PLAINTIFFS= BRIEF ON ABSTENTION

Civil Action No. 99-M-967 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO JANE DOE; JOHN ROE #1; JOHN ROE #2; and THE RALPH TIMOTHY POTTER CHAPTER OF THE AMERICAN CIVIL LIBERTIES UNION at THE UNIVERSITY OF DENVER COLLEGE OF LAW, v. Plaintiffs, THE COLORADO SUPREME COURT; THE COLORADO STATE BOARD OF LAW EXAMINERS; and ALAN OGDEN, EXECUTIVE DIRECTOR OF THE COLORADO STATE BOARD OF LAW EXAMINERS, in his official capacity, Defendants. PLAINTIFFS= BRIEF ON ABSTENTION Plaintiffs Jane Doe, John Roe #1, John Roe #2, and the Ralph Timothy Potter Chapter of the American Civil Liberties Union submit their brief on abstention. INTRODUCTION AAbstention from the exercise of federal jurisdiction is the exception, not the rule. >The doctrine of abstention... is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.=@ Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976) (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S 185, 188-89 (1959)). This Court unquestionably has jurisdiction over plaintiffs= general, facial challenge to three mandatory questions on the Colorado bar application. The issue presented is, should this Court

should nevertheless abstain from deciding whether the challenged questions violate federal law? The answer is no. As demonstrated below, none of the abstention doctrines apply here. Therefore, the Court should proceed undeterred to address the issues raised by the parties in their pending motions. PROCEDURAL BACKGROUND At the Hearing on Pending Motions (December 30, 1999), the Court noted that the Colorado Supreme Court promulgates the rules governing admission to the bar, controls the admissions process, and decides who is admitted to the bar. The Court further noted that the Colorado Supreme Court has the authority to decide whether the bar application questions at issue violate the United States Constitution and the ADA. The Court indicated that it was thus inclined to abstain in order to permit the Colorado Supreme Court to rule on the validity of the questions at issue, and it ordered the parties to submit briefs on the issue of abstention. See Exhibit 1, Transcript of Dec. 30, 1999 Hearing, at 3-5. The Court then had the following colloquy with defense counsel: THE COURT: [I]sn=t this a matter that could be within the original jurisdiction of the [Colorado Supreme] court, and any applicant can seek either a waiver or an interpretation directly with the court? MS. ERET: Absolutely, your honor. Exhibit 1, p. 6, ll. 20-24. Following the hearing, and in light of this Court=s suggestion that the Colorado Supreme Court may have original jurisdiction over their claims, plaintiffs proposed that the parties file a joint motion to stay this action while plaintiffs file an original proceeding in the Colorado Supreme Court. See Exhibit 2, Letter from Masciocchi to Knaizer (Feb. 2, 2000). Plaintiffs proposed to raise the same claims before the Colorado Supreme Court that they have raised in the instant action. See id.

Defendants rejected this proposal. Defendants took the position that the only way plaintiffs could proceed before the Colorado Supreme Court would be to contest the denial of an individual application for admission to the bar. See Exhibit 3, Letter from Knaizer to Masciocchi (Feb. 17, 2000) (AThe Court will not deviate from the procedures that are available to all bar applicants.@). 1 PLAINTIFFS= CLAIMS Plaintiffs allege that they are harmed by being required to answer three questions on the Colorado Bar Application that invade their privacy and discriminate on the basis of disability. They allege that the mere presence of the questions on the application discriminates by imposing additional burdens on disabled persons. See Amended Complaint && 1-3, 17-31, 39-53; Amended Motion for Preliminary Injunction, pp. 11-29. Significantly, plaintiffs assert that these harms are inflicted simply by virtue of asking the questions and requiring applicants to answer them, and that this harm exists prior to and independent of any harm imposed by denying a particular applicant admission to the bar. Thus, plaintiffs seek a declaration of rights and an injunction which prohibits defendants from requiring bar applicants to answer the contested questions. ARGUMENT I. THIS COURT HAS JURISDICTION OVER PLAINTIFFS= GENERAL, FACIAL CHALLENGE TO THE BAR APPLICATION QUESTIONS. Under District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), and its progeny, this Court has jurisdiction over the type of claims that the plaintiffs have asserted in this 1 Defendants then suggested that a stay would still be appropriate because the United States Supreme Court had granted certiorari in two cases presenting the question whether the ADA validly abrogated states= Eleventh Amendment immunity. See Exhibit 3. Plaintiffs declined this offer because both cases had settled and had been dismissed; moreover, both cases addressed the validity of Title I of the ADA, not Title II, and neither case had any bearing whatsoever on plaintiffs= right of privacy claims. See Exhibit 4, Letter from Masciocchi to Knaizer (March 6, 2000).

case. The Feldman Court established that a bar applicant can sue a state supreme court in federal district court if the suit presents a general challenge to state bar admission rules. See id. at 482-83, 486. As Judge Kane put it: In essence, there are two types of claims that a frustrated bar applicant might bring in federal court: (1) a constitutional challenge to a state=s general rules and procedures governing admission to that state=s bar; or (2) a claim, based on constitutional or other grounds, that a state court=s judicial decision in a particular case has resulted in the unlawful denial of admission to a particular bar applicant. Federal district courts have jurisdiction over the first type of claim, but not the second. Bronstein v. Supreme Court of Colorado, 981 F. Supp. 1361, 1363 (D. Colo. 1997) (Kane, J.) (citations omitted). In the present case, plaintiffs raise the first type of challengeca general challenge to the validity of state bar rules. When presented with facial challenges to rules governing admission to a state bar, federal courts properly exercise jurisdiction. See, e.g., Razatos v. Colorado Supreme Ct., 746 F.2d 1429, 1432 (10 th Cir. 1984) (federal district court had jurisdiction to review general challenge to disciplinary procedures), cert. denied, 471 U.S. 1016 (1985); Ellen S. v. Florida Bd. of Bar Examiners, 859 F. Supp. 1489, 1495 (S.D. Fla. 1995) (federal district court had jurisdiction over general ADA challenge to bar application questions about mental health treatment history); Clark v. Virginia Bd. of Bar Examiners, 861 F. Supp. 512, 518-19 (E.D. Va. 1994) (bar applicant claimed that question about mental health treatment violated the ADA; district court held on reconsideration that while it lacked jurisdiction over plaintiff=s claim for bar examiners to grant her a license, it had jurisdiction over her general challenge to the validity of the question). In the instant case, plaintiffs allege that defendants have violated the United States Constitution and the ADA by promulgating an invalid ruleca rule that requires Colorado bar applicants to answer the three challenged questions about their history of treatment for mental illness and/or substance addiction. None of the plaintiffs have been denied admission to the bar,

and consequently, they do not challenge a judicial determination of their individual application. Under these circumstances, it is clear that this Court has subject matter jurisdiction over their general challenges to the questions at issue. Finally, by declining to hear plaintiffs= general challenge to these questions (see Exhibit 3), and by arguing that plaintiffs= claims are not ripe, see Motion to Dismiss, the Colorado Supreme Court has taken the position that plaintiffs suffer no cognizable harm prior to being denied a license. Thus, it is particularly appropriate for this Court to exercise jurisdiction over plaintiffs= general challenge, in which they allege that they are harmed prior to and independent of the denial of a bar application.

II. THE COURT MUST NOT ABSTAIN, BECAUSE NONE OF THE FACTORS THAT COUNSEL FOR ABSTENTION ARE PRESENT HERE. As noted above, abstention is the exception, not the rule. See Colorado River, 424 U.S. at 813; Examining Bd. of Eng=rs v. Otero, 426 U.S. 572, 598 (1976). Moreover, federal district courts routinely exercise jurisdiction over general, facial challenges to bar admission rules, see supra at 4-5 (citing cases), and they generally do not abstain from deciding such general challenges. See, e.g., Centifanti v. Nix, 661 F. Supp 993, 994 (E.D. Pa. 1987) (in context of constitutional challenge to state bar rules, court held that where there is no judicial proceeding pending, principles of federalism Anot only do not preclude federal intervention, they compel it@) (quoting Steffel v. Thompson, 415 U.S. 452, 472-73 (1974)); Ktsanes v. Underwood, 467 F. Supp. 1002, 1005-07 (N.D. Ill. 1979) (in context of constitutional challenge to state bar rules, court rejected all forms of abstention where there was no ambiguous state statute to be interpreted, no pending state court proceeding, and no difficult question of state law); Shapiro v. Cooke, 552 F. Supp. 581, 584-85 (N.D.N.Y. 1982) (same). Likewise, none of the factors that counsel for abstention exist here. There is no unsettled question of state law that could obviate plaintiffs= federal claims, no complex statutory scheme based primarily on local factors, no pending state court proceeding, and no other reason for this Court to abstain. To the contrary, the fact that the Colorado Supreme Court has declined to hear plaintiffs= general, facial challenge indicates that review in the state court will not be adequate. Because plaintiffs allege that they are harmed prior to and independent of the denial of admission to the bar, a ruling that forces plaintiffs to defer their claims until after the denial of their applications would effectively deny them a remedy for these harms. For these reasons, this Court must not abstain from exercising its jurisdiction to hear plaintiffs= claims. Although several of the following abstention doctrines do not even arguably apply here, plaintiffs discuss all forms of abstention for the sake of completeness.

A. Pullman Abstention Does Not Apply, Because There Is No Intervening, Unsettled Issue of State Law That Would Obviate The Need To Decide Plaintiffs= Claims Under The ADA And The Constitution. The Amost common formulation@ of the type of abstention recognized in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941), Ais that abstention is required only if the state law is fairly susceptible to an interpretation that would avoid the need for constitutional adjudication.@ CHARLES A. WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE _ 4242, at 42-43 (2d ed. 1988); see also Harman v. Forssenius, 380 U.S. 528, 534-35 (1965) (if state law is not subject to interpretation that would affect federal question, Ait is the duty of the federal court to exercise its properly invoked jurisdiction@); Kimball v. Florida Bar, 537 F.2d 1305, 1306 (5 th Cir. 1976) (rule governing disbarment was not subject to interpretation that would render unnecessary or substantially modify the federal question; therefore, abstention was improper). APullman-type abstention requires that there be >an unsettled question of state law,=@ and therefore Ais not indicated if the state law is clear on its face,... or if the constitutional issue would not be avoided or changed no matter how the statute is construed.@ WRIGHT, MILLER, & COOPER _ 4242, at 35, 38-41. Thus, abstention is not required where the federal court faces Athe naked question, uncomplicated by an unresolved state law,... whether [the contested state law] on its face is unconstitutional.@ Wisconsin v. Constantineau, 400 U.S. 433, 439 (1971); see also Razatos, 746 F.2d at 1434 (federal district court erred in finding it did not have jurisdiction where it was only required to review state rule as promulgated). In this case, plaintiffs seek a facial review of the contested questions. There is no intervening, unsettled issue of state law that would obviate the need for constitutional adjudication. There is no legal basis for resolving plaintiffs= claims other than by a review of the challenged

questions under the ADA and the Constitution. The challenged questions require applicants to answer questions and provide information about mental health and addiction treatment. There is no possible interpretation of this requirement that could eliminate or modify plaintiffs= constitutional and statutory challenge, and therefore, there is no basis for Pullman abstention. B. Neither Burford Abstention Nor Thibodaux Abstention Applies, Because Plaintiffs= Challenge Does Not Implicate Primarily Local Factors Or An Interpretation Of An Ambiguous State Law. In Burford v. Sun Oil Co., 319 U.S. 315, 316-17 (1943), the plaintiff sought to enjoin a Texas state commission=s permit to drill oil wells based on both state law and due process grounds. The Burford Court noted that oil and gas regulation was a complex and Athorny@ area of state law that reflected local concerns, see. id. at 318, and it determined that a federal district court should abstain in such a case. Hence, Burford abstention can be summarized as follows: AIf there is adequate state court review of a complex state regulatory scheme based primarily on local factors, federal courts ought not seek to fashion the domestic policy of a state towards its administrative agencies.@ RONALD E. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW ' 2:15(e), at 299 (3d ed. 1999). In a similar vein, in Louisiana Power & Light Co. v. Thibodaux, 360 U.S. 25, 28-29 (1959), the Court held that federal courts should abstain where an issue (e.g., eminent domain procedures) is special and peculiar to the state and Aintimately involved with sovereign prerogative,@ and resolving the claim would require the federal court to make Aa dubious and tentative forecast@ of state law. Cf. County of Allegheny, 360 U.S. at 190 (affirming district court=s decision not to abstain where statute governing eminent domain issue was not ambiguous). Thibodaux abstention Ais appropriate where there has been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result of the case then at bar.@ Colorado River, 424 U.S. at 814.

Here, Burford abstention clearly does not apply. Plaintiffs are not challenging a determination subject to a complex regulatory system; they are making a facial challenge to questions that are part of a regulatory system. Additionally, because plaintiffs are asserting a facial challenge that raises only issues of federal law, consideration of Alocal factors@ does not come into play. There is also a fundamental difference between the type of relief sought by the plaintiff in Burford (an injunction against issuance of a particular permit) and the type of relief sought by plaintiffs in this case (a declaration of their rights under the ADA and the Constitution). Finally, plaintiffs cannot obtain adequate review in state court. The Colorado Supreme Court has indicated that it is unwilling to review a challenge to its rules other than in the context of the denial of a license. See Exhibit 3. Because plaintiffs allege that they are harmed long before they are denied a license to practice law, such after-the-fact review would be inadequate. Thibodaux abstention does not apply for similar reasons. Resolution of plaintiffs= federal claims involves no interpretation of an ambiguous state statute or regulatory scheme. Plaintiffs instead argue that a rule, on its face, violates federal law. Thus, plaintiffs= claims do not require this Court to Aforecast@ state law. This Court has noted that state courts have an important interest in regulating admission to the bar. However, as discussed above, plaintiffs= claims are not premised on the alleged unlawfulness of a particular admission decision. Rather, plaintiffs allege that a particular form of repeated state action (asking and requiring answers to the contested questions) violates their federal constitutional and statutory rights. Plaintiffs= claims, therefore, do not implicate areas of particular state-court expertise, and the concerns underlying Burford and Thibodaux are absent here. C. Neither The Colorado River Doctrine Nor Younger Abstention Apply, Because There Is No Pending State Court Action.

Two final doctrines warrant only brief consideration. In Colorado River, 424 U.S. at 818, the Court held that in very limited situations, federal courts should dismiss a federal action to avoid duplicative litigation if there is a parallel action pending in state court. Likewise, in Younger v. Harris, 401 U.S. 37, 41 (1971), the Court held that a federal court must abstain from enjoining a pending state criminal prosecution, where the defendant claimed the law under which he was being prosecuted was unconstitutional. While Younger also prohibits federal courts from enjoining state civil enforcement proceedings, see e.g., Middlesex County Ethics Comm. v. Golden State Bar Ass=n, 457 U.S. 423, 432 (1982), the thrust of Younger remains that Aa state proceeding either has been or is about to be commenced... by the state authorities, and... the whole case should be litigated in that proceeding.@ R. ROTUNDA & J. NOWAK, supra, at 306 (quoting H. HART & H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1043 (2d ed. 1973)). In the present case there is no enforcement action pending in state court. Moreover, plaintiffs do not seek an injunction of any pending state court proceeding. Hence, neither of these doctrines apply here. Finally, as with Burford abstention, Younger abstention requires consideration of the adequacy of state court review. See Middlesex County Ethics Comm., 457 U.S. at 432. As noted above, the Colorado Supreme Court has asserted that plaintiffs= claims are not ripe and that plaintiffs may only challenge the questions at issue in the same manner as any bar applicant, i.e., in the context of the denial of a license. Thus, there can be no adequate state court review of plaintiffs= claims that they are harmed prior to and independent of the denial of a license, and indeed, that they are harmed before they ever apply for admission to the Colorado bar.

CONCLUSION This Court has jurisdiction over plaintiffs= claims, and there is no basis in fact or law for this Court to abstain from deciding those claims. The Court=s exercise of jurisdiction is all the more urgent in light of the fact that the Colorado Supreme Court declined to hear plaintiffs= general, facial claims. For these reasons, the Court should not abstain and should proceed to reach the merits of the parties= pending motions.