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Ninth Circuit:
Attorney-Hopeful Must Challenge Decision of State Bar in California Supreme Court
Opinion Says Relief From Requirements Relating to First Year Law Students Exam Is Admission Decision Over Which State High Court Has Original Jurisdiction
By a MetNews Staff Writer
Denial by the State Bar of California of a petition for a hearing to excuse delay in taking the first-year law students examination—a requirement for those attending unaccredited law schools—may only be challenged by a petition to the California Supreme Court, the Ninth U.S. Circuit Court of Appeals held yesterday in a case brought by an 81-year old law student who took the exam late due to caring for his ailing wife.
Circuit Judge Sandra S. Ikuta wrote the opinion affirming, in part, a dismissal of the action by District Court Judge Michael W. Fitzgerald of the Central District of California. Circuit Judge John B. Owens and Senior Circuit Judge Richard C. Tallman joined in the opinion.
Appealing the dismissal was Douglas Pell who was enrolled as a student at the American Institute of Law, an unaccredited law school operating in Torrance and offering in-person and on-line instruction.
First Year Exam
California Business and Professions Code §6060 requires students attending unaccredited law schools to pass the First Year Law Students Examination (“FYLSX”)—commonly referred to as the “baby bar exam”—-after their first year of law study.
Pursuant to the code section, students who pass the FYLSX within “its first three administrations…upon becoming eligible to take the examination, shall receive credit for all law studies completed to the time the examination is passed.” Students pass the test later than that receive credit for one year of legal study only.
Pell did not take the exam until his sixth opportunity to do so, in November 2020, and he passed on the first try. He contends that exigent circumstances—needing to act as a caregiver for his wife who received a liver transplant—prevented him from taking the exam in a timely manner.
The delay caused him to forfeit 39 hours of credit for courses he completed after his first year of law school.
He petitioned the State Bar of California Director of Admissions Amy Nuñez for a hearing to request an exception to the denial of credit hours, and attached a declaration describing his circumstances. The State Bar summarily denied his petition without explanation.
Pell then filed the complaint in federal court alleging that Nuñez, in her official capacity, violated his Fourteenth Amendment rights to equal protection and substantive and procedural due process. He also sought damages against her personally for an alleged violation of California’s Unruh Civil Rights Act.
Original Jurisdiction
Ikuta noted that while the State Bar of California acts as an administrative arm for the purpose of assisting in matters of admission and discipline of attorneys, the California Supreme Court has exclusive original jurisdiction over the process of admission to the practice of law in the state, and that when reviews a recommendation of the State Bar, it exercises original jurisdiction.
Citing case law finding that the high court has original jurisdiction over matters of admission, Ikuta turned to the question of whether the FYLSX is a matter of admission and said:
“As Pell acknowledged in his complaint, the application of section 6060(h)(1) is part of the admissions process because it affects his ability to take the California Bar Exam and secure a California law license.”
She opined that “[b]ecause the FYLSX is part of the admissions process….challenges regarding the FYLSX or its authorizing statute must be brought by original petition to the California Supreme Court.”
Given its advisory role, Ikuta concluded that any denial by the State Bar of credit for studies, and any subsequent decision not to certify a student for the bar examination, would only be a recommendation to the Supreme Court and, as such, would not deprive a party of any rights until the high court approves the decision.
“Because Pell’s claim does not adequately allege a deprivation of rights, it is not one for which relief can be granted,” she declared.
Ikuta said that Fitzgerald correctly determined that Pell had not suffered any cognizable deprivation of rights under federal law given the fact that he had not petitioned the Supreme Court for review of the denial. However, Fitzgerald concluded that the failure to challenge the State Bar decision in the high court rendered the District Court without jurisdiction and wrote:
“Until review by the California Supreme Court is completed, the…denial of law study credits is not a basis for any claim of deprivation under federal law….The Court therefore lacks subject-matter jurisdiction.”
The court reversed the dismissal of Pell’s state Unruh Act claim and remanded to allow the District Court to exercise its discretion over whether to retain supplemental jurisdiction or to dismiss without prejudice so that the state claim may be pursued in state court.
According to his complaint, Pell is a graduate of the Massachusetts Institute of Technology with a degree in Aeronautics and holds a graduate degree in Aerospace Engineering from the University of Southern California.
Pell worked as a director for Northrop/Grumman until his retirement. He has also served as a reserve officer for the Los Angeles Police Department for over 50 years.
Serving as a reserve officer stimulated his interest in the law and Pell said he desires to support the LAPD Legal Affairs Division in the future.
The case is Pell v. Nuñez, 23-55188.
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