I was thinking of blogging on the Seventh Circuit case where the Seventh Circuit held that the ministerial exception does not apply to hostile work environment claims. As sometimes happens, another labor and employment law blogger, this time Amy Epstein Gluck of Fisher Broyles, beat me to the punch, here173172186187117117. Amy did it so well that I am not sure what I could add to her excellent blog entry except that: 1) A Circuit Court split exists. So, look for it to go to the Supremes; and 2) the 10^th Circuit case that held the ministerial exception does apply to hostile work environment claims did not have Justice Gorsuch on its panel.

 

Turning to our case of the day, Doe v. Supreme Court of Kentucky, here174173187188118118, I chose it because it is one of the best examples I have seen of calling out ableism. Ableism is the concept that people without disabilities know what is best for people with disabilities. Part of that includes people without disabilities concluding that people with disabilities can only practice their profession if they are closely monitored simply because they have disabilities. In a case decided by Judge Justin Walker, now of the District of Columbia Circuit, he made it clear that such philosophies are unacceptable. True, the plaintiff loses but that doesn’t make the philosophy any less acceptable. As usual, the blog entry is divided into categories and they are: Judge Walker tees it up; facts; court’s reasoning standing; court’s reasoning Rooker-Feldman/immunities; Judge Walker wraps it up; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories. Also, you will see various numbers in §I. Those numbers are references to footnotes in the opinion, which you can find by reading the case175174188189119119.

 

I

Judge Walker Tees It up (Taken Directly From The Opinion)

 

Courts, journalists, and scholars have extensively documented the mental health issues that afflict lawyers. 1 The problems begin in law school, where “law students have disproportionate levels of stress, anxiety, and mental health concerns compared with other populations.”2 After graduation, lawyers suffer from depression at higher rates than non-lawyers.3 Not long ago, the Kentucky Bar Association President described a spike in Kentucky lawyers dying by suicide as “disproportionate” and “disconcerting.”4 Jane Doe was a lawyer in Florida. She moved to Kentucky. She wanted to practice law here. Bureaucrats didn’t want her to. They thought her mental disability made her unfit. For over two years, they stopped her. But she didn’t give up. And they eventually relented. Then Doe sued them, alleging they had illegally asked about her mental health history and treatment, illegally forced her to turn over her medical records and her therapists’ notes from their counseling sessions, and illegally treated her like a criminal because of her disability. This case is not only about Jane Doe. It’s also about the lawyers who decide who else can be a lawyer [citations omitted]. Under the Kentucky Constitution, that power belongs to the Supreme Court of Kentucky. 5 The court, in turn, delegates that job to its Bar Bureaucracy: § The Character and Fitness Committee and Board of Bar Examiners comprise the Office of Bar Admissions.6 § The Character and Fitness Committee prohibits people from practicing law if the committee thinks they are immoral7 or unfit.8 § The Board of Bar Examiners prohibits people from practicing law if they can’t pass a timed exam that tests their ability to memorize whole areas of the law they will never again need to know anything about. 9 § The Kentucky Bar Association decides who gets to stay a lawyer.10 § The Kentucky Lawyer Assistance Program keeps tabs on lawyers and aspiring lawyers who have mental health issues by monitoring their medications, counseling, where they live, and where they travel.11 Anyone with any power in this Bar Bureaucracy is a lawyer. So, just like an oil or drug cartel, those who are already selling something get to decide who else may sell that same thing. Of course, unlike most cartels, this one is legal. In fact, the Kentucky Constitution requires it.12 If Doe had sued the Bar Bureaucracy back when it stopped her from entering the market, she would have had standing to ask the Court to block it from treating her like it did. But you can’t blame Doe for waiting to sue. If your goal is to persuade the Bar Bureaucracy’s lawyers to let you 5 Ky. Const. § 116 (“The Supreme Court shall, by rule, govern admission to the bar and discipline members of the bar.”). 6 SCR 2.000. Some of the Supreme Court Rules cited here have been recently amended due to the ongoing pandemic, but none of the recent amendments are material to this analysis. 7 SCR 2.011(1); SCR 2.040(3). 8 SCR 2.011(2); SCR 2.040(3). 9 SCR 2.020(3); SCR 2.080. 10 SCR 3.025; SCR 3.050; SCR 3.060; SCR 3.640(8)(d); SCR 3.645(4); see, e.g., Grinnell v. Kentucky Bar Association, 602 S.W.3d 784 (Ky. 2020); see also SCR 3.035(1)(c) (“Failure to maintain a current address which allows for physical service of process with the Director [of the Kentucky Bar Association] may be prosecuted in the same manner as a violation of the Rules of Professional Conduct.”). 11 SCR 3.900; SCR 3.910(2); DN 14-1 ¶¶ 40, 72. 12 Ky. Const. § 116. Case 3:19-cv-00236-JRW Document 43 Filed 08/28/20 Page 3 of 18 PageID #: 647 4 join their club, it isn’t a good strategy to poke them in the eye with a lawsuit that accuses them of violating the Americans with Disabilities Act and the United States Constitution. Because the Bar Bureaucracy (finally) allowed Doe to practice law, she lacks standing for prospective relief. And because legislative and judicial immunity protect Bar Bureaucracies from money damages arising from the promulgation of bar rules and the adjudication of bar applications, the Court will dismiss Doe’s federal claims. In addition, the Court declines to exercise supplemental jurisdiction over Doe’s state-law claims. The Bar Bureaucracy won this round against an applicant it deemed suspect and undesirable. But there will be more applicants — and more lawsuits. Some of those plaintiffs will have standing to seek prospective relief. And when they do, the Bar Bureaucracy will have to answer for a medieval approach to mental health that is as cruel as it is counterproductive.

 

II

Facts (Taken Directly from the Opinion)

 

Jane Doe was born and raised in Kentucky.17 She earned her Florida law license in 2006 and worked there in government and private practice. After a 2014 diagnosis for Bipolar I Disorder, Doe entered a monitoring program run by the Florida Lawyers’ Assistance Program. She was, and remains, in good standing with the Florida bar.18 In December 2015, Doe applied for a Kentucky law license. The application required her to disclose her history of depression and Bipolar I Disorder and that she had undergone treatment. And so began her 994-day tale of bureaucratic woe. 14 Letter from U.S. Department of Justice, Civil Rights Division, to Karen L. Richards, Executive Director, Vermont Human Rights Commission (Jan. 21, 2014) at 5 (emphasis added). 15 Letter from U.S. Department of Justice, Civil Rights Division, to the Honorable Bernette J. Johnson, Chief Justice, Louisiana Supreme Court, Elizabeth S. Schell, Executive Director, Louisiana Supreme Court Committee on Bar Admissions, Charles B. Plattsmier, Chief Disciplinary Counsel, Louisiana Attorney Disciplinary Board (Feb. 5, 2014) at 23. 16 To be clear, neither Doe nor the Department of Justice has argued that Bar Bureaucracies cannot ask about an applicant’s relevant past conduct, regardless of whether mental disability had a role in that conduct. Rather, they argue that Bar Bureaucracies cannot ask about an applicant’s status as a person with a mental disability, and they cannot treat an applicant differently based on that status. So, for example, it’s fair game to ask, “Have you ever been fired?” Or, “Have you ever robbed a bank?” Applicants’ mental health provides no escape from the questions, even if they had a mental disability when they were fired (or robbed the bank). 17 The Court takes the facts from the Amended Complaint and draws all reasonable inferences in Doe’s favor. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court also relies on the Supreme Court Rules, which are public record. Bassett v. National Collegiate Athletic Association, 528 F.3d 426, 430 (6th Cir. 2008). 18 DN 14-1 ¶ 18. Case 3:19-cv-00236-JRW Document 43 Filed 08/28/20 Page 5 of 18 PageID #: 649 6 Doe disclosed everything Kentucky’s Bar Bureaucracy required her to disclose. That included two required releases giving the Bar Bureaucracy “complete access to her personal and private medical records, including treatment notes”19 and a third for her monitoring records from Florida. In January 2016, Doe’s doctor told the Bar Bureaucracy that Doe had “compli[ed] with medical advice, prescription instructions,” and what the Florida bar required of her.20 Doe’s doctors have always said she should “continue practicing law without concerns for her or the public’s safety.”21 The Bar Bureaucracy pressed on. So Doe sent in yet another form. This fourth medical records release granted “access to inpatient records, outpatient records, and treatment notes.”22 The next month, shortly before Doe took the February 2016 bar exam, the Character and Fitness Committee refused to approve her application. Instead, in March, the Bar Bureaucracy proposed, and Doe signed, a “consent agreement” for conditional admission. 23 It required 1) a Kentucky Contract (more on that later); 2) compliance with Florida’s rules and Kentucky’s rules and reporting requirements; and 3) “residency in Kentucky . . . unless” Doe was relocating for work and the Bar Bureaucracy approved. 24

 

Doe passed the bar exam. She paid the dues and swearing-in fee.

 

Instead of the personalized contract Hourigan [Director of the Kentucky Lawyer Assistance Program], had promised, she presented a boilerplate contract. It included a host of medically unnecessary requirements, including random drug and alcohol testing. When Doe told Hourigan she had never had drug or alcohol problems, Hourigan told her the provisions were standard. Hourigan, who is not a doctor27 but plays one on the Capitol steps, also said Doe’s medications required abstinence from alcohol. (They don’t.) Doe refused to sign the contract. She told Hourigan it violated the Americans with Disabilities Act, and “the ADA does not permit the disabled to be treated like criminals.”28 (It doesn’t.) D

 

Later in 2016, after Doe provided yet another medical-records release, Doe’s doctor advised Hourigan that Doe could drink alcohol on her medication. 25 Id. ¶ 49. 26 Id. ¶¶ 50, 54. 27 SCR 3.910(2). 28 DN 14-1 ¶ 52. Case 3:19-cv-00236-JRW Document 43 Filed 08/28/20 Page 7 of 18 PageID #: 651 8 Hourigan partially relented. She removed the alcohol provisions from the Kentucky Contract. But other intrusive and unnecessary requirements remained. For example, Doe had to tell Hourigan if she was leaving town for longer than a week. Unable to practice law, Doe taught civics, safety, and sewing to refugees. Meanwhile, the Bar Bureaucracy ordered her to appear for a formal hearing, at Doe’s expense, to show cause for allegedly violating the consent agreement. The Bar Bureaucracy’s lawyer, Elizabeth Feamster, demanded even more documents, as well as the contact information for Doe’s employer.

 

Recall that on the record before us, Doe had been licensed by Florida for the past eleven years — and had practiced there for the first nine of those years — and remained in good standing that whole time.30

 

A year later, in 2018, Doe successfully completed Florida’s monitoring program. Her doctor wrote yet another letter to the Bar Bureaucracy saying he still “had no concerns regarding her mental health and encouraged her to continue practicing law.”31 29 Id. ¶ 76. 30 Id. ¶ 18. 31 Id. ¶ 92. Case 3:19-cv-00236-JRW Document 43 Filed 08/28/20 Page 8 of 18 PageID #: 652 9 In July 2018, the Bar Bureaucracy held another hearing. Again, they interrogated Doe about her disability. After the hearing, Feamster demanded still more information about Doe’s medical treatment. And yet again, Doe told the Bar Bureaucracy that they were violating the Americans with Disabilities Act. Finally, in August 2018, Doe was unconditionally admitted to practice law in Kentucky. Her bar file still contains protected health information and show cause orders suggesting that “her disability and treatment [are] character and professional flaws.”32 In 2019, Doe filed this suit against the Bar Bureaucracy for violating the Americans with Disabilities Act, the Rehabilitation Act, and the Equal Protection Clause.33 She also sued under Kentucky law for defamation and intentional infliction of emotional distress.34

 

III

Court’s Reasoning Standing

 

1. For injunctive relief plaintiff wants the bar bureaucracy to remove the show cause orders and the medical information in her records from her file. However, plaintiff has not alleged any harm that may result from the allegedly tainted file nor has she shown that any injury is certainly impending.
2. If the plaintiff avoids any disciplinary issues in Kentucky, the file may never come into play.
3. While it is conceivable that her file could be used at some point for some other purpose, any future injury is speculative or tenuous. So, plaintiff has no standing to seek injunctive relief.
4. With respect to standing for the federal claims against the office of bar admissions, the Kentucky Board of Bar Examiners, the Kentucky Bar Association, the Kentucky Lawyer Assistant Program entities, and Yvette Hourigan in her official capacities, no causal connection between plaintiff’s injuries and defendants exist. They did not block her from practicing law simply because they didn’t have the power to do so.
5. Although the character and fitness committee is a division of the office of bar admissions, the office of bar admissions doesn’t actually make any final decisions.
6. Plaintiff does have standing with respect to her federal law damages claims against the Supreme Court of Kentucky and the character and fitness committee because: 1) both had the power to and did decide to ask her about her mental health; 2) both had the power to and did deny her an unconditional license for over two years; 3) both had the power to and did impose administrative and financial burden on her that they did not impose on other applicants; 4) all these injuries are fairly traceable to the Kentucky Supreme Court and the character and fitness committee; and 5) a damages decision in plaintiff’s favor would redress these injuries.
7. Plaintiff has standing to sue both Hourigan and Feamster for defamation and intentional infliction of emotional distress.

 

IV

Court’s Reasoning Rooker-Feldman/Immunities

 

1. Feldman explicitly says that a court has subject matter jurisdiction over general challenges to State Bar rules promulgated by state courts in non-judicial proceedings that do not require review of a final state court judgment in a particular case. Here, plaintiff challenges Kentucky’s bar rules, including its licensing and bar admission system. So, Rooker-Feldman argument fails.
2. A state can waive sovereign immunity. Here, defendants raised sovereign immunity in their motion to dismiss and at oral argument, however they expressly declined to raise it as a threshold defense. So, sovereign immunity is waived.
3. The Sixth Circuit has held that the nature of the function in determining qualification for admission to the bar is a judicial act. Therefore, absolute immunity protected the Supreme Court of Kentucky and the character and fitness committee.
4. Legislative immunity says the Sixth Circuit protects the Supreme Court of Kentucky from a challenge to its promulgation of bar admission rules, including the rules requiring the character and fitness committee to interrogate applicants about their mental health. The Sixth Circuit has also applied legislative immunity to block suits challenging how a state Supreme Court and its delegates promulgate rules about who gets to become a lawyer.
5. A plaintiff can sue for a prospective relief, i.e. a declaration that questions violate federal law and an injunction prohibiting the bar bureaucracy from asking them if the plaintiff was a bar applicant and not one unconditionally licensed like the plaintiff was when she filed the suit.

 

V

Judge Walker Wraps It up (Taken Directly from the Opinion)

 

Law school is hard. The stress, rigor, and competition can lead to depression, anxiety, and substance abuse. Many students who start school healthy are far from it by the time they graduate. Some kill themselves.  Aspiring lawyer should seek the healthcare they need. But if Kentucky continues to punish people who get help, many won’t. And one day, a law student will die after choosing self-help over medical care because he worried a character and fitness committee we do that medical treatment against them-as Kentucky’s did against Jane Doe. It is not a matter of if, but when.

 

VI

Thoughts/Takeaways

 

1. I can’t recall ever seeing a federal judge call out ableism like this before. I can tell you that much the same and even more so is happening with respect to medical licensing boards and the PHP’s. True, this is a motion to dismiss and the court was obligated to take the allegations as true. However, I have seen plenty of fact patterns very similar to this in the course of my practice. Also, plaintiff loses. So, much of what he says is dicta. Even so, what he says is very powerful. Already, Law 360 reported here192120 (subscription required), that both Matthew Dietz and Disability Rights Florida filed this decision with the State of Florida as part of their successful efforts to get the Florida Supreme Court to no longer treat members with a history of drug, alcohol or psychological issues as a separate class of conditionally admitted members.
2. The Supreme Court currently has before it a petition for cert. challenging an Illinois Supreme Court decision with respect to an applicant with MH issues. One of the things mentioned in that petition is the problems the Rooker-Feldman doctrine presents. This case presents an opportunity to show how that doctrine does not apply. I wonder if the attorneys in that case representing the bar applicant won’t alert the Supreme Court to Judge Walker’s opinion.
3. If judicial and legislative immunity can somehow be circumvented, sovereign immunity would get very complicated. One wonders where practicing law would fall with respect to the equal protection tiers.
4. Judge Walker is now on the District of Columbia Circuit. It will be interesting to see how he goes about deciding §§501, 504 of the Rehabilitation Act cases. Since the ADA does not apply to the federal government but the Rehabilitation Act does, he is probably more likely to decide Rehabilitation Act cases than ADA cases while he is on the DC circuit.
5. The efforts of Matthew Dietz and Disability Rights Florida before the Florida bar also resulted in a new rule saying that all costs associated with monitoring unless otherwise required by law are to be paid by a member who was admitted pursuant to a consent agreement. The “unless otherwise required by law,” language is new. What it allows for is the waving of making the applicant pay the costs associated with monitoring. Such a waiver makes sense because without such a waiver an argument exist that you are making the applicant with a disability pay for their own reasonable modifications/accommodations, which is not something that can be done. See this blog entry176175189190120121 for example.
6. At Judge Walker notes, several federal and state courts have held that the ADA prohibits the bar bureaucracy from unnecessarily interrogating applicants about their mental health.
7. The DOJ has also brought the hammer down on the State Bar of Louisiana, as we discussed here177176190191121122, for their practices with respect to applicants with mental health conditions. According to the DOJ, asking applicants about their mental health status makes aspiring lawyers less fit to practice law because they likely deter applicant from seeking counseling and treatment for mental health concerns.
8. With respect to sovereign immunity needing to be raised as a threshold defense, check your jurisdiction on that as there are many cases saying sovereign immunity can be raised at any time.
9. Definitely look for plaintiff lawyers and disability rights activists to spread judge Walker’s decision far and wide. What happened in Kentucky is not unusual at all for either bar applicant’s or for medical professional thrown into the PHP system by medical licensing boards.