Lawrence v. Welch

SUTTON, Circuit Judge,

concurring.

I wholeheartedly concur in Judge Bertelsman’s opinion with respect to his resolution of Lawrence’s first and third claims. I write separately to explain my preference for resolving Lawrence’s second claim, which seeks to enjoin the Board from denying a second Bar application that Lawrence has yet to file. As to that claim, we ought to affirm the dismissal of the claim on ripeness, not Rooker-Feldman, grounds because (1) it is not “fit[ ] ... for judicial decision” and (2) “the hardship to the parties of withholding court consideration” is minimal. Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).

Is the claim fit for judicial review? No, for several reasons. At this juncture, we do not know whether Lawrence will file another Bar application. If he does file a second application, we do not know what he will say in completing the application, how he will respond to questioning in the character and fitness hearing and whether the Board will grant or deny him admission. And if the Board opts to deny the second application, we do not know why it will do so. See Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 163, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). In the absence of concrete facts regarding the Board’s affirmative or negative assessment of Lawrence’s potential application, any resolution of Lawrence’s claim—indeed even the assumption asLawrence will be injured— is necessarily premature. See Nat’l Park Hospitality Ass’n v. Ass’n of Interior, 538 U.S. 803, 807, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003).

Nor has Lawrence shown that he will suffer hardship if he must wait until he files, and the Board rejects, a second application before he seeks to vindicate his First Amendment rights. In the interim, the State has not put his feet to the fire— forcing him to take immediate action or else face the risk of civil or criminal penalties. See Abbott Labs., 387 U.S. at 153, 87 S.Ct. 1507 (finding hardship “where a regulation requires an immediate and significant change in the plaintiffs’ conduct of their affairs with serious [criminal and civil] penalties attached to non-compliance”); compare id., with Toilet Goods, 387 U.S. at 164-65, 87 S.Ct. 1520. The only hardship he identifies is the likelihood that, if the Board denies his second application, he will be forced to litigate his claim initially in the Michigan state courts, which, he says, “fail[ ] adequately to protect individu*374als’ constitutional rights.” Compl. ¶ 24. That, however, is not the type of immediate hardship that makes a claim justiciable, and indeed he cites no case law saying that it is. Even if he must file a second claim in the state courts, that does not mean he must end his challenge there, as the United States Supreme Court has certiorari jurisdiction over federal questions resolved by the state courts. See 28 U.S.C. § 1257(a). In the end, while “[t]he ripeness doctrine” may “dovetail neatly” with other doctrines (like Rooker-Feldman) that limit lower-federal-court review of state court decisions, that reality by itself gives us no warrant to sidestep the traditional ripeness requirements for bringing a claim in federal court. Reno v. Catholic Soc. Servs., 509 U.S. 43, 60, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993).

The ripeness doctrine, it is true, “is somewhat relaxed in the First Amendment context,” Norton v. Ashcroft, 298 F.3d 547, 554 (6th Cir.2002), but even that does not help Lawrence. To prevail, Lawrence must show not only that the Board will deny him admission to the Bar but also that it will do so based on speech protected by the First Amendment. Because we do not know what action the Board will take on a potential second application—much less the reasons it will give for that action—we have no basis for applying a relaxed ripeness standard here. See id. at 554-55 (holding that, even under the “somewhat relaxed” ripeness standard of the First Amendment, a claim is not ripe for review where the plaintiffs could not show a credible fear of enforcement, where the factual record was insufficient to permit review and where withholding judicial relief would not cause undue hardship); see also, e.g., Marchi v. Bd. of Coop. Educ. Servs., 173 F.3d 469, 478-79 (2d Cir.1999) (holding that, even under the relaxed ripeness standard of the First Amendment, claims were not ripe for review where the claims were “all highly fact-specific and, as of yet, hypothetical” and where the plaintiff could not plaina credible fear of enforcement); Pearson v. Leavitt, 189 Fed.Appx. 161, 163 (4th Cir. June 23, 2006) (holding that, even under the “relaxed” ripeness standard of the First Amendment, “[i]f certain Amendfacts that would substantially assist the court in making its determination are contingent or unknown, the case is not ripe for judicial review”).