January 2006
Featured Disciplinary Case

Topic
An applicant’s federal civil rights case seeking admission to the bar becomes moot after the applicant is admitted to practice.

Summary

Dennis Dubuc v. John T. Berry and Linda V. Parker, Michigan Board of Law Examiners, State Bar of Michigan, and George Googasian, No. 04-1901 (Sixth Circuit, January 31, 2006). Dubuc applied for admission to the Michigan Bar in 1997. Thereafter, a district character and fitness committee issued an unfavorable recommendation, citing a series of lawsuits in which Dubuc was found to have filed frivolous claims, violated court orders, and engaged in the unauthorized practice of law (the Green Oak matter). The committee recited findings of contempt imposed against Dubuc, his unauthorized practice of law, and his nondisclosure of a criminal conviction on his application for a license. Dubuc appealed the decision and thereafter the standing committee conducted three days of hearings before upholding the unfavorable recommendation. Besides the offenses listed by the district committee, the standing committee noted Dubuc's unsubstantiated allegations of criminal conduct against the judge and an attorney in the Green Oak matter, his filing of frivolous motions to disqualify and attorney grievances, additional instances of his giving legal advice to an unrepresented party, and Dubuc's testimony at the hearing, which the committee found neither "sincere [nor] believable." Dubuc appealed and requested a hearing before the BLE itself. The BLE conducted a two-day hearing and later issued an opinion affirming the standing committee decision. The BLE indicated that, while it did not object to Dubuc's previous filing of thirty-eight lawsuits, it did oppose "the manner in which the litigation was conducted." The BLE noted that Dubuc's "testimony and demeanor in front of the Board dispelled any notion that the Green Oak case [was] an aberration." Dubuc filed a motion for rehearing, which the BLE denied. Dubuc then filed a motion for superintending control with the Michigan Supreme Court. This relief was denied as was his subsequent petition for certiorari to the United States Supreme Court. Undaunted by his procedural losses, Dubuc filed a federal civil rights action seeking injunctive relief but not seeking monetary damages. Named as party defendants were the Michigan Board of Bar Examiners, the Chairperson of the Board, and the Executive Director of the Michigan Bar, John T. Berry (who currently serves as the NOBC’s Delegate to the ABA House of Delegates). Dubuc contended that the rules governing the time of his eligibility to reapply for admission after denial were unconstitutional. He also claimed that defendants unconstitutionally used his First Amendment activities as grounds for denying his admission to the Bar. The district court denied any relief against the state based upon Eleventh Amendment immunity and the Sixth Circuit eventually affirmed this decision, but remanded the case to allow Dubuc to proceed against individual state officials. After remand, the BLE filed a motion for summary judgment and/or judgment on the pleadings. The district court granted the motion and dismissed the case. Dubuc appealed. While the action was pending in the district court on remand, Dubuc reapplied for admission to the state bar. His application was referred again to a district character and fitness committee. This time, the committee decided in Dubuc's favor. The BLE accepted the favorable decision and on September 8, 2004, Dubuc was admitted to the practice of law in Michigan. Nonetheless, he continued to prosecute the federal appeal, arguing that the District Court erred in denying his as-applied challenge to Michigan's bar admission procedures and stating that relief was proper because, "[n]o one else should be required to endure the constitutional injury inflicted on [me]". The State Bar countered by suggesting that the case was moot owing to Dubuc's admission to practice. The Court of Appeals analyzed whether Dubuc could "show, first and foremost, an invasion of a legally protected interest that is concrete and particularized and actual or imminent. An interest shared generally with the public at large in the proper application of the Constitution and laws will not do." The Court concluded that no case or controversy existed because Dubuc had been granted admission to the Michigan bar. It ruled that a federal court may not adjudicate challenges to state measures absent a showing of actual impact on the challenger and Dubuc could no longer make such a showing. Further, because Dubuc's authorization to practice law prevented him from deriving any direct benefit from a ruling in his favor, the federal courts were not empowered to further his belief that he was the vindicator of future bar applicants' rights. "The decision to seek review is not to be placed in the hands of concerned bystanders, persons who would seize it as a vehicle for the vindication of value interests." Finally, the Court ruled that, even if Dubuc’s case had not become moot, that portion of case concerning his challenge to a disparate waiting period for reapplication imposed on applications who appealed unfavorable BLE decision would be moot, given that BLE had voluntarily amended its procedures to address the discrepancy.