In the Savoy Opera The Gondoliers, the Grand Inquisitor is aghast to discover the existence of a republican monarchy where commoners and peasants have been elevated to the ranks of the nobility. He argues that there is a need for distinction, because, “When everyone is somebody, then no one’s anybody.” This bit of literary excursus begins the Eleventh Circuit’s opinion in Zisser v. The Florida Bar (10-11974), where the Court rejected an attorney’s constitutional challenge to the Florida Bar’s decision to deny her certification as a family law specialist and upheld its confidential peer review procedure to assess the fitness of applicants.
Carolyn Zisser had been certified as a marital and family law specialist by the Florida Bar in 1985, but in 2000, after receiving unsatisfactory peer reviews, her application for recertification was denied. While the Florida Bar refused to reveal the identities of the persons who provided negative assessments of Zisser’s performance as an attorney, it revealed the assessments uniformly depicted Zisser as having a “tendency to over litigate [her] cases . . . and to overcharge on [her] fees, resulting in excessive costs creating a financial hardship for clients and a disservice to opposing counsel, the judiciary, and the legal system.” Zisser challenged the Bar’s decision administratively on grounds that denying her recertification on the basis of anonymous peer review amounted to a violation of due process under the Constitution because it denied her a meaningful opportunity to confront and impeach witnesses and challenge the accuracy of the peer review findings.
After exhausting her administrative remedies, Zisser filed a challenge of the Bar’s decision to the Florida Supreme Court; again, contending that the confidential peer review process amounted to a denial of due process. In a one sentence order, the Florida Supreme Court denied her petition for review.
Zisser renewed her challenges in the U.S. District Court for the Middle District of Florida. There, she asserted as-applied and facial challenges to the Bar’s certification procedures, specifically the confidential peer review portion of the process. The district court rejected her claims, finding that because the Florida Supreme Court had denied her petition that asserted her as-applied constitutional challenges, the Rooker-Feldman doctrine dispossessed it of subject matter jurisdiction. The district court further held that Zisser’s facial attacks on the certification procedures could not succeed because she failed to establish the first element of a procedural due process challenge: the existence of a constitutionally protected property or liberty interest. Zisser appealed.
Before a panel of the Eleventh Circuit, Zisser argued the Rooker-Feldman doctrine did not apply because the Florida Supreme Court said only that it declined to review her petition and, as such, it did not consider the merits of her as-applied challenge. The panel cast aside this argument, noting that in District of Columbia v. Feldman the D.C. Court of Appeals had likewise denied the appellant’s petition for review in a one sentence order. And while the order in Feldman stated the court had considered the petition and denied it, as opposed to the Florida court saying it was denying review of the petition, the panel found that to be a distinction without a difference because while the form the denial took in Feldman was different, the nature and effect of the denial was the same. Because there was no indication that the Florida Supreme Court’s denial was unconnected to the merits of the case, Rooker-Feldman deprived the federal courts of jurisdiction.
Zisser next argued that the Bar’s rules allowing an applicant to be denied certification based on undisclosed peer comments violated due process because an applicant was not given notice of the identities of her detractors and could not challenge their negative assessments. The Court rebuffed this argument as well. As a general proposition, to establish a procedural due process violation a party must prove (1) a deprivation of a constitutionally protected liberty or property interest, (2) by a state actor, and (3) constitutionally inadequate process. According to the Court, Zisser’s claim failed because an attorney has no cognizable property or liberty interest in certification or recertification in a field of legal specialty. Distinguishing Shahawy v. Harrison, 875 F.2d 1529 (11th Cir. 1989), where it had previously held that a physician had a constitutionally protected property interest in his medical staff privileges at a hospital, the Court said that “unlike hospital staff privileges, which provide physicians with the ability to employ their skills at a hospital, board certification provides no such benefit and is irrelevant to an attorney’s ability to practice or appear before any court.”
The Court also rejected Zisser’s contention that a constitutionally protected liberty interest was at stake because an attorney denied certification suffers damage to her professional reputation. To establish such a claim, a party must show (1) a stigmatizing allegation, (2) dissemination or publication of that allegation, and (3) loss of some tangible interest due to publication of the stigmatizing allegation. According to the Court, lack of certification in a field of specialty is not stigmatizing. The purpose of Florida’s certification program is merely to distinguish “the most exceptional attorneys practicing in their chosen field. A denial of certification, at most, denotes that the candidate, in the eyes of the Florida Bar, does not fall within this select group, nothing more. Surely not all can claim the vestiges of the elite.”
Moreover, with respect to the second part of the test, the Florida Bar does not publish or otherwise disseminate the fact that an attorney’s application for certification or recertification was denied. Noting the irony presented by Zisser’s reputational damages claim, the Court said: “The fact that Zisser’s application was denied apparently became public only because she appealed that denial and filed this lawsuit.”
While this case considered the issue of whether an attorney has a property or liberty interest in being certified in a legal specialty, it has broader implications. By extension, the Court’s reasoning would apply to any state or state sponsored organization that bestows distinctions, privileges, and other honorarium. A party would likely have no constitutional property or liberty claim in a vestige of honor or distinction if being deprived of that honor would not prevent the individual from working in their chosen profession or cause them to suffer reputational harm.