Clifton C. TANG, Plaintiff-Appellant, v. APPELLATE DIVISION OF THE NEW YORK SUPREME COURT, FIRST DEPARTMENT, and Honorable Justices Aron Steuer, et al., Defendants-Appellees.
No. 537, Docket 72-2222
United States Court of Appeals, Second Circuit
Decided Oct. 19, 1973
Argued March 13, 1973. Certiorari Denied April 1, 1974. See 94 S.Ct. 1611.
We reaffirm the opinion of this court and in accordance therewith, the judgment of the district court will be reversed and the case remanded for further proceedings not inconsistent with our opinions.
Hays, Circuit Judge, filed an opinion concurring in the result; Oakes, Circuit Judge, filed a dissenting opinion.
Clifton C. Tang, Plaintiff-Appellant, v. APPELLATE DIVISION OF THE NEW YORK SUPREME COURT, FIRST DEPARTMENT, and Honorable Justices Aron Steuer, et al., Defendants-Appellees.
No. 537, Docket 72-2222.
United States Court of Appeals, Second Circuit.
Argued March 13, 1973.
Decided Oct. 19, 1973.
Certiorari Denied April 1, 1974.
See 94 S.Ct. 1611.
Daniel M. Cohen, Asst. Atty. Gen. of N. Y. (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen. of N. Y., on the brief), for defendants-appellees.
Before HAYS, MULLIGAN and OAKES, Circuit Judges.
MULLIGAN, Circuit Judge:
This is an appeal from a judgment of the United States District Court for the Southern District of New York, dismissing plaintiff‘s action for injunctive and declaratory relief under the Civil Rights Act,
The facts in this case are undisputed. Appellant and his wife have lived in Tenafly, New Jersey since 1954, with their two children. The appellant concedes that this is his permanent residence. Appellant is a practicing attorney in New Jersey, having been duly admitted to the bar of that state. In 1971 appellant took and passed the New York Bar examination and was certified by the Board of Law Examiners in March, 1972. Thereupon appellant submitted a verified application for admission to the New York Bar, complete with the necessary papers, including proof of actual residence in New York since June 1, 1971. The sole purpose of this temporary residence was to comply with the residence requirement set out in
Appellant‘s application for admission to the bar was denied. The appropriate member of the Committee on Character and Fitness stated:
“I have examined the questionnaire and supporting papers of applicant Clifton C. Tang. I find that Mr. Tang possesses the requisite character and fitness for admission to the Bar and the only impediment to his admission is the fact that he is a temporary resident and not a permanent resident.”
Appellant then petitioned the Appellate Division of the Supreme Court of the State of New York for an order to admit him to the Bar. This petition was denied by a court divided 3 to 2. 39 App.Div.2d 357, 333 N.Y.S.2d 964 (1st Dep‘t 1972). The majority interpreted the “actual residence” requirement of
Following the decision of the Appellate Division the appellant brought this action in the District Court for the Southern District of New York which dismissed the complaint.
Since this case was decided by the District Court, the Supreme Court has affirmed Suffling v. Bondurant, 339 F. Supp. 257 (D.N.M.), aff‘d sub nom. Rose v. Bondurant, 409 U.S. 1020, 93 S. Ct. 460, 34 L.Ed.2d 312 (1972), upon which the District Court largely relied. However Suffling did not decide the constitutional issue presented in this case. In Suffling, a three-judge court held that the New Mexico Supreme Court rule requiring six months’ residence before admission to the bar did not violate the equal protection clause or the constitutionally based right to travel. The court reasoned that six months was a reasonable period for providing the state an opportunity to examine the character and fitness of the applicant. The Supreme Court affirmed without opinion.
The question in the instant case differs from Suffling because of the interpretation given to the New York statute by the New York courts, since the Appellate Division interpreted
The appellant has conceded on oral argument that in his state proceeding, he raised the same federal constitutional issues which he now relies upon in the federal court in this action under
There is no doubt that after having been denied admission to the New York bar, Tang could have immediately initiated his § 1983 action in the federal district court. In fact this is the usual procedure in cases where state admission requirements have been attacked on constitutional grounds.5 Instead he selected the state forum to raise the constitutional question which he had the perfect right to do.6 However,
[w]hile the lower federal courts were given certain powers in the 1789
[Judiciary] Act, they were not given any power to review directly cases from state courts, and they have not been given such powers since that time. Only the Supreme Court was authorized to review on direct appeal the decisions of state courts. Thus from the beginning we have had in this country two essentially separate legal systems. Each system proceeds independently of the other with ultimate review in [the Supreme] Court of the federal questions raised in either system. Atlantic Coast Line R.R. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 286, 90 S.Ct. 1739, 1742, 26 L.Ed.2d 234 (1970).
The fact that Tang brought his action under § 1983 does not alter the Rooker principle. Thus in Anderson v. Lecon Properties, Inc., 457 F.2d 929 (8th Cir.), cert. denied, 409 U.S. 879, 93 S.Ct. 132, 34 L.Ed.2d 133 (1972), the plaintiffs had started a state action in which they initially were successful, but were eventually subject to a writ of mandamus issued by the Minnesota Supreme Court ordering the trial court to vacate its judgment in plaintiffs’ favor. They thereupon instituted a § 1983 action in the federal district court alleging that the Supreme Court of Minnesota had inter alia violated their federal constitutional rights of due process and equal protection under the Fourteenth Amendment. In affirming the district court‘s dismissal of the complaint, the court stated:
To the extent that there was any error of constitutional magnitude in the Minnesota Supreme Court‘s decision, plaintiffs’ sole recourse was to the Supreme Court of the United States. See England v. Board of Medical Examiners, 375 U.S. 411, 421, 84 S.Ct. 461, 11 L.Ed. 2d 440 (1964). A fortiori where the state action is prior in time and the constitutional argument has been made in that court, there is no jurisdiction in the district court to reverse the judgment of the state court which is the relief sought here. The additional prayer for declaratory and injunctive relief cannot salvage an otherwise defective complaint and confer jurisdiction where none exists.
Federal courts of inferior jurisdiction have no jurisdiction to review alleged errors in state court judgments. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); Evanson v. Northwest Holding Company, 368 F.2d 531 (8th Cir. 1966). 457 F.2d at 930. This position has also been adopted in Paul v. Dade County, 419 F.2d 10 (5th Cir. 1969), cert. denied, 397 U.S. 1065, 90 S.Ct. 1504, 25 L. Ed.2d 686 (1970); Brown v. Chastain, 416 F.2d 1012 (5th Cir. 1969), cert. denied, 397 U.S. 951, 90 S.Ct. 976, 25 L. Ed.2d 134 (1970).
There is authority in this circuit, Katz v. Connecticut, 433 F.2d 878 (1970); Taylor v. NYCTA, 433 F.2d 665 (2 Cir. 1970), and elsewhere, Bricker v. Crane, 468 F.2d 1228 (1st Cir. 1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1368, 35 L.Ed.2d 592 (1973); P.I. Enterprises, Inc. v. Cataldo, 457 F.2d 1012 (1st Cir. 1972); Howe v. Brouse, 422 F.2d 347 (8th Cir. 1970); Dean Hill Country Club, Inc. v. City of Knoxville, 379 F.2d 321 (6th Cir.), cert. denied, 389 U.S. 975, 88 S.Ct. 476, 19 L.Ed.2d 467 (1967), which squarely holds that a prior state court decision adjudicating federal constitutional questions is binding as res judicata in a subsequent federal action under § 1983.8
We do not rest our opinion here on the basis of res judicata since the respondent in the state action was the Committee on Character and Fitness of the First Judicial District and in the federal action the appellant has named as defendant the Appellate Division, First Department, as well as the three
There is no question but that the state court had jurisdiction of the person and subject matter here involved. Moreover this Court has been particularly chary of intrusion into the relationship between the state and those who seek license to practice in its courts. See Erdmann v. Stevens, 458 F.2d 1205 (2d Cir.), cert. denied, 409 U.S. 889, 93 S.Ct. 126, 34 L.Ed.2d 147 (1972). Had appellant perfected his appeal, the New York Court of Appeals may well have reversed on the merits or followed the federal constitutional reservations expressed by Presiding Justice Stevens in his dissenting opinion. The district court here is bound by the Appellate Division‘s construction of the New York rule and judicial manpower may well be needlessly wasted if the opinion of that court does not in fact represent the law of that state.
While appellant‘s constitutional arguments may well be substantial and we are sympathetic with the plight of one who has lived in a Times Square Hotel for 10 months all to no avail, the concept of federalism should not be scrapped at the whim of the disgruntled suitor.
Affirmed.
HAYS, Circuit Judge (concurring in the result):
I concur in the result on the ground of res judicata.
I do not consider it necessary in order to uphold this result to resort to the vague and uncertain doctrine of “comity.”
OAKES, Circuit Judge (dissenting):
While both my colleagues apparently concede that Suffling v. Bondurant, 339 F.Supp. 257 (D.N.M.), aff‘d mem. sub nom. Rose v. Bondurant, 409 U.S. 1020, 93 S.Ct. 460, 34 L.Ed.2d 312 (1972), does not render appellant‘s constitutional claim wholly insubstantial, thereby calling for convocation of a three-judge court, both affirm the lower court‘s decision dismissing the action.
To reach this conclusion my colleagues rely on two different, although basically related, theories, neither of which were briefed or argued before either this or the district court. Judge Mulligan rests his argument on Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), but he also hints at elements of comity. Judge Hays rests his conclusion on res judicata. These theories are related because both allow that if appellant had not filed a petition with the Appellate Division, then his action here would not be dismissed. Both theories advance a notion that appellant had a choice of remedies—either to appeal the Character and Fitness Committee‘s determination and interpretation through the New York courts or to bring a § 1983 action in Federal court. Each concludes that Mr. Tang elected to proceed through the New York courts by
Applications for admission to the New York bar are themselves actions in the Appellate Division. To say that its determination denying an applicant‘s admission cannot be challenged in a § 1983 action because it is res judicata would be to make a wholly unreasonable distinction between (a) those who challenge rules of admission (1) prior even to application, Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971), (2) when denied the opportunity to take the bar examination, Keenan v. Board of Law Examiners, 317 F.Supp. 1350 (E.D.N.C.1970), (3) when denied admission to the bar in states where such decisions are made by administrative agencies, cf. Lipman v. Van Zant, 329 F.Supp. 391 (N.D.Miss.1971), or (4) when denied certification after passing the bar exam, as suggested by my colleagues2—all of whom may bring § 1983 challenges—and (b) those who challenge rules of admission when denied admission by the court to which the original application was made—the situation in this case.
My colleagues construe appellant‘s original petition for admission as though it were an appeal of some sort. Rule 9404 of the CPLR, however, provides that “[u]nless otherwise ordered by the appellate division, no person shall be admitted without a certificate from the proper committee . . . .” Appellant had been denied a certificate from the committee, but his application for admission had not been denied. Indeed, the committee does not grant or deny the application for admission; “final disposition” of the application is done “by the appellate division” under Rule 9407. Mr. Tang‘s petition to the Appellate Division was, therefore, not an appeal from the committee. Cf. Konigsberg v. State Bar of California, 353 U.S. 252, 254, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957). Rather, it was a petition in respect to his still pending application asking for an order under Rule 9404 admitting him without certification or in the alternative directing the committee to certify him. Because appellant in petitioning the Appellate Division was merely following the CPLR Rules gov-
Judge Hays states that appellant is foreclosed from raising his constitutional claim in a lower federal court on the ground of res judicata. This cannot be. First, res judicata is an affirmative defense which must be set forth in the pleadings.
More importantly, where the causes of action are different or the parties different, res judicata does not apply and collateral estoppel extends only to those issues actually litigated and decided. Commissioner v. Sunnen, 333 U.S. 591, 597-598, 68 S.Ct. 715, 92 L.Ed. 898 (1948); Cromwell v. County of Sac, 94 U.S. 351, 353, 24 L.Ed. 195 (1876); 1B Moore, Federal Practice ¶ 0.405 [3], at 633 (1973). Here, there is no indication that appellant ever claimed before New York courts that the residency requirement of § 9406 was unconstitutional. Judge Mulligan states that appellant conceded on oral argument that he raised this issue in his state proceeding. My memory may not be so good as my colleague‘s, but my interpretation of appellant‘s comments to us and his papers before the Appellate Division in his appendix to the petition is that he merely informed the New York court of the recent United States Supreme Court decisions concerning residency requirements to aid the court in defining “actual” residence. That this was not interpreted as a constitutional attack on the requirement is shown both by the answering affidavit of the chairman of the Committee on Character and Fitness3 and the complete failure of the Appellate Division majority to address any constitutional attack, one which was hinted at in the dissenting opinion of the Appellate Division, to be sure, but solely for purposes of a statutory construction argument.
Judge Mulligan cites Rooker as the basis for his decision. Rooker, however, was an action in equity “to have a judgment . . . declared null and void,” 263 U.S. at 414, 44 S.Ct. at 149, on the basis of constitutional error. A reading of the case makes clear that the relief there sought was to reverse or modify the actual judgment of the state court. While appellant here does ask for such relief (paragraphs E and F of Complaint), his complaint is not limited to that. He also asks for a declaratory judgment that Rule 9406(3) is unconstitutional and for an injunction restrain-
Judge Mulligan hints at considerations of comity to justify denying federal relief to appellant, and cites Erdmann v. Stevens, supra, as an example of this court‘s reluctance to intrude “into the relationship between the state and those who ask license to practice in its courts.” Erdmann, however, dealt only with an attempt to enjoin disciplinary proceedings against an already admitted lawyer; this court denied the injunction on the basis of the sextet of cases led by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Federal courts have not been unwilling to consider constitutional challenges to state bar admission rules and practices, and indeed I find no case where a federal court has dismissed a complaint or affirmed a dismissal on the basis of “comity” in a case challenging a state‘s bar admission practices.4
In conclusion, therefore, I believe that the district court has jurisdiction and that appellant‘s constitutional claims are not insubstantial. I cannot agree that when an application for admission to the New York bar is denied by the only body empowered to grant or deny such applications—the Appellate Division—such a denial insulates the challenged rule from constitutional scrutiny in a § 1983 action.