BROOKS-ALBRECHTSEN v. INDIVIDUAL MEMBERS OF THE INDIANA SUPREME COURT

Filing 63

ORDER denying without prejudice Plaintiff's 62 Motion to Stay Younger Abstention Ruling for lack of subject matter jurisdiction all of the Plaintiff's claims in the Third Amended Complaint, except for his claim regarding the consti tutionality of Admission and Discipline Rule 2.1, as to which judgment will be entered as a matter of law in favor of the Defendants. DENIES the Plaintiff's motion for reconsideration Dkt. No. 39 (Copy to Plaintiff via U.S. Mail) Signed by Judge William T. Lawrence on 11/17/2017. (JDC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARK A. BROOKS-ALBRECHTSEN, )
)
Plaintiff,
)
)
vs.
) Cause No. 1:16-cv-391-WTL-TAB
)
STATE OF INDIANA ex rel.
)
INDIANA SUPREME COURT, et al.,
)
)
Defendants.
)
SECOND ENTRY ON VARIOUS MOTIONS
Pursuant to this Court’s Order, the Court held a hearing on October 26, 2017, to aid in
determining whether to grant the Plaintiff’s motion for reconsideration. Specifically, the Court
sought to hear evidence on whether the bad faith exception to the Younger abstention doctrine
applies to the Plaintiff’s claims relating to his bar admission application.
I.

BACKGROUND

The Court recounts below the background information included in its September 21,
2017, Entry on Various Motions (Dkt. No. 55):
On his second application to sit for the Indiana bar examination, the Indiana
Board of Law Examiners determined that the Plaintiff was ineligible to sit for the
examination. It also prohibited him from reapplying for bar admission until
February 2018. The Plaintiff filed a petition with the Indiana Supreme Court
seeking review of the Board of Law Examiner’s determination, which that court
determined was premature. On February 18, 2016, the Plaintiff filed suit in this
Court. The Defendants filed a motion to dismiss the Plaintiff’s first amended
complaint (Dkt. No. 15). Following that motion, the Plaintiff filed a motion for

leave to file a second amended complaint (Dkt. No. 23). The Court granted the
Plaintiff’s motion for leave to file a second amended complaint (Dkt. No. 36), and
reviewed that complaint to determine whether it had jurisdiction. In its entry
regarding jurisdiction (Dkt. No. 38), the Court dismissed for lack of subject matter
jurisdiction all of the Plaintiff’s claims other than the Plaintiff’s claims regarding
the constitutionality of the Indiana bar examination and of Indiana Admission and
Discipline Rule 2.1, concluding that, pursuant to Younger v. Harris, it should
abstain from interfering in the ongoing state proceeding regarding the Plaintiff’s
application to sit for the Indiana bar examination.

It further dismissed all

defendants other than the State. The Plaintiff first raised his bar examination
claims in his second amended complaint and amended his claim regarding
Admission and Discipline Rule 2.1 in that complaint.

Because the Court

simultaneously granted the Plaintiff leave to file his second amended complaint
(Dkt. No. 36) and filed its entry regarding jurisdiction, the Defendants had not yet
responded to the second amended complaint’s allegations regarding the
constitutionality of the bar examination and of Admission and Discipline Rule 2.1.
The Court directed the State to do so.
Shortly after the Court ordered the State to respond to those allegations, the
Plaintiff filed a motion for reconsideration of the Court’s entry on jurisdiction and
moved for leave to file a third amended complaint (Dkt. No. 39). With the
Plaintiff’s motions pending, the State filed a motion to dismiss the Plaintiff’s
claims in his Second Amended Complaint challenging the constitutionality of the
bar examination and Admission and Discipline Rule 2.1 (Dkt. No. 43). The

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Plaintiff filed a notice of partial dismissal, voluntarily dismissing his claims
relating to the constitutionality of the bar examination, but reserving the
opportunity to respond to the State’s motion to dismiss that claim in the event that
the Court reconsidered its entry on jurisdiction. See Dkt. No. 48 at 2.
Dkt. No. 55 at 1-2.
On September 21, 2017, the Court granted the Plaintiff’s motion for reconsideration to
the extent that it would hold a hearing on the issue of bad faith. It ordered the parties to appear
before it to help the Court determine whether the bad faith exception to Younger abstention
applied to the Plaintiff’s claims related to his bar examination application. And, because it was
unclear whether bad faith had occurred in the state proceeding, and thus unclear whether the
Plaintiff’s third amended complaint would be futile, the Court granted the Plaintiff’s motion for
leave to file his third amended complaint. It further denied as moot the State’s motion to dismiss
(Dkt. No. 43).
Pursuant to this Court’s Order, the Court held a hearing on October 26, 2017. The
Plaintiff and State appeared, and the Court heard evidence on whether the bad faith exception to
the Younger abstention doctrine applies to the Plaintiff’s claims relating to his bar admission
application.
II.

BAD FAITH ISSUE

When a federal court determines that a pending state proceeding is conducted in bad
faith, extraordinary circumstances exist that allow a possible exception to Younger abstention.
FreeEats.com v. Indiana, 502 F.3d 590, 596 (7th Cir. 2007). In such circumstances the court
may exercise jurisdiction. Id. The Plaintiff contends that the state proceeding was conducted in
bad faith and thus warrants this Court’s jurisdiction. He argues as follows:

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The Board [of Law Examiners] currently holds [him] in limbo for the duration of
his suspension by failing to issue a final action, precluding judicial review by the
Indiana Supreme Court. Or, if the Board did hold a final hearing in [his] absence,
this too holds [him] in limbo for the duration of his suspension by failing to provide
[him] with the Board’s notice of final action in sufficient time to allow [him] to seek
judicial review by the Indiana Supreme Court within the 20 days allotted under
Admission and Discipline Rule 14, Section 2.
Dkt. No. 39 at 6.
A.

The June 30, 2016 Hearing and the Board of Law Examiners’ Decision

The Board of Law Examiners (“the Board”) scheduled a hearing that was to be held on
June 30, 2016. The Board’s counsel, Libby Milliken, contacted the Plaintiff on June 29, 2016, to
determine whether he “intend[ed] on withdrawing his request for a hearing.” Dkt. No. 39 at 5.
The Plaintiff responded to the inquiry, stating, in part, that he believed that the “hearing cannot
save the Board’s constitutional violations” and said that the hearing would be “a complete waste
of time for me and those expected to attend.” Id. at 5-6. He also stated that “any action taken by
the Board would be futile and meaningless.” Id. at 6. He did not attend a hearing and stated that
he did not know whether the Board of Law Examiners proceeded with the hearing. Id. He also
explained that he “ha[d] not received ‘specific findings of fact, conclusion and
recommendations’ as required by Admission and Discipline Rule 12, Section 9.” Id.
In fact, the Board did hold a hearing on June 30, 2016. A panel of three Board members
participated in the hearing (“Hearing Panel”). The State of Indiana presented evidence; as
promised, the Plaintiff did not attend.
On July 14, 2016, the Hearing Panel presented to the Board findings of fact, conclusions
of law, and a decision for the Board’s consideration. The Hearing Panel reached the following
conclusions:

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1.
[The Plaintiff] has operated a business in which he offers independent legal
research services in violation of Guideline 9.1 in the Indiana Rules of Professional
Conduct.
2.
[The Plaintiff] also has admitted that he was unaware of that rule until the
Board called it to his attention, showing that he lacks fitness to practice law.
3.
[The Plaintiff] also has stated that Rule 9.1 does not apply to non-attorneys,
implying that he need not follow it. As an applicant for the Indiana bar, both his
failure to follow Rule 9.1 and his position that he is not required to follow it show
that he lacks character and fitness to practice law in Indiana.
4.
[The Plaintiff] also proposed to the Indiana Supreme Court a rule change
regarding notice of Board of Law Examiners’ proceedings. In his letter to the
Court, the applicant misrepresented his interactions with the Board. He stated that
“I have no idea why he [sic] Board has commanded my appearance, and upon
inquiry, the Board declines to provide any information whatsoever regarding the
subject matter of the meeting.” This statement was not correct because the Board
had sent him specific questions about [Albrechtsen Law, LLC], providing more
than “no idea” of the subject matter the Board was concerned about. This conduct
shows that the applicant lacks the character required to practice law in Indiana.
5.
The applicant’s petition for writ of prohibition filed by the applicant was
dismissed because the applicant had not completed the Board’s administrative
process. The applicant admitted in a later court filing that he was unaware of his
responsibility to request a formal Board hearing despite the description of that
process in Admission & Discipline Rule 12, Section 7. This failure indicates that
the applicant lacks fitness to practice law in Indiana.
6.
[The Plaintiff] failed to disclose to the Board at least four civil proceedings
to which he was a party despite a clear requirement in the application that he do so.
This omission shows that the applicant lacks both character and fitness to practice
law in Indiana.
7.
The LinkedIn website maintained by [the Plaintiff] would lead a reasonable
person to conclude that he is a lawyer admitted to practice law in Indiana. This
misrepresentation shows that the applicant lacks the character to practice law in
Indiana.
Hearing Ex. A.
Based on those conclusions, the Hearing Panel recommended that the Board determine
that the Plaintiff lacks the character and fitness required to practice law in Indiana and that he not
be permitted to re-apply for admission to the Indiana bar until February 2021. Id. On July 14,
2016, the Board approved and adopted the Hearing Panel’s findings of fact, conclusions of law,
and decision. Id.
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B.

Communicating the Board’s Decision to the Plaintiff

On July 15, 2016, the Board sent the Plaintiff by certified mail return receipt requested
and by email copies of the Board’s decision and the Hearing Panel’s findings of fact, conclusions
of law, and decision recommendation.1 See Hearing Exs. B & C. It sent the information to the
address provided by the Plaintiff on his bar application and to the email address the Plaintiff had
used to correspond with the Board the day before the hearing was held.2 The Board has no
record of receiving a return receipt on the mailing, so it does not have confirmation that the
Plaintiff received the mailing. There is no indication, however, that the mailing was returned to
the Board as unclaimed or any apparent reason why it would have been.
The Board received a reply message from the Plaintiff’s email address, which it believed
indicated that the Plaintiff might not have received its July 15, 2016, message. See Hearing Ex.
D. The message’s subject line read “Returned mail; User unknown,” and the message described
the Plaintiff’s email address as having “permanent fatal errors.” Hearing Ex. F.3 As a result, on
July 17, 2016, the Board sent the Plaintiff another email forwarding the July 15, 2016, email and
attached documents. Id. It again received a reply message from the Plaintiff’s email address,
which it believed indicated that its July 17, 2016, email might not have been received by the
Plaintiff. Id. It again forwarded the July 15, 2016, email and attached documents to the same

1

As the Plaintiff noted at the hearing before this Court, the mailings and electronic
communications from the Board to him did not contain the hundreds of pages of exhibits to the
Hearing Panel’s document.
2
The Court notes that the physical address is one that the Plaintiff used on his most
recent filings in this Court, Docket Nos. 58 and 62, and is, therefore, presumed to be valid and
associated with the Plaintiff at the time of the Board’s mailings. It is not, however, the address
that the Plaintiff has on file with this Court as his address for corresponding regarding matters in
this lawsuit.
3
Exhibit 1 to this Entry is an excerpt of Hearing Exhibit F, containing the reply
messages sent from the Plaintiff’s email address.
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email address on July 18, 2016. Hearing Ex. E. In addition, on July 19, 2016, the Board sent
another letter and copy of the documents by first class U.S. mail to the same physical address as
it sent the July 15, 2016, mailing. Hearing Ex. F. This mailing was stamped “Return to Sender”
and returned to the Board. See Hearing Ex. G. The Board made another attempt to mail the
documents to the Plaintiff on July 28, 2016. See Hearing Ex. H. This time, it mailed the
documents to the physical address that this Court has on file as the Plaintiff’s official address for
correspondence in this lawsuit. There is no indication that this mailing was returned to the
Board.
C.

No Bad Faith

Given the Board’s numerous attempts to provide the Plaintiff with its decision, the Board
did not act in bad faith. The Board neither withheld final action by not conducting a hearing, nor
avoided providing its decision to the Plaintiff “in order to preclude judicial review,” as the
Plaintiff has speculated to this Court. See Dkt. No. 39 at 7.
Rather, the Board held a hearing before a Hearing Panel on June 30, 2016. The Hearing
Panel presented the Board with findings of fact, conclusions of law, and a recommended decision
on July 14, 2016, and on the same day, the Board approved and adopted the Hearing Panel’s
findings of fact, conclusions of law, and decision. Moreover, the Board attempted to provide this
information to the Plaintiff by mail and electronic communication the following day and again
by various means four additional times thereafter. The Board’s attempts to provide the Plaintiff
with notice show that it was not acting in bad faith.
At the hearing, the Plaintiff did not explain why he might not have received mail properly
addressed to him at two different valid addresses, nor did he explain why, in the case of the
Board’s July 19, 2016, mailing, a piece of mail properly addressed to him would have been

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stamped “return to sender.” Although it does not appear that the July 15, 2016, certified mailing,
and the July 28, 2016, mailing were returned to the Board, the Plaintiff argues that he did not
receive notice of the final action by the Board until it was provided to him by the Board in
conjunction with this case, approximately ten days before the October 26, 2017, hearing in this
Court. Nonetheless, having attempted to get its decision to the Plaintiff on six occasions, the
Board did not in bad faith act to conceal its findings from the Plaintiff. It did not, as the Plaintiff
suggests, keep him in limbo or prevent him from petitioning the Indiana Supreme Court to
review the Board’s decision.
Assuming timely delivery of the July 15 and July 28 mailings, the Plaintiff would have
had to have filed a petition for review with the Indiana Supreme Court within 20 days of
receiving the Board’s decision. See Indiana Rule for Admission and Disciple Rule 14, Section 2
(“Any applicant aggrieved by the final action of the State Board of Law Examiners in refusing to
recommend to the Supreme Court of Indiana the admission of the applicant to practice law in
Indiana for any reason other than the failure to pass any examination as set forth in section (1)
may, within twenty (20) days of receipt of notification setting forth the reason for the refusal, file
a petition with the Supreme Court of Indiana requesting review by [that] Court of such final
determination.”). At the time of the October 26, 2017, hearing, the Plaintiff had not filed such a
petition. However, the Plaintiff has filed in this Court a Motion to Stay Younger Abstention
Ruling (Dkt. No. 62), in which he indicated that, on October 30, 2017, he filed with the Indiana
Supreme Court a “Motion for Ind. Admission and Discipline Rule 12, §9 Hearing Review
Determination.” See Dkt. No. 62-1.
Whether or not the Plaintiff’s petition was timely filed is not a question this Court must
answer. At present, the matter is still pending before the Indiana Supreme Court. Because it is

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still pending at this time, and because the Defendants did not act in bad faith in the state
proceeding, Younger abstention dictates that this Court not exercise jurisdiction over the
Plaintiff’s claims related to his bar examination application.4 Accordingly, the Court DENIES
the Plaintiff’s motion to stay Younger abstention ruling (Dkt. No. 62), DENIES the Plaintiff’s
motion for reconsideration (Dkt. No. 39), and, for lack of subject matter jurisdiction,
DISMISSES WITHOUT PREJUDICE all claims in the Plaintiff’s Third Amended Complaint,
except for his claim regarding the constitutionality of Admission and Discipline Rule 2.1.5
III.

ADMISSION AND DISCIPLINE RULE 2.1

The only claim remaining before this Court is the Plaintiff’s claim regarding the
constitutionality of Admission and Discipline Rule 2.1, the rule governing legal intern
certification. At the October 29, 2017, hearing, the parties agreed that this claim is ready to be
resolved as a matter of law. The parties presented their arguments in the briefs relating to the
State’s motion to dismiss. The Court now considers this claim.
Indiana Admission and Discipline Rule 2.1 allows law students and law school graduates
who meet particular criteria to work as certified legal interns. The Plaintiff takes issue with
Admission and Discipline Rule 2.1’s Section 2(b), which allows law school graduates to serve as
legal interns only “from the date of graduation until the graduate has taken and has been notified
of the results of the first examination for which the graduate is eligible under Admission and

4

Even if the state proceeded were concluded, the Rooker-Feldman doctrine would
preclude this Court’s review of these claims.
5
At the hearing, when referring to his claim regarding the constitutionality of the bar
examination, the Plaintiff agreed that, if the Court were to “rule against me on the Younger
abstention rule, it will be dismissed.” The Court, therefore, dismisses without prejudice that
claim as well.
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Discipline Rule 13, or if successful on that examination, until the first opportunity thereafter for
formal admission to the Bar of Indiana.”6 Ind. Admis. Dis. R. 2.1.
The Plaintiff argues that Admission and Discipline Rule 2.1 “violates his right to equal
protection . . . [because] it discriminates against law school graduates who sit for their second bar
exam or subsequent bar exams, and law school graduates who decline to take the bar exam”
because Section 2(b) prohibits them from becoming certified legal interns. Dkt. No. 49 at 2
(internal quotation and citation omitted). He argues that “he is unable to utilize his juris
doctorate degree and law experience to serve as a legal intern for any Indiana attorney,” which
prevents him from “pursuing his lawful calling[] and property interest in obtaining the needbased benefit of employability.” Dkt. No. 49 at 7. He asserts that the strict scrutiny standard of
review should apply because working as a certified legal intern is a fundamental right. Id. He
contends that Admission and Discipline Rule 2.1 “does not satisfy a compelling or important
government interest[] and is not substantially related to serving that interest,” id. at 2, resulting in
a “Fourteenth Amendment deprivation,” id. at 7.
Although the Plaintiff correctly indicates that the Fourteenth Amendment includes a
generalized fundamental liberty to pursue a vocation, states have “a constitutionally permissible”
and “substantial interest in the qualifications of those admitted to the practice of law.” In re
Griffiths, 413 U.S. 717, 723; 725 (1973). “The right to practice law without taking a bar
examination is not a fundamental right for equal protection purposes.” Scariano v. Justices of
Supreme Court of State of Ind., 38 F.3d 920, 924 (7th Cir. 1994) (citation omitted). In regulating

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The Plaintiff does not appear to challenge the constitutionality of Admission and
Discipline Rule 2.1 as a whole. Rather, he focuses on Section 2(b) of the rule. Although the
Court refers to “Admission and Discipline Rule 2.1” in this Entry, it addresses the Plaintiff’s
challenge to Section 2(b).
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the practice of law, “[a] State can require high standards of qualification, such as good moral
character or proficiency in its law . . . , but any qualification must have a rational connection
with the applicant’s fitness or capacity to practice law.” Schware v. Board of Bar Examiners of
New Mexico, 353 U.S. 232, 239 (1957) (citations omitted) (emphasis added); see also Scariano,
38 F.3d at 924 (applying rational basis review to Indiana bar admission rule).
By extension, the same can be said regarding the state’s regulation of certified legal
interns. A rational basis test applies to rules governing certified legal interns because they are, in
effect, practicing law, albeit to a limited extent. See Ind. Admis. Dis. R. 2.1, Section 4 “Scope of
Conduct” (Certified legal interns are permitted to “interview, advise, negotiate for, and represent
parties in any judicial or administrative proceeding in this State, provided all activities
undertaken are supervised and approved by an attorney who is a member of the Bar of this
State.”). In this case, the Plaintiff has articulated no viable reason for requiring a higher level of
scrutiny: Being able to work as a certified legal intern, just like working as a lawyer, is not a
fundamental right, and there is no suspect class at issue here. Accordingly, the question before
this Court is whether Admission and Discipline Rule 2.1 is rationally related to a legitimate
government interest.7
The Defendants argue that Admission and Discipline Rule 2.1 is rationally related to the
state’s interest in providing practical training to “allow[] law students and graduates who have
not yet sat for their first bar an opportunity designed ‘to be beneficial to the law student’s
training.’” Dkt. No. 44 at 12 (quoting Ind. Admis. Dis. R. 2.1). They also argue that the “legal

As the Seventh Circuit explains in Scariano, “[f]or the purposes of constitutional
inquiry, courts treat [Admission and Discipline] Rules as legislation,” 38 F.3d at 923, because in
making the rules, the Indiana Supreme Court exercises the authority granted it by Indiana’s
constitution, Brown v. Bowman, 668 F.3d 437, 439 (7th Cir. 2012) (citing Ind. Const. art. VII, §
4).
7

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intern program is simply another tool” the state uses to regulate the quality of legal practice and
that courts have found that states have a legitimate interest in such regulations. Dkt. No. 44 at
12-13 (citing Sestric v. Clark, 765 F.2d 655, 663 (7th Cir. 1985) (“[T]he states have been held to
have a legitimate interest in regulating the quality of legal practice.”)). They further explain that
limiting law school graduates’ ability to work as certified legal interns to the time from the date
of graduation until the graduate has taken and has been notified of the results of the first
examination for which the graduate is eligible, or if successful on that examination, until the first
opportunity thereafter for formal admission to the Bar of Indiana is a necessary part in regulating
the quality of the state’s legal practice. Dkt. No. 44 at 14. They argue that those who have failed
the bar examination have demonstrated that they do not have the requisite capacity to practice
law in Indiana and, for that reason, should not continue to be eligible to work as legal interns. Id.
at 13. The Defendants also argue that, “by simply never taking the bar examination, a law school
graduate could simply avoid the requirement of showing that he or she does not have the
requisite capacity to practice law,” which would thwart the state’s ability to regulate the quality
of legal practice. Id. at 14.
The Court agrees with the Defendants’ arguments. To protect the quality of the state’s
legal practice, the Indiana Supreme Court implemented Section 2(b) to prevent law school
graduates who have demonstrated a lack of capacity and those who have chosen to avoid
demonstrating capacity from working as legal interns. Just as bar examinations have been found
to have a rational relationship to the states’ interest in evaluating bar applicants’ capacity to
practice law,8 the requirements in Admission and Discipline Rule 2.1’s Section 2(b) have a

See, e.g., Poats v. Givan, 651 F.2d 495, 497 (7th Cir. 1981) (“Bar examinations have a
rational connection with the applicant’s fitness or capacity to practice law.”).
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rational relationship to the state’s legitimate interest in regulating the quality of legal practice.
The Defendants have met their burden of identifying a legitimate state interest and showing that
Admission and Discipline Rule 2.1, including Section 2(b), is rationally related to furthering that
interest. Accordingly, the Defendants are entitled to judgment on this claim.
IV.

CONCLUSION

For all of the reasons described above, the Court now DENIES the Plaintiff’s motion for
reconsideration (Dkt. No. 39), DENIES the Plaintiff’s motion to stay Younger abstention ruling
(Dkt. No. 62), DISMISSES WITHOUT PREJUDICE for lack of subject matter jurisdiction all
of the Plaintiff’s claims in the Third Amended Complaint, except for his claim regarding the
constitutionality of Admission and Discipline Rule 2.1, as to which judgment will be entered as a
matter of law in favor of the Defendants.
SO ORDERED: 11/17/17
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copy by U.S. Mail to:
Mark A. Brooks-Albrechtsen
2230 Stafford Road
Suite 115
Plainfield, IN 46168

Copy to all counsel of record via electronic notification

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