federal courts… lack jurisdiction to engage in appellate review of state court determinations. Bolden v. Topeka, 441 F.3d 1129, 1139 (10th Cir. 2006). Only the United States Supreme Court may do so. Id. It is distinct from other preclusion doctrines, such as collateral estoppels and res judicata, not only because it is jurisdictional in nature, but also because it is applicable only in very limited circumstances. As explained by the Supreme Court:
""The Rooker-Feldman doctrine … is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. Rooker-Feldman does not otherwise override or supplant preclusion doctrine…""
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005)
The Exxon Mobil Court further emphasized that Rooker-Feldman does not stop a federal court from exercising subject-matter jurisdiction simply because a party attempts to litigate in federal court a matter previously litigated in state court. If a federal plaintiff "present[s] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party… then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion." Id., at 293, 125 S.Ct. 1517 (quoting GASH Assocs. v. Rosemont, 995 F.2d 726, 728 (7th Cir. 1993)). In other words, when the federal court tries a matter anew and reaches a conclusion contrary to a judgment rendered by a state court, without concerning itself with the bona fides of the prior judgment, it is not conducting appellate review. Bolden, 441 F.3d at 1143. It is only when the claim or defense raised seeks specifically to attack the prior state court judgment or seeks relief for injury caused by the state court judgment that the Rooker-Feldman doctrine applies.
In re Jensen, 395 B.R. 472, 489 (B.C. D.Colo. 2008).
Thus, it appears that, if my case had been brought in the U.S. District Court on some date after Exxon Mobil was decided, rather than 11 years before it was decided, the District Court likely would have found that it had subject matter jurisdiction of at least that aspect of my claim that challenged the legality of the informal but binding oral court policy. However, in the light of the District Court’s decision in my case, which is still good law in the Tenth Circuit, a challenge to a formal, written court rule, like Kansas Supreme Court Rule 704(k), would present a much stronger case than a challenge to an informal policy. Moreover, a plaintiff who actually has some chance of being admitted in Kansas someday (which I obviously do not) would undoubtedly present a much stronger test case than would my case.
However, the official documents in my case might be useful to someone else as evidence of the manner in which the Kansas Supreme Court actually interprets its written rules in cases involving stigmatized disabilities, if a theory could be found for its admissibility as evidence. I'm willing to cooperate in establishing the grounds form its admissibility.
Lance v. Dennis, 126 S.Ct. 1198 (2006) held that the Rooker-Feldman doctrine applies to bar suits in lower federal courts only when brought by the party who lost in state court, not when brought by other parties in privity with that party. It also clarified again that Rooker-Feldman "doctrine applies only in 'limited circumstances,' Exxon Mobil, supra, at 291, where a party in effect seeks to take an appeal of an unfavorable state-court decision to a lower federal court." In Lance, the Court held that a final judgment of the Colorado Supreme Court in a congressional redistricting suit brought by the state's attorney general did not bar, under the Rooker-Feldman doctrine, a citizen suit in federal district court that raised similar federal issues. Under Colorado law, the individual citizen-plaintiffs were in privity with the attorney general, but this was not enough to require the application of Rooker-Feldman.
Similarly, a class of plaintiffs that includes me is not me, and should be able to challenge the policies evidenced by the documents in my case, and to use the documents from my case as evidence of that policy, without running aground on Rooker-Feldman. The only possible effect of Rooker-Feldman on such a case would be to limit the individual remedies available to me, personally, as a result of such a suit (and even this limitation isn't certain). All of the other members of the class should be able to have full remedies.
Return to the the main page of this site The Hidden Issue of Disability Discrimination in Attorney Licensure