Lawrence v. Van Aken

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0347n.06
Filed: May 16, 2006

Nos. 05-1082, 05-1397

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FRANK J. LAWRENCE, JR., )
)
Plaintiff-Appellant,
)
v. )
) ON APPEAL FROM THE UNITED
RAE LEE CHABOT, in her official capacity ) STATES DISTRICT COURT FOR THE
and all Board Members of the Michigan Board WESTERN DISTRICT OF MICHIGAN
of Law Examiners; MICHIGAN BOARD OF )
LAW EXAMINERS; JOHN BERRY, in his )
official capacity as Executive Director of the
)
State Bar of Michigan; STATE BAR OF
MICHIGAN; MAURA D. CORRIGAN, in her
official capacity and all Justices of the
Michigan Supreme Court; DIANE VAN
AKEN, in her individual capacity; NICOLE
ARMBRUSTMACHER, in her individual
capacity,

Defendants-Appellees.

Before: NELSON, DAUGHTREY, and ROGERS, Circuit Judges.

ROGERS, Circuit Judge. Plaintiff Frank J. Lawrence, Jr., brought suit pursuant to 42

U.S.C. § 1983 against various officials and entities of the State of Michigan, alleging that those

individuals unconstitutionally deprived him of admission to the State Bar of Michigan. The district

court denied the relief Lawrence sought, and Lawrence now challenges numerous rulings of the
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Lawrence v. Chabot

district court. We affirm.

I.

Frank J. Lawrence, Jr., graduated from the University of Detroit, an accredited law school

in the state of Michigan, and, as required, filled out an “Affidavit of Personal History” prior to

sitting for the July 2001 Michigan bar examination. JA 1344. In that affidavit, he truthfully noted

that a misdemeanor charge of interfering with a police officer in Bloomfield Township was still

pending against him. JA 1347, 1351. As a result, even though Lawrence passed the bar

examination, his application for admission to the state bar was not immediately processed, in

accordance with Rule A5 of the bar’s Rules of the Standing Committee on Character and Fitness.

JA 120. Rule A5 states as follows:

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.

JA 924.

In connection with his defense against the misdemeanor charge, Lawrence filed suit against

Bloomfield Township in both state and federal court, seeking to enjoin the criminal prosecution.

JA 1324. Those efforts proved unsuccessful, however, and the matter was scheduled for trial.

Months before the start of the proceedings, the township’s attorney, Thomas Ryan, a former

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president of the State Bar of Michigan, offered to allow Lawrence to enter a plea under advisement.

According to Ryan, “Under Michigan procedure, such a plea does not result in a conviction on the

defendant’s record, and the charge is dismissed, if the defendant complies with terms set by the court

during a specific period of time.” JA 1324. Lawrence rejected the offer. JA 1324.

Over a year later, Lawrence’s attorney approached Ryan immediately before the

commencement of the jury trial to discuss the possibility of a “plea under advisement.” JA 1324.

Bloomfield Hills District Judge Edward Avadenka was present, but Lawrence was not present. JA

1324. Ryan noted that, although Lawrence had once before rejected such an offer, the township

would consider re-extending such leniency if Lawrence found such an option acceptable. At that

time, Judge Avadenka also “indicated that, if the parties resolved the case with a plea under

advisement, he would communicate to the Character and Fitness Committee [of the state bar] that

a plea under advisement constitutes a conclusion of the case,” thus permitting the committee to act

upon Lawrence’s bar application. JA 1324-25. Lawrence again rejected the offer, however, and the

matter proceeded to trial. Lawrence was found guilty of the charge of interfering with a township

officer. JA 1317, 1325.

A week after his conviction, Lawrence wrote a letter to defendant Diane Van Aken, the

manager of the Character and Fitness Department of the State Bar of Michigan, informing her that

the criminal charge that had previously held up consideration of his application had been resolved.

JA 1317. In that letter, Lawrence accused Judge Avadenka of improperly using Lawrence’s “law

license as a bargaining chip” by allegedly offering to speak to the Character and Fitness Committee

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on Lawrence’s behalf only if Lawrence “dropped the civil case against the Township.” JA 1317.

In light of that inflammatory allegation of judicial misconduct, defendant Nicole

Armbrustmacher, an investigator in the Character and Fitness Department, telephoned Judge

Avadenka to verify the assertions in Lawrence’s letter. JA 1312. Judge Avadenka explained the

actual content of the plea negotiations to Armbrustmacher and stated that while he “did offer to

advise the Character and Fitness Committee that the case was concluded, Mr. Lawrence’s law

license was not used as a bargaining chip in any way.” JA 1336.

Meanwhile, with the criminal proceedings against Lawrence concluded, the state bar began

processing Lawrence’s application. Because of various concerns regarding the plaintiff’s litigation

history and financial difficulties, the Standing Committee on Character and Fitness referred the

application to a district committee to conduct an interview with Lawrence. JA 1397-1400.

Lawrence responded by filing a motion for adjournment of the interview, alleging for the first time

that, under Michigan law, violations of township ordinances should not be considered criminal

cases. JA 1403-04. After the request for adjournment was denied, JA 1410, Lawrence wrote to Van

Aken withdrawing his bar application. JA 1411-13.

Lawrence later filed a new complaint in federal district court naming multiple defendants:

Rae Lee Chabot, the chairperson of the Michigan Board of Law Examiners, sued only in her official

capacity; the Michigan Board of Law Examiners; John Berry, the executive director of the State Bar

of Michigan, sued only in his official capacity; the State Bar of Michigan; Maura Corrigan, then the

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Chief Justice of the Michigan Supreme Court, sued only in her official capacity; Van Aken, sued

only in her individual capacity; and Armbrustmacher, sued only in her individual capacity. In the

complaint, Lawrence sought declarations that certain rules of the state bar were unconstitutional, that

the state bar and the Board of Law Examiners violated Lawrence’s First and Fourteenth Amendment

rights to engage in expressive conduct (by challenging his criminal misdemeanor charge), and that

Van Aken and Armbrustmacher violated those same rights and his right of personal privacy. He

further sought monetary damages from Van Aken and Armbrustmacher. He also sought injunctive

relief prohibiting the use of private information or expressive conduct protected by the First and

Fourteenth Amendments in determining an applicant’s fitness to practice law within the State of

Michigan. Concomitantly, Lawrence also sought to enjoin the Board of Law Examiners and the

State Bar of Michigan from interfering with his attempts to practice law within the state. JA 11-39.

All defendants eventually filed motions to dismiss with the district court, raising defenses

based on various forms of immunity, lack of standing, lack of ripeness, and failure to state claims

upon which relief could be granted. JA 40-41, 169, 245. Lawrence also filed his own pretrial

motion seeking a temporary restraining order and a preliminary injunction based upon his belief that

the defendants threatened to chill protected First Amendment freedoms by having no suitable

guidelines or procedures to evaluate a bar applicant’s “good moral character.” JA 58.

These various motions were first referred to a magistrate judge for a preliminary report and

recommendation. After a comprehensive analysis of the claims and applicable law, Magistrate

Judge Joseph Scoville recommended that Lawrence’s motion be denied, that all claims against the

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State Bar of Michigan and the State Board of Law Examiners be dismissed due to Eleventh

Amendment immunity, and that the claims against Chief Justice Corrigan and other members of the

state supreme court be dismissed on the basis of legislative immunity. Magistrate Judge Scoville

also recommended that all claims for injunctive relief against defendants Berry, Van Aken,

Armbrustmacher, and Chabot be dismissed: Lawrence’s facial challenges to the attorney-admission

system failed to state a claim upon which relief could be granted, and his as-applied challenges

failed because Lawrence lacked standing and because his claim was not ripe. JA 306-24. As noted

by the magistrate judge, “[i]f 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.” JA 324.

Lawrence filed objections to the report and recommendation with the district court. In

addition, he moved that both Magistrate Judge Scoville and District Judge David McKeague be

disqualified from the case based upon their service on the State Bar of Michigan’s Standing

Committee on United States Courts. Judge McKeague denied the motion for disqualification and

adopted the report and recommendation of the magistrate judge in all respects. JA 517-23.

Lawrence then filed a notice of appeal concerning the denial of his request for a preliminary

injunction, JA 524, and the matter was transmitted to this court for appellate review. In March 2004,

this court denied Lawrence’s request for a stay of all district court proceedings pending appeal. JA

763-64. Seven months later, this court affirmed the denial of Lawrence’s motion for a preliminary

injunction. In doing so, we noted that Lawrence’s allegations of bias on the part of the magistrate

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Lawrence v. Chabot

judge and the district judge were not properly before us on that appeal. JA 1133. We also denied

Lawrence’s motion for injunctive relief and the defendants’ motions to dismiss that appeal. JA

1130-33.

Simultaneously with the perfection of his appeal to this court regarding the denial of his

motion for a preliminary injunction, Lawrence filed a “Request For Clerk’s Entry Of Default”

against Van Aken and Armbrustmacher, given those defendants’ failure “to file an answer to the

complaint within 10 days of [the district court’s] denial of their Motions to Dismiss.” JA 525. After

the clerk entered defaults, JA 526, the individual defendants moved to set aside the defaults for good

cause. JA 527-29. Although Lawrence also filed a motion for default judgment pursuant to Rule

55(b)(2) of the Federal Rules of Civil Procedure, JA 534, Magistrate Judge Scoville set aside the

entry of default after concluding “that defendants’ failure to plead after partial denial of their motion

to dismiss was not willful, that defendants have at least one meritorious defense, and that plaintiff

suffered absolutely no prejudice by the brief delay in filing an answer.” JA 577. The district court

then affirmed the magistrate judge’s order in all respects. JA 765-70.

Subsequently, Van Aken and Armbrustmacher moved for judgment on the pleadings on the

basis of absolute quasi-judicial immunity or, in the alternative, for summary judgment on the basis

of qualified immunity or “lack of merit in plaintiff’s claims and failure to raise any genuine issue

of fact for trial.” JA 1158, 1258-62. In a 47-page memorandum opinion, the district court granted

summary judgment to the defendants, concluding that Van Aken and Armbrustmacher were entitled

to absolute quasi-judicial immunity and to qualified immunity from suit. JA 1134-80. Van Aken

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and Armbrustmacher then filed an application for costs, and the court clerk taxed Lawrence in the

amount of $1,953.60. JA 1231. Following the filing of objections from Lawrence, the district court

denied each of those objections and entered a judgment in favor of the individual defendants for the

entire amount of costs assessed. JA 1252-56.

At some point during the pendency of this litigation, which is not disclosed in the record,

Lawrence reapplied to the Michigan bar. In one of his briefs to the district court, Lawrence claimed

that his application had been held in abeyance since August 18, 2004. JA 1199-1200. A few days

before oral argument in this appeal, Lawrence submitted supplemental “authorities” allegedly

demonstrating that his latest application had been denied.

II.

We address the following issues on appeal: (1) whether the district judge and the magistrate

judge should have recused themselves; (2) whether the defendants were entitled to various forms

of immunity; (3) whether the Michigan attorney-licensing scheme is facially unconstitutional; (4)

whether the Michigan attorney-licensing scheme is unconstitutional as applied to him; (5) whether

the district court abused its discretion in setting aside the entry of default against Van Aken and

Armbrustmacher; (6) whether the magistrate judge should have struck the defendants’ affirmative

defenses; and (7) whether the district court abused its discretion in assessing costs against Lawrence.

Because the district court made correct legal rulings and did not abuse its discretion, we affirm.

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1. Recusal of the Magistrate and District Judges

The magistrate and district judges in this case were not required to recuse themselves.

Lawrence insists that the magistrate judge and the district judge who were assigned to his case

should have been disqualified for bias because both jurists served on a standing committee of the

State Bar of Michigan, one of the named defendants in this action. A federal judge “shall disqualify

himself [when] . . . [h]e knows that he . . . has a financial interest in the subject matter in controversy

or in a party to the proceeding, or any other interest that could be substantially affected by the

outcome of the proceeding . . . .” 28 U.S.C. § 455(b)(4). A “financial interest” is defined as, among

other things, “a relationship as director, adviser, or other active participant in the affairs of a party

. . . .” 28 U.S.C. § 455(d)(4). From this definition of “financial interest,” Lawrence argues that the

judges should have disqualified themselves because they were advisers or active participants in the

Michigan Bar. Lawrence reads the statute at issue too strictly.

Even assuming that Judge McKeague and Magistrate Judge Scoville were advisers to the

Michigan Bar, they were not required to recuse themselves. Whether recusal is required when one

has a financial interest in the affairs of a party depends upon whether one acts as an adviser to a for-

profit or nonprofit party. We adopt the reasoning of the Third Circuit, which has held that when a

judge allegedly has a relationship with a nonprofit organization, as opposed to a for-profit

organization, a “substantial effect test is appropriate.” Plechner v. Widener College, Inc., 569 F.2d

1250, 1262 n.6 (3d Cir. 1977). In Plechner, the Third Circuit held that a judge, who was a member

of the ABA, did not need to recuse himself even though the propriety of the ABA’s dismissal as a

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party from the case was at issue. The court discussed the same provisions at issue here and

distinguished between a judge’s relationship with business organizations and “a nonprofit

organization concerned with improvement of the legal profession and the public good.” Id. The

court continued that “[t]he considerations which led to the statutory test of possession of an interest,

no matter how small, in a profit corporation are not present here and we think it inappropriate to use

that test.” Id. The Third Circuit’s reasoning is sound because the provisions defining “financial

interest” are clearly concerned about economic interests. For instance, § 455(d)(4) not only

discusses legal and equitable interests but also provides exceptions from disqualification when a

judge holds securities and mutual funds in both for-profit and nonprofit organizations. See 28

U.S.C. § 455(d)(4). Lawrence has not identified how Judges McKeague and Scoville’s participation

in a bar committee that has nothing to do with bar admission would be substantially affected by the

outcome of this case concerning bar admission.

If we were to read the provisions as strictly as Lawrence would have us do—holding that a

judge must recuse himself when he or she is a participant in any legal, nonprofit organization—it

is likely that no federal judge in Michigan could hear his case because all of the judges would

presumably be “active participants” in the Michigan Bar. It is unlikely that Congress meant to reach

such memberships, which are either mandatory or strongly encouraged, when enacting these recusal

statutes. Lawrence has not identified, and we have not uncovered, any legislative history or caselaw

to suggest the contrary. Indeed, the Fifth Circuit has noted that judges’ bar memberships do not

require disqualification even if the bar is a party to the suit. See Parrish v. Bd. of Comm’rs of Ala.

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State Bar, 524 F.2d 98, 103-104 (5th Cir. 1975) (en banc). Moreover, it is striking that, after more

than thirty years from the date of the disqualification statute’s enactment, no case, at least of which

we are aware, has held that judges who are members of a state bar may not hear cases concerning

that state bar.1 Judges McKeague and Scoville, therefore, were not required to disqualify themselves

under 28 U.S.C. § 455(b).

2. Claims of Immunity

Lawrence also challenges the district court’s immunity determinations on appeal. He

challenges the grant of sovereign and quasi-judicial immunity to the various defendants. His

challenges are without merit.

a. Eleventh Amendment Immunity

The district court in this case correctly determined that the State Bar of Michigan and the

Michigan Board of Law Examiners must be dismissed as defendants because of their Eleventh

Amendment sovereign immunity. The Eleventh Amendment to the United States Constitution

provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit

in law or equity, commenced or prosecuted against one of the United States by Citizens of another

State, or by Citizens or Subjects of any Foreign State.” Although by its explicit wording the

1
We do not address today whether a judge must recuse himself or herself if a member of a
nonprofit organization that is less nonpartisan, less all-embracing, or less directly related to the legal
profession.

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amendment forbids only suits against states filed by nonresidents of that state, the Supreme Court

of the United States long ago ruled that the amendment’s prohibitions extend to suits against a

sovereign state by its own citizens. See Hans v. Louisiana, 134 U.S. 1, 15 (1890). Moreover, as the

Court held in Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984) (citations

omitted), “this jurisdictional bar applies [to the state or its agencies] regardless of the nature of the

relief sought.”

In light of these established constitutional principles, the district court in this case correctly

determined that the State Bar of Michigan and the Michigan Board of Law Examiners are entitled

to Eleventh Amendment immunity. As we held in another case involving a challenge to the rules

governing application for admission to the State Bar of Michigan, “[b]ecause they are arms of the

Michigan Supreme Court for all purposes relevant to this lawsuit, the Board and the Bar are state

agencies immune from this lawsuit under the Eleventh Amendment.” Dubuc v. Mich. Bd. of Law

Exam’rs, 342 F.3d 610, 615 (6th Cir. 2003). The district court therefore properly dismissed the State

Bar of Michigan and the Michigan Board of Law Examiners as defendants from Lawrence’s action.

b. Legislative Immunity

The district court also correctly dismissed Chief Justice Maura Corrigan and the associate

justices of the Michigan Supreme Court as defendants after concluding that they were entitled to

absolute legislative immunity from suit. In Supreme Court of Virginia v. Consumers Union of the

United States, Inc., 446 U.S. 719, 734 (1980), the Supreme Court of the United States recognized

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that state supreme courts could be vested with the state’s “entire legislative power” when

promulgating rules for the regulation of a state bar. Consequently, when issuing guidelines for the

admission, conduct, or discipline of attorneys, a state’s highest court is acting in its legislative

capacity and is thus immune from suit, whether for retrospective or prospective relief, regarding

those rules. See id. Likewise, we have previously held that “[t]he Michigan Supreme Court’s

promulgation of rules . . . is a legislative activity.” Abick v. Michigan, 803 F.2d 874, 878 (6th Cir.

1986). It follows that “the justices of the Michigan Supreme Court[, when] acting in their legislative

capacity[,] are entitled to legislative immunity.” Id.

Lawrence’s attempt to deprive the chief justice and the associate justices of their absolute

immunity by arguing that they were engaged in an executive function fails. Lawrence’s complaint

alleges that the state supreme court not only promulgates but also enforces the Rules Concerning

the State Bar of Michigan. JA 15. The justices’ enforcement actions, argues Lawrence, are not

protected by legislative immunity. See Sup. Ct. of Va., 446 U.S. at 735-36. Lawrence’s argument

is not well taken. Lawrence’s mere mention of the word “enforces” does not alter the thrust of his

complaint. Although he does seek relief against some defendants for their enforcement of the rules

against him, his prayer for relief implicates the chief justice and the associate justices only to the

extent that they were responsible for promulgating the rules used by other defendants to delay

Lawrence’s attempt to gain admission to the state bar. The district court, therefore, correctly

determined that the chief justice and associate justices of the Michigan Supreme Court were entitled

to absolute immunity in this case.

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c. Qualified Immunity

Van Aken and Armbrustmacher are entitled to qualified immunity as to Lawrence’s claims

against them. On appeal, Lawrence has argued only that qualified immunity was not proper because

Van Aken and Armbrustmacher engaged in ministerial, as opposed to discretionary, functions. See

Lawrence’s Br. at 23, 43-47; Lawrence’s Reply Br. at 6-7. His contention, for the reasons stated by

the district court, fails. In Harlow v. Fitzgerald, the Supreme Court held that “government officials

performing discretionary functions generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” 457 U.S. 800, 818 (1982) (emphasis added). We agree with

the district court:

[T]he defendants exercised significant discretion. State Bar staff determines
whether, based on the information provided and obtained through investigation, there
is “significant” adverse factual information such that the application is referred to a
district committee, or whether there is “no significant adverse factual information”
such that the staff would forward a favorable recommendation to the Board of Law
Examiners. When a referral is made to a district committee, the staff drafts a notice
identifying the issues that will be considered by the district committee. The staff
generally determines when an application is ready for referral to a district committee,
and it did so in this case. Plaintiff contends that the defendants did not exercise any
sort of judgment when they held his application in abeyance pursuant to Rule A(5)
of the standing committee rules or procedure. Rule A(5) provides that an application
“should” be delayed while the applicant has criminal charges pending, but does not
compel that result in all cases. The court finds that defendants’ actions in
investigating and preparing a written report to assist the eventual judicial decision-
maker are functionally analogous to the functions performed by probation officers
in conducting investigations and preparing presentence reports—functions for which
they are entitled to absolute quasi-judicial immunity.

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JA 1160-61 (footnote and citations omitted). Therefore, the ministerial exception to qualified

immunity is not applicable here.

Although normally we next consider whether the defendants’ conduct as alleged violated a

constitutional right, it is unnecessary to do so here because Lawrence has failed to argue on appeal

that any of the alleged constitutional violations were “clearly established” at the time that defendants

acted. To determine whether a state employee is entitled to qualified immunity, we employ a two-

step analysis: “(1) whether, considering the allegations in a light most favorable to the party injured,

a constitutional right has been violated, and (2) whether that right was clearly established.” Estate

of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005). The burden of proving that the right

was clearly established “rests squarely on the plaintiff,” Cope v. Heltsley, 128 F.3d 452, 459 (6th

Cir. 1997), and the “failure to present an argument in an appellate brief waives appellate review,”

Brown v. I.R.S., 3 Fed. App. 272, 274 (6th Cir. Jan. 26, 2001) (referring to Buziashvili v. Inman, 106

F.3d 709, 719 (6th Cir. 1997), and Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 881 (6th Cir.

1996)). Lawrence has failed to argue, much less provide any case law to demonstrate, that the

defendants violated clearly established constitutional rights.2 There is no need to decide whether

the defendants violated Lawrence’s constitutional rights when Lawrence waived the issue of whether

2
Avoiding the preliminary question of whether there was a constitutional violation does not
contravene Saucier v. Katz, 533 U.S. 194, 201 (2001). Saucier instructs lower courts to decide
whether a constitutional right has been violated before deciding whether that violated right is clearly
established. In this case, we do not decide on the merits whether any allegedly violated right was
clearly established. We simply hold that Lawrence has waived any challenge on appeal to the
defendants’ qualified immunity defense by failing to make any argument that the rights violated
were clearly established. Saucier does not compel courts to answer waived issues.

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the rights were clearly established. Lawrence cannot demonstrate that the defendants are not entitled

to qualified immunity. For these reasons, we do not disturb the district court’s holding that Van

Aken and Armbrustmacher are entitled to qualified immunity.

3. Facial Challenges to Bar Rules

Lawrence’s facial challenge to the Michigan attorney-licensing scheme fails to state a claim

upon which relief can be granted. The Michigan Bar’s process for licensing attorneys does not

unconstitutionally infringe upon an applicant’s First Amendment right to free expression or give

unbridled discretion to the decision-maker. The admission process also provides sufficient review

of adverse character determinations.3

By statute, the Michigan legislature has provided the general qualifications for admission

to the state bar:

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, 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

3
The only defendants remaining in the litigation not entitled to some sort of immunity are
Chabot, in her official capacity as chair of the Board of Law Examiners, and Berry, in his official
capacity as executive director of the State Bar of Michigan. As previously mentioned in this
opinion, the State Bar and the Board of Law Examiners are entitled to sovereign immunity, and the
chief justice and associate justices of the Michigan Supreme Court are entitled to legislative
immunity. Sovereign and legislative immunity shield defendants from retrospective and prospective
relief. See Pennhurst, 465 U.S. at 100 (sovereign immunity), and Sup. Ct. of Va., 446 U.S. at 732-33
(legislative immunity). Van Aken and Armbrustmacher were only sued in their individual capacities
and are entitled to qualified immunity.

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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 Ann. § 600.934(1). The term “good moral character” is defined as:

The phrase “good moral character”, or words of similar import, when used as a
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 Ann. § 338.41(1).

In addition, the state legislature has recognized that the state “supreme court has the power

to provide for the organization, government, and membership of the state bar of Michigan, and to

adopt rules and regulations concerning the . . . investigation and examination of applicants for

admission to the bar.” Mich. Comp. Laws Ann. § 600.904. To that end, the Michigan Supreme

Court promulgated Rule 15, Section 1, which calls for the appointment of a standing committee on

character and fitness within the state bar, as well as additional district character-and-fitness

committees. JA 89. Although an applicant whose “past conduct discloses no significant adverse

factual information” shall be recommended to the Board of Law Examiners directly without referral

to a character-and-fitness committee, all other applicants must first be referred to the appropriate

district committee for a personal interview to evaluate any areas of concern. See Mich. S. Ct. R. 15,

§§ 1(5)(a) and (b).

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The standing committee on character and fitness in turn promulgated its own rules of

procedure, including Rule A(5), which is at the root of this dispute between Frank Lawrence and the

defendants. Rule A(5) provides simply that, when examining an applicant’s fitness for admission

to the state bar:

If the 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.

JA 924.

The Michigan attorney-licensing system does not infringe upon the First Amendment right

of free expression. It merely provides reasonable means to fulfill the state’s goal of ensuring that

attorneys are of sound moral character. Michigan’s licensing system demonstrates no signs of

constitutional infirmity.

First, the statutes and rules at issue do not show an intent to control speech. The Supreme

Court has held that the First Amendment does not prohibit laws justified by a valid governmental

interest when those laws do not reflect an intent to control the content of speech but rather

incidentally limit unfettered exercise of the right. See Konigsberg v. State Bar of Cal., 366 U.S. 36,

50 (1961). As the magistrate judge correctly recognized, the licensing scheme does “not directly

regulate expressive activity. Rather on its face, [it] addresses conduct, character, and the propensity

to serve the public honestly.” JA 317. The licensing provisions here are content neutral and impose

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no prior restraints. The rules, even if they incidentally limit unfettered exercise of the right to speak

freely, thus are not intended to regulate the content of bar applicants’ speech.

Second, Michigan’s desire to have morally fit lawyers is reasonable and expected. The

Supreme Court of the United States has recognized the states’ interests in evaluating the fitness of

applicants for membership to state bars. See Konigsberg, 366 U.S. at 52. Moreover, the Supreme

Court has also stated that the “generalized due process right to choose one’s field of private

employment . . . is nevertheless subject to reasonable government regulation.” Conn v. Gabbert, 526

U.S. 286, 292 (1999). Michigan’s desire to ensure that officers of the court be of sound moral fiber

is both laudable and expected, and its belief that criminal convictions might reflect upon the

character of the applicant, furthermore, is logical. It is understandable that an informed decision on

the character and fitness of an applicant cannot be rendered with any degree of certainty during the

pendency of criminal charges. Therefore, a rule mandating that a final decision on an applicant’s

request for bar admission be stayed until criminal proceedings have concluded is reasonable and

does not, in any way, unreasonably implicate an applicant’s right to free speech.

The defendants also do not have “unbridled discretion” in deciding whether to admit or to

reject bar applicants because the Michigan statute provides sufficient guidance to determine which

applicants have “good moral character.” In Law Students Civil Rights Research Council, Inc. v.

Wadmond, 401 U.S. 154, 159 (1971), the Supreme Court upheld against a similar challenge the

vaguer New York bar admission standard requiring applicants to demonstrate possession of “the

character and general fitness requisite for an attorney and counsellor-at-law [sic].” In doing so, the

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Court noted that its own rule at the time provided that the applicants show only that their “private

and professional characters . . . appear to be good.” Id. at 160.4 Michigan’s statute provides more

guidance regarding who qualifies as having “good moral character” than either the New York or

Supreme Court rule. The defendants’ discretion is reined in because they must consider the ability

of an applicant to serve the public in a fair, honest, and open manner. Mich. Comp. Laws §

338.41(1). Thus, Lawrence’s argument that the defendants have too much discretion fails.

Lawrence’s final facial challenge to the bar admission rules—that the Michigan procedure

does not provide for sufficient review of any adverse determination—is patently without merit. The

magistrate judge painstakingly described the ample protections available to a rejected applicant:

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 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. In
support of his argument, plaintiff points to the practice of the Michigan Supreme
Court to decide mandamus petitions in attorney admission matters, whether
favorably or unfavorably, in short, per curiam orders. The fact that the court finds

4
The current version of Rule 5(1) of the Rules of the Supreme Court of the United States
requires that an applicant “must appear to the Court to be of good moral and professional character.”

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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.

JA 318 (some citations omitted). Finally, to the extent that any federal right is allegedly violated,

Lawrence, after exhausting his state-court remedies, may petition the Supreme Court of the United

States for a writ of certiorari. See 28 U.S.C. § 1257. The many opportunities for review under the

Michigan licensing system amply support the facial constitutionality of the system.

4. As-Applied Challenges to Bar Rules

Lawrence’s as-applied challenge to the Michigan attorney-admission procedures fails

because this claim was not ripe for adjudication at the time that the district court entered judgment.5

The ripeness doctrine “is drawn both from Article III limitations on judicial power and from

prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509 U.S.

43, 57 n.18 (1993). The doctrine of ripeness is meant to “avoid[] . . . premature adjudication.”

5
A few days before oral argument in this court, Lawrence submitted a letter to this court,
attached to which were what he deemed “supplemental authorities.” These attachments purportedly
demonstrate that Lawrence has been denied admission to the Michigan bar. See 1/26/06 Letter from
Lawrence, attach. #2. Federal Rule of Appellate Procedure 28(j) “permits a party to bring new
authorities to the attention of the court; it is not designed to bring new evidence through the back
door.” Trans-Sterling, Inc. v. Bible, 804 F.2d 525, 528 (9th Cir. 1986). We do not consider these
attachments because they are not supplemental authorities at all; instead, they are evidence of what
has transpired in Lawrence’s application process.
Although the district court did not expressly say so, the dismissal of Lawrence’s as-applied
challenges are without prejudice. See Peters v. Fair, 427 F.3d 1035, 1038 (6th Cir. 2005).
Therefore, if and when Lawrence’s claim is ripe (and in all ways suitable for judicial review), he
may reassert this claim. See id.

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Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). To avoid premature adjudication, we

“require[] that the ‘injury in fact be certainly impending.’” Deja Vu of Nashville, Inc. v. Metro.

Gov’t of Nashville & Davidson County, 274 F.3d 377, 399 (6th Cir. 2001) (citation omitted). At the

time of the district court’s decision, the plaintiff had not been denied admission to the bar. He had

withdrawn one application, and the defendants had not acted upon his second application. No injury

thus had occurred or was “certainly impending.”

To circumvent this conclusion, Lawrence contends that the very act of holding his

application without rendering a decision violated his First Amendment rights and thus constituted

injury. But, as we have previously stated, “The claim may . . . be unripe if the issues are not fit for

judicial review, perhaps because future events may greatly affect the outcome of the litigation and

the cost of waiting is not particularly severe.” Airline Prof’s Ass’n of the Int’l Bhd. of Teamsters,

Local Union No. 1224 v. Airborne, Inc., 332 F.3d 983, 988 (6th Cir. 2003). The mere delay of his

application is not sufficient to make this controversy ripe. First, future admission or denial could

have a great effect on this litigation and require supplementing the record. Second, the cost of

having his application delayed is not very severe when compared to Michigan’s interest in having

moral members of its bar. As previously noted in this opinion, the Michigan Bar has a reasonable

interest in determining the moral fitness of its applicants, and delaying action on an application

during the pendency of a criminal action is logical and expected. The district court properly

dismissed the as-applied claims against defendants Chabot and Berry on ripeness grounds.

5. Set Aside of Entry of Default

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The district court did not abuse its discretion in setting aside the entry of default against Van

Aken and Armbrustmacher. We review a decision to set aside an entry of default under Rule 55(c)

for an abuse of discretion. See O.J. Distrib., Inc. v. Hornell Brewing Co., 340 F.3d 345, 352 (6th

Cir. 2003). This court will find an abuse of discretion only when it comes to “a definite and firm

conviction that the trial court committed a clear error in judgment.” Bowling v. Pfizer, Inc., 102 F.3d

777, 780 (6th Cir. 1996). There was no clear error of judgment in this case.

Under Rule 55(c), a court may set aside an entry of default “[f]or good cause shown.”

Although a district court has “considerable latitude” under the Rule 55(c) standard, the court, in

determining whether a defendant has demonstrated good cause, should examine whether “(1) the

default was willful, (2) set-aside would prejudice plaintiff, and (3) the alleged defense was

meritorious.” United Coin Meter Co. v. Seaboard Coastline R.R., 705 F.2d 839, 844 (6th Cir. 1983)

(citations omitted). Both the magistrate judge and the district judge dutifully considered the required

factors in this case and concluded that a set-aside of the entry of default was justified so as to allow

this dispute to be decided on the merits. Specifically, the district court found “that the defendants

did not intend to thwart the judicial proceedings or display a reckless disregard for the effect of their

conduct on the judicial proceedings.” JA 767. The district court further determined that the

defendants raised the meritorious defense of qualified immunity, which the district court later

concluded could serve as an alternative basis for dismissing all claims against Van Aken and

Armbrustmacher. Finally, the district judge could envision no prejudice to the plaintiff from setting

aside the default given the fact that the defendants filed their motion to set aside entry of default,

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along with a proposed answer to the complaint, only sixteen days after the answer was due. JA 767.

Under these circumstances, the district court did not abuse its discretion in determining that the

defendants alleged sufficient facts to justify setting aside the entry of default.

6. Refusal to Strike Affirmative Defenses

The magistrate judge did not abuse his discretion in refusing to strike the defendants’

affirmative defenses. “An affirmative defense may be pleaded in general terms and will be held to

be sufficient . . . as long as it gives plaintiff fair notice of the nature of the defense.” 5 Wright &

Miller, Federal Practice and Procedure § 1274. In Davis v. Sun Oil Co., 148 F.3d 606, 612 (6th

Cir. 1998), the defendant simply stated as follows in its answer: “Plaintiffs’ claims are barred by

the doctrine of res judicata.” We held that the pleading was sufficient because it gave the plaintiff

notice of the defense. See id. Lawrence challenges the defendants’ pleading of qualified immunity

in this case: “For the federal claims, defendants are entitled to qualified immunity for all activities

complained of in this complaint.” JA 624. The plaintiff does not contend that he was not given

sufficient notice of the defenses or of their legal bases, or that the defendants’ pleading in this case

is any more general that the pleading in Davis. Instead, Lawrence simply argues that the affirmative

defense pleadings were defective simply because they were “bare one-liners.” Because the

applicable test does not require the district court to count the lines of text that an invoked defense

uses and because the defendant’s pleading gave Lawrence notice of the defense, the district court

did not err in permitting the defendants to assert their affirmative defenses in their answer.

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7. Assessment of Costs Against Plaintiff

Lawrence’s final argument—that the district court abused its discretion in assessing

$1,953.60 in costs against him—is without merit. Lawrence recognizes that Federal Rule of Civil

Procedure 54(d)(1) specifically provides, in relevant part, that “[e]xcept when express provision

therefor is made either in a statute of the United States or in these rules, costs other than attorneys’

fees shall be allowed as of course to the prevailing party unless the court otherwise directs. . . .”

Lawrence notes, however, that despite the presumption in favor of awarding costs to the prevailing

party, the rule permits “denial of costs at the discretion of the trial court.” White & White, Inc. v.

Am. Hosp. Supply Corp., 786 F.2d 728, 730 (6th Cir. 1986). He submits that such a denial of costs

is appropriate in this case because (1) he sought to reinstate his application for admission to the bar

but the defendants still refused to act upon it, (2) Van Aken and Armbrustmacher refused to utilize

the cheaper electronic filing option, and (3) the defendants chose not to assert an immunity defense

at the earliest possible time. None of these proffered reasons, however, justifies denying costs to

the defendants in this litigation.

First, the fact that Lawrence eventually reapplied for bar admission has no bearing on

whether he is responsible for costs in litigation concerning his first application. The two issues

simply are not related. Moreover, the defendants had no duty to act immediately on that new

application. The defendants may reasonably have needed time to evaluate his latest application and

consider all of the evidence concerning Lawrence’s moral fitness. After all, a final, or even

preliminary, decision was never made on his first application.

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Second, Lawrence’s claim that the defendants should have used the electronic filing

capabilities of the district court to reduce copying costs is spurious. The plaintiff himself admits in

his brief that “he was ineligible to use the ECF system.” Lawrence’s Br. at 60. Consequently, the

defendants were required to provide him with paper copies of all court filings, thus eliminating any

savings that Lawrence believes the electronic filing would have engendered. The mere fact that the

defendants also chose to provide paper copies to the court was simply a cost of litigation and a

choice that was not unreasonable.

Finally, the district judge did not abuse his discretion in assessing costs against the plaintiff

even though some defendants failed to assert an immunity defense in a pre-answer motion to

dismiss. As the court correctly stated in its memorandum opinion discussing the cost issue:

If plaintiff believed that his claims were barred by immunity, he obviously
could have refrained from filing this lawsuit. Plaintiff never sought to voluntarily
dismiss any of his claims. Plaintiff consistently pursued an aggressive litigation
strategy over the two-year life span of this lawsuit (see, e.g., docket #'s 84, 93, 94,
104, 106, 111, 125, 185, 189, 190, 213, 214, 227, 234), which resulted in defendants
incurring the very costs to which plaintiff now vigorously objects. Plaintiff must live
with the consequences of his actions.

JA 1254. That Lawrence has learned, at his own expense, that litigation costs money does not mean

that the district court abused its discretion in awarding costs to the defendants.

III.

For the foregoing reasons, we AFFIRM.

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DAVID A. NELSON, Circuit Judge, concurring. I agree with this court’s ultimate

disposition of the appeal, but I am uncertain as to whether 28 U.S.C. § 455(b)(4) required the

magistrate and district judges to disqualify themselves. If disqualification was required, however,

I am satisfied that remedial action on our part is neither necessary nor appropriate.

It seems to me that the membership of the two judges in the State Bar of Michigan’s

Standing Committee on United States Courts might, depending on the nature and extent of the

judges’ involvement with the committee, constitute “a relationship as . . . adviser[] or other active

participant in the affairs of a party . . . .” 28 U.S.C. § 455(d)(4). Such a relationship, if it existed,

would by definition constitute a “financial interest” in the party, and in my view it would be

disqualifying, under the plain language of the statute, irrespective of whether the party was a

nonprofit organization.

It is true that in Plechner v. Widener College, Inc., 569 F.2d 1250, 1262 n.6 (3d Cir. 1977),

the Third Circuit distinguished between business corporations and nonprofit organizations such as

the American Bar Association in suggesting that an interest in the bar association would be

disqualifying only if a need for disqualification were indicated under the “substantial effect test.”

The specific interest discussed by the Third Circuit in this connection, however, was a hypothetical

interest of the trial judge in avoiding personal exposure, as an ABA member, to liability for a share

of any damages that might be awarded against the bar association. Nowhere in the Plechner

opinion is there any reference at all to the kind of relational interest that concerns us here — the

interest that arises from “a relationship as adviser[] or other active participant in the affairs of a party

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Nos. 05-1082, 05-1397
Lawrence v. Chabot

. . . .”

I should add that I do not think that § 455 would prevent all federal judges from hearing

cases involving bar associations of which they are members. Mere membership in a bar association

does not constitute “active participa[tion]” in the association’s affairs. Cf. Parrish v. Board of

Comm’rs of Ala. State Bar, 524 F.2d 98, 104 (5th Cir. 1975) (en banc) (“No interest exceeding mere

membership is asserted. This is not a ground for disqualification.”), cert. denied, 425 U.S. 944

(1976). And even a judge who sits on a bar committee might not in all circumstances have a

“financial interest” within the meaning of the statute. Not all committee members are “adviser[s],”

and not all participation is “active.”

If the magistrate and district judges in this case were, in fact, “adviser[s] or . . . active

participant[s] in the affairs” of the state bar, and were required on that basis to disqualify themselves,

it does not necessarily follow that the judgment appealed from must be vacated. As the Supreme

Court has observed, § 455 “neither prescribes nor prohibits any particular remedy for a violation”

of the duty to disqualify. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 862 (1988).

Under Liljeberg, a “harmless error” analysis applies to violations of § 455. See id.; Harris v.

Champion, 15 F.3d 1538, 1571-72 (10th Cir. 1994). A judgment should be vacated only if allowing

the judgment to stand would be unjust or would undermine the public’s confidence in the judicial

process. See Liljeberg, 486 U.S. at 864.

In the case now before us, I am satisfied that any violation of the statute was harmless. Mr.

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Lawrence has not shown that the membership of the magistrate and district judge in the state bar

committee on the federal courts was likely to influence their handling of a lawsuit concerning an

entirely distinct matter — Lawrence’s admission to the bar. I do not think any rational observer

would conclude that bias caused the two judges to rule as they did. (Indeed, this court has reviewed

the district court’s decisions and found its legal rulings to be correct and its discretionary rulings to

be reasonable.) Vacating the district court’s judgment in these circumstances would neither remedy

an injustice nor prevent a loss of public confidence in the judicial process.

Accordingly, I would affirm the denial of the motion to disqualify on the ground that any

error was harmless. In all other respects I join the majority opinion.

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