Petition — Supreme Court of Illinois v. Ktsanes

Court. U. $

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= 25 NOV 111977

Supreme Court of the UnitedoSiates sx. cum

Ocroser Term, 1977

No 7-691 4

SUPREME COURT OF ILLINOIS, HON. DANTEL P.

WARD, HON. ROBERT C. UNDERWOOD, HON.

JOSEPH H. GOLDENHERSH, HON. HOWARD C.

RYAN, HON. WILLIAM G. CLARK, HON. THOMAS

J. MORAN, HON. JAMES A. DOOLEY, JUSTICES

OF THE SUPREME COURT OF ILLINOIS; LEN Y.

SMITH, CLYDE 0. BOWLES, JR., JOHN B. HEND-

RICKS, GHORGE RB. LER, AND FRANCIS D. MOR-

RISSEY, MEMBERS OF THE STATE BOARD OF

LAW EXAMINERS,

Petitioners,

Vs.

BASIL D. KTSANES,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

WILLIAM J. SCOTT,

Attorney General of L[linois,

160 N. LaSalle Street,

Chicago, Illinois 60601,

Attorney for Petitioners.

Hersert Ler CapPian,

Assistant Attorney General,

(312) 793-3813

Of Counsel.

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Constitution and Regulation Involved ...............

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I. The Decision Of The Seventh Circuit Is In Con-

flict With Decisions Of Other Courts Of Appeals

And Applicable Decisions Of The Supreme Court

II. Sound Principles Of ‘‘ Equity, Comity And Fed-

eralism’’ Preclude An Exercise Of Original Jur-

isdiction By The District Court ...............

FTO ETOCS OCE EET TE TUTTTT TT CITT roe Te

Appendix A—Opinion of the Seventh Cireuit ........

Appendix B—Supplemental Opinion of the Seventh

DNC iitedyh fies eisai. eat

Appendix C—Opinion of the District Court .........

Appendix D—Opinion—-Richardson et al. v. McFadden

et al., No. 73-2512, F, 2d —— (4th

oe OM. i Pree rrr eres

TABLE OF AUTHORITIES

Federal Cases

Doe v. Pringle, 550 F. 2d 596 (10th Cir. 1976) ......

In Re Summers, 325 U.S. 561, 65 S. Ct. 1307 (1945)

Jones v. Hulse, 391 F. 2d 198 (8th Cir. 1968) ........

Judice v. Vail, 4830 U.S. ——, 97 S. Ct. 1211 (March

Sy EE 5 bac has paces bee baneces aes nastaeeseis

D1

ii.

MacKay v. Nesbitt, 412 F. 2d 486 (9th Cir. 1969) .... 9 pain

Richardson et al. v. McFadden et al., No. 73-2512, °

F. 24 —— (4th Cir. Oct. 12, 1977) .......... 12 Supreme Court of the United States

Rooker v. Fidelity Trust Company, 263 U.S. 413, 44

S. Ct. 149, 68 L. Ed. 362 (1923) ...........0. 0008. 10 Ocroper Term, 1977

Schware v. Board of Bar Examiners of the State of

New Mexico, 353 U.S. 232, 77 S. Ct. 752 (1957)... 11 No

Statutes

ee i eeesacubae renenue 4

U.S. Const. XI Amend. ..............00cceeeceeee 4 SUPREME COURT OF ILLINOIS, HON. DANIEL P.

28 U.S.C. § 1254(1) .......cecececcccccccceeceeees 4 WARD, HON. ROBERT C. UNDERWOOD, HON.

98 U.S.C. $1257 oo... cc ccccceccecccecuees. 8 JOSEPH H. GOLDENBERSH, BOM. BOwAm ©.

sii ........................... RYAN, HON. WILLIAM G. CLARK, HON. THOMAS

oan eet 4 J. MORAN, HON. JAMES A. DOOLEY, JUSTICES

NUE. ocans ca pan deaanuasseneaWinsekses 8 OF THE SUPREME COURT OF ILLINOIS; LEN Y.

a. isi dcncaduwewasdnouensaussae 4 SMITH, CLYDE 0. BOWLES, JR., JOHN B. HEND-

I occu cau cckckucacacaveevsid vac. 5 | RICKS, GEORGE B. LEE, AND FRANCIS D. MOR-

PROP. 120)(1) ooo sees esses eeeeeeeee RISIEY, MEMBERS OF THE STATE BOARD OF

oo ccs cavuelevsciudcnievsedass 12 | — en

State Statutes and Rules | —

Ill. Const. Art. VI, 84........c.c ccc cecececucueees 5 | a

Ill. Rey, Stat. 1975, Ch. 110A, § 701(a) ............ 5 | BASIL D. KTSANES,

Ill, Rey, Stat. 1975, Ch. 110A, § 702 ............005. 5 | Respondent.

Ill. Rev. Stat. 1975, Ch. 110A, $704 0.0.0.0 ...0 0000. 5 |

Ill. Rev. Stat. 1975, Ch. 110A, § 705(d) ........ 4, 5, 6, 8 | PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

2

Petitioners, Supreme Court of Illinois, Hon. Daniel P.

Ward, Hon. Robert C. Underwood, Hon. Joseph H. Gold-

enhersh, Hon. Howard C. Ryan, Hon. William G. Clark,

Hon. Thomas J. Moran, Hon. James A. Dooley, Justices

of the Supreme Court of Illinois; Len Y. Smith, Clyde O.

Bowles, Jr., John B. Hendricks, George B. Lee, and Fran-

cis Morrissey, members of the State Board of Law Ex-

aminers, respectfully pray that a Writ of Certiorari issue

to review the judgment and opinion of the United States

Court of Appeals for the Seventh Circuit entered in this

proceeding on March 23, 1977, as supplemented on August

15, 1977 on denial of petition for rehearing.

OPINION BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit is reported at 552 F. 2d 740 and is

included herein as Appendix A. The supplemental opinion

on denial of petition for rehearing is reported at 560 F. 2d

790 and is included herein as Appendix B. The opinion of

the district court is not reported and is included herein as

Appendix C.

JURISDICTION

The judgment of the Court of Appeals was entered on

March 23, 1977. A timely petition for rehearing and sug-

gestion ef rehearing en bane was denied on August 15,

1977. This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1), 2101(c) and 2106.

QUESTION PRESENTED

Whether a decision of the Illinois Supreme Court deny-

ing an applicant admission to practice without examina-

tion on foreign license may be reviewed and collaterally

attacked by an original action in federal district court.

3

CONSTITUTION AND REGULATION

INVOLVED

Tenth Amendment to Constitution of the United States:

“The powers not delegated to the United States

by the Constitution nor prohibited by it to the States,

are reserved to the States respectively, or to the

people.”’

Eleventh Amendment to Constitution of the United States:

‘‘The judicial power of the United States shall not

be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens

or Subjects of any Foreign State.’’

Rule 705(d) Illinois Supreme Court.

Til. Rev. Stats., 1975, Chap. 110A, § 705(d):

‘‘(d) An applicant who has taken and failed to

pass the bar examination in Illinois shall not be eli-

gible to apply for admission on foreign license.’’

STATEMENT OF THE CASE

This is an action brought pursuant to 42 U.S.C. § 1983

against the Justices of the [Illinois Supreme Court and

the court-appointed members of the State Board of Law

Examiners, to enjoin enforcement of Illinois Supreme

Court Rule 705(d) and overturn a final decision of the

court which denied respondent’s petition to be admitted

to the bar of Illinois without the requirement that he suc-

cessfully pass the Illinois written bar examination.

The complaint alleges that respondent had failed the

Illinois written har examination but was subsequently

admitted to the bar of Kentucky and is entitled to be ad-

mitted to practice in Illinois as a foreign licensee.

The Illinois Supreme Court is the highest court of the

State of Illinois [Tll. Const. Art. VI, §4] and, inter alia,

prescribes general qualifications for admission to practice

law in Illinois [Sup. Ct. Rule 701(a), 705(d)] and ap-

points a Board of Law Examiners to conduct written bar

examinations. [Sup. Ct. Rule 702, 704]

Respondent has taken and failed to pass the Illinois

written bar examination. An unsuccessful applicant may

take successive written examinations until he is able to

qualify. [Sup. Ct. 704(d)]

Respondent did not retake the Illinois written bar ex-

amination but, instead, moved to Kentucky and approxi-

mately one year later was admitted to the Kentucky bar.

Respondent subsequently returned to the State of Illinois

and sought admission to the Illinois Bar upon foreign li-

cense without the requirement that he successfully pass

the Illinois written bar examination.

5

Illinois Supreme Court Rule 705(d) expressly provides:

**An applicant who has taken and failed to pass the

bar examination in Illinois shall not be eligible to

apply for admission on foreign license.’’ [Ill. Rev.

Stats. 1975, chap. 110A, § 705(d)]

The State Board of Law Examiners informed respond-

ent of the existence of Supreme Court Rule 705 (d) and its

application to his case. Respondent petitioned the Illinois

Supreme Court for admission to practice and waiver of

the rule in his case. On March 18, 1975, the [Illinois Supreme

Court denied respondent’s petition for waiver of Rule

705(d) and for admission to the bar of Illinois without

examination on foreign license.

Respondent did not seek review of the adverse Illinois

Supreme Court decision before the United States Supreme

Court.

Approximately seven months after denial of his state

court petition, respondent filed suit in the United States

District Court for the Northern District of Illinois, East-

ern Division, seeking to enjoin the Illinois Supreme Court

and the Board of Law Examiners from enforcing Rule

705(d) against him and to declare the rule to be in vio-

lation of the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution.

Petitioners filed a motion to dismiss the complaint pur-

suant to Rule 12(b)(1),(2),(6), Fed. R. Civ. P. On April

20, 1976, the Honorable Joseph Sam Perry entered an or-

der dismissing the complaint for lack of district court

jurisdiction and failure to present a substantial federal

question. [App. C]

An appeal was then taken to the United States Court

of Appeals for the Seventh Circuit, which on March 23,

1977, reversed the decision of the district court [App. A],

concluding that:

| |

6

‘*[petitioners’] denial of [respondent’s] request for

an exemption from Rule 705(d) of the Supreme Court

of Illinois was purely an administrative act and did not

qualify as a ‘ease or controversy’ under Article IIT

of the Constitution so as to render it directly appeal-

able to the Supreme Court of the United States. Thus,

there existed no jurisdictional bar under the doctrines

of res judicata or collateral estoppel to federal con-

sideration of [respondent’s] constitutional claims be-

eause [respondent’s] action was not a collateral at-

tack upon a judicial decision rendered by the Illinois

Supreme Court.’’ (Emphasis in original.)

Petition for rehearing and suggestion of rehearing en

banc was denied on August 15, 1977. [App. B]

REASONS FOR GRANTING THE WRIT

I

THE DECISION OF THE SEVENTH CIRCUIT IS IN

CONFLICT WITH DECISIONS OF OTHER COURTS

OF APPEALS AND APPLICABLE DECISIONS OF

THE SUPREME COURT.

The opinion of the Seventh Cireuit Court of Appeals

entered March 23, 1977, as supplemented on August 15,

1977, holds, apparently for the first time, that a denial

by the Illinois Supreme Court of a petition for admission

to the bar may be collaterally attacked and relitigated by

a de novo action in the district court. Petitioners contend

that the district court lacks subject matter jurisdiction.

The operative facts of the case are not in dispute. Plain-

tiff filed a ‘‘ Petition for Admission to the Bar of Illinois’’

before the Illinois Supreme Court seeking admission with-

ovt examination, notwithstanding Supreme Court Rule

705(d).* The petition was denied on March 18, 1975. No

“Reference to ‘‘a reciprocity agreement’’ in the circuit

court's opinion is incorrect. (App. A4) Admission is

based solely upon the practice requirement detailed in

Rule 795 and not upon reciprocity.

7

appeal was taken. Seven months later the instant action

was filed in the district court challenging the denial of

admission to the bar on federal constitutional growids.

The allegations in the district court complaint are iden-

tical to the allegations in the Supreme Court petition, ex-

cept for the additional legal argument that the Supreme

Court policy expressed in Rule 705(d) ‘thas no rational

connection with the plaintiff’s fitness or capacity to prac-

tice law,’’ and ‘‘is contrary to the Equal Protection Clause

of the Fourteenth Amendment to the Constitution of the

United States.’’

In Jn Re Summers, 325 U.S. 561, 65 S. Ct. 1307 (1945),

the United States Supreme Court held that the denial of

a petition for admission to the practice of law by the

Illinois Supreme Court is a case or controversy or judicial

proceeding that is directly reviewable by the United States

Supreme Court. The Court held:

“A claim of a present right to admission to the bar of

a state and denial of that right is a controversy. When

the claim is made in a state court and a denial of that

right is made by judicial order, it is a case which

may be reviewed under Article III of the Constitu-

tion when federal questions are raised and proper

steps taken to that end, in this Court.’’ 325 U.S. at

568-569.

Title 28 U.S.C.§ 1257 provides that:

‘‘Final judgments or decrees rendered by the high-

est court of a State in which a decision could be had,

may be reviewed by the Supreme Court... .’’

Title 28 U.S.C.§ 2104 provides that:

‘‘An appeal to the Supreme Court from a State court

shall be taken in the same manner and under the same

regulations, and shall have the same effect, as if the

judgment or decree appealed from had been rendered

in a court of the United States.’’

8

In Doe vy. Pringle, 550 F. 2d 596 (10th Cir. 1976), cert.

den., US. , 97 S. Ct. 2179 (1977), the plaintiff was

denied bar admission by the Colorado Supreme Court be-

cause he had bee convicted of a felony. As in the case at

bar, he petitioned the Supreme Court for admission, con-

tending he had been rehabilitated and was presently fit

to practice. The petition was denied. No appeal was taken,

and a de novo action was filed in the district court under

Section 1983 alleging that the Colorado Supreme Court

had acted arbitrarily and capriciously and had denied him

equal protection of the law. The Tenth Circuit held that

the district court:

‘‘is without subject matter jurisdiction to review a fi-

nal order of the Colorado Supreme Court denying

a particular application for admission to the Colorado

Bar. This rule applies even though, as here, the chal-

lenge is anchored to alleged deprivations of federally

protected due process and equal protection rights.’’

(Emphasis added in original.)

The applicable and controlling principles of law, as they

apply in the case at bar as well, were succinctly summa-

rized in the concurring opinion of Judge Breitenstein:

‘*Doe’s sole claim is that in his particular situation

the actions of the Colorado Supreme Court denied his

federal constitutional rights to due process and equal

protection. The action of the Colorado court was ju-

dicial rather than administrative. A federal district

court does not sit as an appellate court to review ac-

tions of a State Supreme Court. Doe’s recourse was to

petition the Supreme Court of the United States for

certiorari review of the action of the state supreme

court.’’

In MacKay v. Nesbitt, 412 F. 2d 846 (9th Cir. 1969), the

plaintiff filed an action in the district court seeking to have

a disciplinary order of the Alaska Supreme Court en-

joined and declared void. Suit was dismissed for want of

jurisdiction and the Ninth Circuit affirmed, saying:

9

‘Language in Theerd v. United States, 354 U.S. 278,

281, 77 S. Ct. 1274, 1 L. Fd. 24 1342 (1957), and

holdings in Gately v. Sutton, 310 f°. 2d 107, 108 (10th

Cir. 1962); Jones v. Hulse, 391 F. 2d 198, 202 (8th

Cir. 1968); and Lenske v. Sercombe, 266 F. Supp. 609,

612 (D. Ore. 1967), support the rule that orders of a

state court relating to the admission, discipline, and

disharment of members of its bar may be reviewed

only by the Supreme Court of the United States on

certiorari to the State court, and not by means of an

original action in a lower federal court. The rule

serves substantial policy interests arising from the

historic relationship between the state and federal

judicial systems. We are persuaded that it is sound.’’

412 F. 2d at 846. (Emphasis added.)

In Jones v. Hulse, 391 F. 24 198 (8th Cir. 1968), an action

was filed in the United States District Court to enjoin the

enforcement of a Missouri Supreme Court mandate sus-

pending an attorney’s license to practice law. The District

Court dismissed for lack of jurisdiction and the Court of

Appeals affirmed. In reaching its decision, the Eighth Cir-

cuit said:

‘‘Irrespective of how appellant labels his lawsuit, we

are convinced that his action is tantamount to an ap-

peal or a petition to review the propriety of the state

court order.

The pronouncement of the Supreme Court in Rooker

v. Fidelity Trust Company, 263 U.S. 413, 44 S. Ct.

149, 68 L. Ed. 362 (1923), is apropos here:

‘If the constitutional questions stated in the * * *

[complaint] actually arose in the cause, it was the

province and duty of the state courts to decide them;

and their decision, whether right or wrong, was an

exercise of jurisdiction. If the decision was wrong,

that did not make the judgment void, but merely left

it open to reversa! ur modification in an appropriate

and timely appellate proceeding. Unless and until so

10

reversed or modified, it would be an effective and

conclusive adjudication. [Citation omitted.) Under

the legislation of Congress, no court of the United

States other than this Court could entertain a pro-

ceeding to reverse or modify the judgment for errors

of that character. * * * To do so would be an exer-

cise of appellate jurisdiction. The jurisdiction pos-

sessed by the District Courts is strictly original.’ 263

U.S. at 415-416, 44S. Ct. at 150.

* > bl

All we are required to decide is whether on this record

appellant is entitled to invoke the original jurisdic-

tion of the federal courts for the purpose of obtaining

an adjudication as to the validity of the judgment of

the Missouri Court. We are fully convinced that no

grounds exist for federal jurisdiction and that the

order of dismissal was proper.’’ 391 F. 2d at 202.

Mr. Justice Frankfurter, in his concurring opinion in

Schware v. Board of Bar Examiners of the State of New

Mexico, 353 U.S. 232, 77 S. Ct. 752 (1957), articulated the

policy considerations underlying federal jurisdiction to

review state court orders relating to admission to the

practice of law:

‘* Admission to practice in a State and before its courts

necessarily belongs to that State. Of course, legisla-

tion laying down general conditions of an arbitrary or

discriminatory character may, like other legislation,

fall afoul of the Fourteenth Amendment. ... A very

different question is presented when this Court is

asked to review the exercise of judgment in refusing

admission to the bar in an individual case, such as we

have here.

It is beyond this Court’s function to act as overseer

of a particular result of the procedure established by

a particular State for admission to its bar.’’ 353 U.S.

at 248.

1]

Respondent herein seeks the same result in both the Illi-

nois Supreme Court and District Court, to-wit, his own

admission to practice without examination. It is the denial

of that admission that he continues to litigate by an ori-

ginal action in the district court. Respondent has brought

suit individually and not as a class representative. The

complaint does not purport to be a class action and re-

spondent has made no effort to comply with Rule 23, Fed.

R. Civ. P. It is clear that plaintiff attacks Supreme Court

Rule 705(d) only as applied to the facts in his own case

by the Illinois Supreme Court.

Most recently, in Richardson et al. v. McFadden et al.,

No. 73-2512, ——F. 2d—— (4th Cir., Oct. 12, 1977), copy

of which is attached hereto as Appendix D, involving the

efforts of individual applicants to achieve bar admission,

the concurring opinions of the Fourth Circuit review the

applicable case decisions throughout the conntry an!

similarly reach a conclusion which is contrary to the

Seventh Circuit :

‘Settled precedents, I believe, support my views re-

garding the district court’s lack of subject matter ju-

risdiction.”” (App. D5)

Thus, the judgment and opinion of the Seventh Circuit

finding subject matter jurisdiction to exist in the district

court is in conflict with the decisions of other courts of

appeal and applicable decisions of the Supreme Court.

fF

SOUND PRINCIPLES OF “EQUITY, AMITY AND FED-

ERALISM” PRECLUDE AN EXERCISE OF ORIGI-

NAL JURISDICTION BY THE DISTRICT COURT.

The legal posture of the case at bar is remarkably sim-

ilar to Juidice v. Vail, 430 U.S.——, 97 S. Ct. 1211, 1214,

1218 (March 22, 1977). In Juidice, after State civil collec-

12

tion proceedings, a judgment debtor filed suit in the dis-

trict court raising for the first time Fourteenth Amend-

ment arguments to challenge the State law.

In reversing a three judge district court which had cer-

tified a class, declared the State statute unconstitutional

and permanently enjoined its enforcement, the United

States Supreme Court held:

‘‘As they never appeared in the New York courts,

they obviously did not raise these consti itional claims

in the state court proceedings. The contentions made

before the District Court, however, could have been

raised by appellees in the state courts, as a defense

to the ongoing proceedings. Had the county court

ruled against these contentions, appellees could have

appealed them to the Appellate Term of the Supreme

Court. They chose, by resorting to the federal courts,

not to avail themselves of this forum afforded them

by the State of New York. We must decide whether,

with the existence of an available forum for raising

constitutional issues in a state judicial proceeding, the

United States District Court could properly entertain

appellees’ $1983 action in light of our decisions in

Younger v. Harris, 401 U.S. 37, 91S. Ct. 746, 27 L. Ed.

2d 669 (1971), and Huffman v. Pursue, Ltd., 420 U.S.

592, 95 S. Ct. 1200, 48 L. Ed. 2d 482 (1975). We hold

that it could not.

. 7 *

We now hold, however, that the principles of Young-

er and Huffman are not confined solely to the types

of state actions which were sought to be enjoined in

those eases. As we emphasized in Huffman, the ‘more

vital consideration’ behind the Younder doctrine of

nonintervention lay not in the fact that the stale erim-

inal process was involved, but rather in

‘the notion of ‘‘comity,’’ that is, a proper respect

for state functions, a recognition of the fact that

the entire country is made up of a Union of sepa-

rate state governments, and a continuance of the

13

belief that the National Government will fare best

if the States and their institutions are left free

to perform their separate functions in their sepa-

rate ways.’ Huffman, supra, at 601, 95 S. Ct., at

1206, quoting Younger, supra, 401 U.S. at 44, 91

S. Ct. at 750,

* * «

Here it is abundantly clear that appellees had an

opportunity to present their federal claims in the

State proceedinug. No more is required to invoke

Younger abstention.’’ (Emphasis added.)

Neither respondent nor the Seventh Circuit opinion

deny that constitutional claims cculd have been raised

and adjudicated in the proceedings before the Illinois Su-

preme Court. Admittedly, respondent has had one bite at

the apple. He now seeks to relitigate his afterthoughts by

a second action in a fresh forum, and thus to collaterally

review and overturn the order of the State court which

denied him admission to the bar without examination.*

The well established rule against such bifureated pro.

ceedings has added compulsion when considerations of

‘‘equity, comity, and federalism’’ coexist as they do in mat-

ters of bar admission.

CONCLUSION

Respondent originally petitioned the Illinois Supreme

Court to be admitted to the Illinois Bar upon foreign

license and without the requirement that he satisfactorily

pass a written bar examination.

The state court petition of respondent was denied by the

Illinois Supreme Court.

*Plaintiff still is not precluded from retaking the Illi-

nois bar examination to demonstrate qualification for ad-

mission, as provided in Rule 704.

14

Respondent failed to seek or perfect review of the deci-

sion of the [Illinois Supreme Court in the United States

Supreme Court.

Respondent has attempted to collaterally attack and

overturn the decision of the Illinois Supreme Court by an

original action in the federal district court.

The district court lacks subject matter jurisdiction.

The decision of the Seventh Circuit Court of Appeals

reversing dismissal by the district court is .n conflict with

the decisions of other courts of appeals and applicable

decisions of the United States Supreme Court on the same

matter.

WHEREFORE, Petitioners pray that a writ of certio-

rari issue to review the judgment and opinion of the

United States Court of Appeals for the Seventh Circuit

entered on March 23, 1977 as supplemented on August 15,

1977.

Respectfully submitted,

WiuuiaM J. Scort,

Attorney General of Illinois,

160 N. LaSalle Street,

Chicago, Illinois 60601,

Attorney for Petitioners.

Hersert Lee CAPLAN,

Assistant Attorney General,

(312) 793-3813

Of Counsel.

Al

No. 76-1623

BASIL D. KTSANES,

Plaintiff-Appellant,

Vs.

HONORABLE ROBERT C. UNDERWOOD, et al.,

Defendants-Appellees.

Apeal from the United States District Court

for the Northern District of Illinois,

Eastern Division.

No. 75 C 3421

Joseph Sam Perry, Judge.

Argued December 2, 1976 — Decided March 23, 1977

Before FAIRCHILD, Chief Judge, HASTINGS, Senior

Circuit Judge, and SWYGERT, Circuit Judge.

SWYGERT, Circuit Judge. Rule 705 of the Illinois

Supreme Court (Smith-Hurd Ill. Ann. Stats. Ch. 110A

§ 705) provides that an attorney who has resided and

practiced law in another state for five years may, upon

passing a character and fitness test, be admitted to the

1. Senior Circuit Judge John S. Hastings heard oral

argument and participated in the conference of the court,

but died before this opinion was submitted to him for

approval.

A2

bar of Illinois.? The rule further provides that an other-

wise qualified attorney who has practiced in another state

2. Illinois Supreme Court Rule 705 provides in part:

(a) Any person who has been admitted to practice

in the highest court of law in any other State or ter-

ritory of the United States or the District of Colum-

bia, or admitted to practice as an attorney (or the

equivalent) in another country whose jurisprudence

is based upon the principles of the English common

law, may make application to the Board of Law Ex-

aminers for admission to the bar without examination

upon the following conditions:

(1) The educational qualifications of the appli-

cant are such as would entitle him to write the bar

examination in this State at the time he seeks ad-

mission; and he has resided and actively and con-

tinuously practiced law in such other jurisdiction

for at least three years within the period of five

years immediately prior to making application in

Illinois.

(2) Any person who is unable to meet the require-

ments set forth above in (1) may be admitted to the

bar of Illinois without examination if he has ac-

tively and continuously practiced law in such other

jurisdiction for a period of at least five years

within the period of seven years immediately prior

to making application in Illinois.

(c) In the event the Board of Law Examiners shall

find that such aplicant meets the requirements of this

rule and has received from the Committee on Char-

acter and Fitness its certification of good moral char-

acter and general fitness to practice law, the board

shall certify to the court that such applicant is quali

fied for admission.

A3

is ineligible to apply for admission if that attorney has

previously taken and failed an Tllinois bar examination."

This appeal presents two issues: (1) whether the Illi-

nois Supreme Court’s denial of plaintiff-appellant’s peti-

tion for waiver of Rule 705(d) and admission to the bar

of Illinois on foreign license is a judicial proceeding di-

rectly reviewable by the United States Supreme Court,

thus rendering the district court without jurisdiction to

consider an attack on that denial; and if not, (2) whether

the plaintiff-appellant presented a substantial federal

question requiring the convening of a three-judge court.

We hold that the petition for waiver of Rule 705(d) and

its denial did not constitute a judicial proceeding appeal-

able to the United States Supreme Court. We further hold

that a substantial federal question exists which requires

the consideration of a three-judge court.’

Plaintiff Basil D. Ktsanes brought this action against

the Justices of the Illinois Supreme Court and the mem-

bers of the State Board of Law Examiners pursuant to 42

U.S.C. § 1983. Plaintiff requested the convening of a three-

judge court under 28 U.S.C. § 2281 for a declaration that

Rule 705(d) of the Supreme Court of Illinois is void and

unenforceable, and for an injunction against enforcement

3. Rule 705(d) provides:

An applicant who has taken and failed to pass the

bar examination in Illinois shall not be eligible to ap-

ply for admission on foreign license.

4. Because this action in the district court was com-

menced before August 12, 1976, the applicability of 28

U.S.C. § 2281 is not affected by the repeal of that statute

by Pub. L. No. 94-381 [S. 537]; August 12, 1976; 90 Stat.

1119.

A4

of the rule by defendants. The plaintiff alleged that Rule

705(d) violates the Equal Protection Clause of the Four-

teenth Amendment.

The district court granted deefndants’ motion to dismiss,

refusing to convene a three-judge court. This appeal fol-

lowed.

Plaintiff was born in Illinois and resided there until he

went to Louisville, Kentucky to attend law school. He

graduated in June 1967 and returned to Illinois where he

took the Illinois bar examination in July and failed to

pass. When he could not find satisfactory employment in

Illinois, plaintiff returned to Louisville where he found a

position with the Jefferson County Attorney’s office.

In July 1968 the plaintiff passed the Kentucky bar ex-

amination and was appointed as assistant county attorney.

In April 1969 he accepted a position as legal assistant to

the Governor of Kentucky in the Department of Finance,

and in August 1970 was promoted to deputy finance com-

missioner. He also served as an assistant commonwealth

attorney.

A reciprocity agreement permitting admission on foreign

license exists between Illinois and Kentucky. Plaintiff re-

quested an application from the Illinois State Board of

Law Examiners; it was denied under Rule 705(d) _ be-

cause he had previously failed the Illinois bar examination.

He then petitioned the Justices of the Illinois Supreme

Court for an exemption from the rule. The petition was

denied in March 1975. Ktsanes subsequently filed this ac-

tion in federal court under section 1983.

The threshold issue is whether there was jurisdiction to

hear a constitutional challenge to Rule 705(d) in the district

court. If jurisdiction exists, we must decide whether the

issues present a substantial federal question, necessary in

order to convene a three-judge court.

A5

I

The Attorney General of the State of [linois on behalf

of the defendants argue that there is no jurisdiction to

hear this case because it amounts to a review of a deci-

sion of the [llinois Supreme Court by a federal district

court. Proper procedure, he contends, would have been

an appeal from the Illinois court directly to the Supreme

Court of the United States under 28 U.S.C. § 1257. We

do not agree.

The United States Supreme Court in a previous challenge

to the right of the Illinois Supreme Court to exclude a per-

son from the bar of that state considered the requirement

of a case or controversy under Article III of the federal

Constitution. Jn re Summers, 325 U.S. 561 (1945). In that

case the plaintiff. a conscientious objector, had been ex-

cluded from the bar because he would not take the required

oath to support the constitution of Illinois. He alleged that

the exclusion was in violation of the Due Process clause of

the Fourteenth Amendment based upon First Amendment

freedom of religion grounds. Summers had completed all

the prerequisites for admission to the bar except that the

committee on cliaracter and fitness had not certified him.

He filed a petition for admission in the Illinois Supreme

Court, alleging that he had been refused the certificate

because he was a conscientious objector and that this was

in violation of the Fourteenth Amendment. The petition

was denied. In the United States Supreme Court, the de-

fendants, the Justices of the Illinois Supreme Court, argued

that the constitutional issue raised could not be considered

because there was no case or controversy and the Supreme

Court, therefore, lacked jurisdiction. The Court held, how-

ever, that a true controversy did exist. The standard used

in this determination is necessarily a federal one arising

A6

from the requirement in Article III, § 2, Cl. 1 of the Con-

stitution.® Jn re Summers, supra at 566; Nashville, C. & St.

L. Ry. Co. v. Wallace, 288 U.S. 249, 259 (1933). The ques-

tion must have assumed ‘‘such a form that the judicial

power is capable of acting on it,’’ In re Summers, supra at

567; Osborn v. Bank, 22 U.S. (9 Wheat.) 738, 819 (1824),

and be more than a ‘‘desire for an abstract declaration of

the law.’’ Jn re Summers, supra at 567; Fairchild v. Hughes,

258 U.S. 126, 129 (1922); Muskrat vy. United States, 219

U.S. 346, 361 (1911). Although the proceedings in Summers

were informal and had not been treated as judicial by the

Illinois Supreme Court, that court had considered the peti-

tion on its merits and rejected it. The Supreme Court of

the United States found this treatment had developed the

issue sufficiently to make the proceeding adversary.

In the instant case we have exactly the opposite set of

circumstances. When Ktsanes petitioned the Illinois court,

the petition was merely one for exemption from the rule,

not a challenge of it. There was no ‘‘claim of a present

5. Article ITT, § 2, Cl. 1 of the Constitution reads:

The judicial Power shall extend to all Cases, in Law an

Equity, arising under this Constitution, the Laws of the

United States, and Treaties made, or which shall be made,

under their Authority ;—to all Cases affecting Ambassa-

dors, other public Ministers and Consuls ;—to all Cases

of admiralty and maritime Jurisdiction;—to Contro-

versies to which the United States shall be a Party;—to

(‘ontroversies between two or more States;—between a

State and Citizens of another State;—between Citizens

of different States ;—between Citizens of the same State

claiming Lands under grants of different States, and

between a State, or the Citizens thereof, and foreign

States, Citizens or Subjects.

A7

right to admission to the bar of a state and a denial of that

right’’ which the Summers Court held to create a case or

controversy under Article III. Summers, supra at 568.

Ktsanes never argued the question of the validity of Rule

705(d) before the Illinois Supreme Court. He was asking

for ministerial action, not judicial determination. The de-

nial of his petition was made by the court acting in an ad-

ministrative capacity. See Law Students Research Council

v. Wadmond, 401 U.S. 154, 158 n. 9 (1971); Lathrops vy.

Donohue, 367 U.S. 820, 827 (1961). That denial did not

present a case or controversy cognizable by an Article III

court, and, thus, was not appealable to the Supreme Court

of the United States.

The constitutional questions raised by this case were

first asserted in the district court; the equal protection

issue had nowhere before been litigated. The cases cited

by the Attorney General for the proposition that deter-

minations of state courts are appealable only to the United

States Supreme Court are inapposite here. Jn re Summers,

supra; Cromwell v. County of Sac, 94 U.S. 351 (1876);

Cheramie v. Tucker, 492 F. 2d 586 (5th Cir. 1974). Those

eases involve instances in which the issues were fully de-

veloped or in which adversary proceedings had been held.

Unlike the instant case, they were appealable to the Su-

preme Court because they presented cases or controversies

within the meaning of Article ITI.

Defendants present several cases to support their con-

tention that a lower federal court can not hear a challenge

to the denial of admission to a state bar. Doe v. Pringle,

No. 75-1875 (10th Cir., Sept. 24, 1976); Feldman vy. State

Board of Law Examiners, 438 F. 2d 699 (8th Cir. 1971);

MacKay v. Nesbitt, 412 F. 2d 699 (9th Cir. 1969) ; Jones v.

Hulse, 391 F. 2d 198 (8th Cir. 1968). They point to the

language in these cases which states, in effect, that admis-

A8

sion, discipline, and disbarment of members of a state bar

are matters for the state courts, and that federal district

courts do not sit as courts on appeal on such matters. This

language is generally true; however, the Supreme Court

commented in Schware v. Board of Bar Examiners of the

State of New Mevico, 353 U.S. 232 (1957) :

Admission to practice in a State and before its

courts necessarily belongs to that State. Of course,

legislation laying down general conditions of an ar-

bitrary or discriminatory character may, like other

legislation, fall afoul of the Fourteenth Amendment.

393 U.S. at 248.

This is just such a case, in which the rule ‘‘laying down

general conditions’’ is claimed to be discriminatory.

Il

Since jurisdiction did exist in the federal district court,

we must next determine whether a three-judge court is

necessary to hear the case. Defendants argue that no sub-

stantial federal question is raised by plaintiff’s constitu-

tional challenge to Rule 705(d). The Supreme Court has

held that in order to defeat a motion for a three-judge

court on this ground, the constitutional attack must be ‘‘in-

substantial,’’ Goosby v. Osser, 409 U.S. 512, 518 (1973),

and that this equates with ‘essentially fictitious,’’ Bailey

v. Patterson, 369 U.S. 31, 33 (1962), ‘‘obviously frivolous,’’

Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288

(1910), of ‘‘obviously without merit,’’ Ex parte Poresky,

290 U.S. 30, 32 (1933). Thus, in effect, a claim is insubstan-

tial ‘‘only if the prior decisions inescapably render the

claims frivolous,’’ and not merely doubtful. Goosby v.

Osser, supra at 518.

There appears to be no Supreme Court case or cases

from this cireuit which would obviously control the result

A9

in this appeal. Defendants’ argument on this issue is two-

fold: (1) the Supreme Court has decided that different

classes of individuals may be treated differently, and this

case involves such classes; and (2) this is merely a case of

‘incidental individual inequality,’’ the kind of case which

the Court has held to be not a violation of equal protection.

In addressing defendants’ first contention, we note that

this is indeed a case involving two different classes. To ob-

serve this, however, is not the answer. What is important

when a classification is challenged on equal protection

grounds is whether there is a rational connection between

that classification and some legitimate state interest. This

determination goes to the very merits of the claim, and we

have not found any controlling decision so as to be able to

say that the claim is obviously frivolous. The only case

which appears to be on point is Application of Brewer,

430 P. 2d 150 (Alas. 1967). That state case does not control

this court on the issue of whether a substantial federal

question has been raised however persuasive it may be in

the final outcome.

We also find defendants’ second contention to be with-

out merit. This matter cannot be characterized as one of

merely ‘‘incidental individual inequality.’’ That phrase is

taken from the case of Phelps v. Board of Education, 300

U.S. 319 (1937), and has been explained by this court to

mean that ‘‘the question of whether a classification passes

constitutional muster cannot be answered by assessing its

chance effect upon a particular individual.’’ Whitfield v.

Illinois Board of Law Examiners, 504 F. 2d 474, 476 (7th

Cir. 1974). In Whitfield the plaintiff claimed that the Illinois

bar examination had no connection with an applicant’s fit-

ness or capacity to practice law. His claim was based on

the fact that he had failed to pass the bar examination after

taking it five times, although he alleged his background

A10

demonstrated his capability to practice. This court assumed

argquendo that his background so demonstrated, but found

that it was a ease of incidental individual inequality, and

that the bar examination, in general, was rationally con-

nected to an applicant’s capabilities.

The instant case is distinguishable. Plaintiff disputes any

rational connection between the fact that one has previously

failed the Illinois examination and that person's ability to

practice law in Illinois when that person meets the same

criteria as an attorney who may be admitted on a foreign

license but who has never taken the examination. His claim

is not based on the fact that the challenged classification

works an inequality in his individual case. Rather, he chal-

lenges the rationality of the connection between that classi-

“cation aad the state interest it purportedly serves. We

vcannot decide whether plaintiff’s situation is merely an

isolated case of inequality without passing on the merits

of his claim. Consequently, that question is reserved for

tue cai court upon a full consideration of the issue.

We conclude that a substantial federal question exists

and that a three-judge court should be convened to hear

this matter.

The decision of the district court is reversed.

A true Copy:

Teste:

Appeals for the Seventh Circuit

oS on oe

Bl

APPENDIX B

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 76-1623

BASIL D. KTSANES,

Plaintiff -Appellant,

v.

HONORABLE ROBERT C. UNDERWOOD, et al.,

Defendants-A ppellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 75-C-3421—Joseph Sam Perry, Judge.

On Petition for Rehearing.

Avevst 15, 1977

PER CURIAM. The petition for rehearing filed by the

Attorney General of the State of Illinois on behalf of the

defendants-appellees interprets the court’s opinion, which

is published at 552 F. 2d 740, in a manner not intended. So

as to correct any misunderstanding as to the scope of our

decision, we believe the following explanation is appropri-

ate.

In his complaint, Ktsanes requested that a three-judge

court be convened to hear his constitutional claim. A single

district judge may properly dismiss a complaint in which

B2

a three-judge court is requested if he concludes that the

federal courts lack jurisdiction to hear the case. Ex Parte

Poresky, 290 U.S. 30 (1933). The district court did hold

that it did not have jurisdiction over Ktsanes’ complaint.

It did so, however, on the grounds that: (1) there is no

federal jurisdiction to review a ‘‘final decision of the Illi-

nois Supreme Court relating to admission to its bar’’;

and (2) the Illinois rule did not violate the Equal Protec-

tion Clause. This court concluded that the issues which

the district court decided, while purportedly jurisdictional,

were so bound up with the merits that they should not have

been reached by a single judge if the case otherwise met

the requirements for the convening of a three-judge district

court.

This court then proceeded to determine whether there

were any purely jurisdictional bars to federal considera-

tion of the ease. In doing so, it decided only two issues.

First, it concluded that defendants’ denial of plaintiff’s

request for an exemption from Rule 705(d) of the Supreme

Court of Illinois was purely an administrative act and did

not qualify as a ‘‘case or controversy’’ under Article III

of the Constitution so as to render it directly appealable to

the Supreme Court of the United States. Thus, there existed

no jurisdictional bar under the doctrines of res judicata

or collateral estoppel to federal ccnsideration of plaintiff’s

constitutional claims because plaintiff’s action was not a

collaterdt attack upon a judicial decision rendered by the

Illinois Supreme Court.”

Second, this court decided that the claim presented a

substantial federal question sufficient to warrant both fed-

eral jurisdiction and the convening of a three-judge district

court under 28 U.S.C. § 2281.

“Compare Grossgold v. Supreme Court of Illinois,

F. 2d (7th Cir. 1977).

B3

Because we concluded that a three-judge court was re-

quired, we did not, contrary to the Attorney General’s as-

sertion, decide the merits of the case. A three-judge court

must still determine: (1) whether on grounds of comity

and federalism a federal court is precluded from review-

ing the State of Illinois’ rejection of an applicant for the

Illinois bar, and (2) if not, whether the Illinois rule chal-

lenged by Ktsanes violates the Equal Protection Clause.

Thus, the scope of the court’s decision was far narrower

than the State contends.

Accordingly, we reaffirm our previous holding and deny

the petition for rehearing.

A true Copy:

Teste:

. BeRERREARABOMREBAEoERERBRAR BRA RRR RRP AA RARE B

Clerk of the United States Court of

Appeals for the Seventh Circutt

aE

oO me

SE OS A A TE ST

Be OO. ee ee ie es

ae

— ee ae

— ape eee ee

Cl

UNITED STATES DISTRICT COURT,

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Name of Presiding Judge, Honorable Joseph Sam Perry.

Cause No.: 75 C 3421 Date: April 20, 1976

Title of Cause: Basil D. Ktsanes v. Hon. Robert C. Under-

wood, et al.

This cause comes on upon defendants’ motion to dismiss

the complaint. The court has read and considered said mo-

tion and the memoranda of the respective parties in sup-

port thereof and in opposition thereto and finds that said

motion should be granted on the grounds that this court

lacks jurisdiction to review a final decision of the Illinois

Supreme Court relating to admission to its Bar. see Mac

Kay v. Nesbett, 412 F. 2d 846 (9th Cir. 1969), cert. denied,

396 U.S. 960, reh. denied, 397 U.S. 1004, and that there is a

rational connection between Rule 705(d) of said court and

plaintiff’s fitness or capacity to practice law in that the

rule precludes pe? ons who have taken and failed to pass

the Illinois bar examination from using subsequent bar ad-

mission in a State with less rigorous requirements as a

subterfuge to avoid the more rigorous requirements of the

Illinois bar examination. See Application of Brewer, 430

P. 2d 150 (Alaska 1967). In the court’s view, discussion of

other grounds relied upon by the plaintiff is pretermitted.

Accordingly IT IS ORDERED that said motion to dis-

miss the complaint be and it is hereby granted, and that

the complaint herein be and it is hereby DISMISSED with

prejudice.

J. S. PERRY.

~~ wal

D1

UNITED STATES COURT OF APPHALS

FOR THE FOURTH CIRCUIT

No. 73-2512

David Richardson, Patricia King ,Patrick Kelly and Hiram

Spain, on behalf of themselves and all others similarly

situated,

Appellants,

Vv.

J. Means McFadden, Morris D. Rosen, C. W. F. Spencer,

Robert D. Schumpert, David L. Freeman and Albert L.

James, Jr., individually and as members of the State

Board of Law Examiners: and Miss Frances Smith, Clerk

of the Supreme Court of South Carolina,

Appellees.

No. 73-2513

David Richardson, Patricia King, Patrick Kelly and Hiram

Spain, on behalf of themselves and all others similarly

situated,

Appellees,

J. Means McFadden, Morris D. Rosen, C. W. F. Spencer,

Robert D. Schumpert, David L. Freeman and Albert L.

James, Jr., individually and as members of the State

Board of Law Examiners: and Miss Frances Smith, Clerk

of the Supreme Court of South Carolina,

Appellants.

D2

Appeals from the United States District Court for the

District of South Carolina, at Charleston. Sol Blatt, Jr.,

District Judge.

Reargued Mareh 15, 1977 Decided October 12, 1977

Before HAYNSWORTH, Chief Judge, BOREMAN, Senior

Cireuit Judge, WINTER, CRAVEN,* BUTZNER, RUS-

SELL, WIDENER, and HALL, Cireuit Judges, sitting

in bane on resubmission.

Ray P. McClain and F. Henderson Moore (Laughlin Me-

Donald, Neil Bradley, Melvin L. Wulf, E. Richard Lar-

son on brief) for Appellants in 73-2512 and for Appellees

in 73-2513; Randall T. Bell (Daniel R. MeLeod, Attorney

General of South Carolina and A. Camden Lewis, Assist-

ant Attorney General of South Carolina on brief) for

Appellees in 73-2512 and for Appellants in 73-2513.

PER CURIAM:

We granted rehearing in bane to reconsider the issues

decided by a panel of the court in Richardson v. McFadden,

O40 F. 2d 744 (4 Cir. 1976). There, in an action for declara-

tory and injunctive relief brought by four black law

school graduates who had satisfied all requirements for

admission to the South Carolina Bar, except that they re-

ceived failing seores on the bar examination, the panel

decided that the district court properly denied relief ex-

cept for the individual claims of Spain and Kelly. With

respect to them, the panel concluded that the Law Exam-

iners had acted arbitrarily and capriciously, and it directed

the district court to order them to be certified as having

passed the South Carolina Bar.

“Judge Craven died before this opinion was prepared.

D3

I

Except with respect to the individual claims of Spain

and Kelly, we see no merit in plaintiffs’ various conten-

tions for the reasons assigned by the panel.

II

With regard to the individual claims of Spain and Kelly,

we conclude, in disagreement with the panel, that the dis-

trict court correctly denied relief.

At the outset, we recognize that a jurisdictional ques-

tion is raised by the assertion of individual claims for re-

lief by Spain and Kelly, i.e., whether, in judging the intel-

lectual fitness of applicants to practice law, the Law Ex-

aminers performed a judicial function on behalf of the

South Carolina Supreme Court, so that under such preced-

ents as Doe v. Pringle, 550 F. 2d 596 (10 Cir. 1976), cert.

denicd, —— U.S. —-— (1977), and McKay v. Nesbett, 412

F. 2d 846 (9 Cir. 1969), cert. denied, 396 U.S. 960 (1969),

we should conclude that the district court lacked subject

matter jurisdiction to review the denial of admission to the

bar. We are divided on how this issue should be decided,

but we find it unnecessary to debate or resolve our differ-

ences because a clear majority of us agrees that, even if

the district court had subject matter jurisdiction, the proof

will not support the conclusion that Spain and Kelly are

entitled to individual relief.

Their claim to relief is founded upon due precess and

equal protection claims. Before turning to the factual basis

of their claims, we stress that our function is not just to

determine if the bar examiners made a mistake in one or

more individual cases; it is to determine if there has been

a denial of due process or of equal protection. Not every

erroneous determination mounts up to a denial of due

process or equal protection. Bishop v. Wood, 426 U.S.

341, 349-50 (1976).

D4

Factually, Kelly and Spain showed that other applicants

at other times appeared to have received more favorable

treatment in grading than that which was afforded them.

See table at 540 F. 2d at 750. Specifically, Spain, who was

a June, 1971, applicant having an average score of 70.5

and having heen failed by three examiners, points to appli-

eant 129, a June, 1970, applicant having an average score

of 71.8 and also having been failed by three examiners, who

Was passed. Kelly, who was a February, 1971, applicant

having an average score of 69.6 and having been failed by

three examiners, points to applicant 10, also a February,

1971, applicant who was passed with an average score of

69.5 but who was failed by only two examiners.

We do not think this proof establishes the constitutional

discrimination requisite to the granting of individual re-

lief. In the case of Spain, the comparison urged on us is of

different years. While the mere fact of different vears does

not nmiake the comparison inapposite, all of the circum-

stances which make the two instances comparable were not

shown. Moreover, the record does not show that in grading

Spain the examiners had before them the record of what

had been done the year before. In the case of Kelly, the

fact that he was failed by three examiners serves to dis-

tinguish his case from the asserted analogue where the

applicant was failed by only two examiners. The further

fact that a February, 1970, applicant (No. 17) was failed

with an average of 69.5 after having been failed by only

two examiners does not destroy the distinction. Although

it occurred in a different examination from the one about

which Kelly complains, it may show discrimination with

reference to 17; but Kelly can hardly advance his cause as

a result of a possible due process violations to another.

Significant also, with respect to Spain and Kelly, are the

facts that of the aggregate 828 examinations given during

SEES Re Aen NF et cb te nt ad nel

D5

the eight times that the bar examination was administered

over a four-year period, only these two examples of al-

leged discrimination were proved, and that Spain and

Kelly continued to fail on subsequent reexaminations. Suc-

cinctly stated, we simply do not think that Spain and

Kelly proved their case.

Since we conclude that the. was no error in the judg-

ment of the district court on any of the grounds asserted,

its judgment is

AFFIRMED.

HALL, Circuit Judge, concurring in the result:

While I concur in the result reached in this case, I do so

because I believe that the district court was without sub-

ject matter jurisdiction to review the questions relating to

the individual admissions to the bar of Spain and Kelly.

Settled precedents, I believe, support my views regarding

the district court’s lack of subject matter jurisdiction.

In South Carolina, the exclusive jurisdiction to pass

upon the qualifications of applicants is vested in the South

Carolina Supreme Court by both the state constitution and

by statute. S. C. CONST. art. V, § 4; S.C. CODE § 56-96.

By administering the bar examination and judging the in-

tellectual fitness of applicants to practice law, the Law

Examiners perform a judicial function on behalf of the

South Carolina Supreme Court.’ The South Carolina Su-

1. See Deposition of J. Means McFadden, App. at 428-

29:

Well we [Law Examiners] are subject to the control of

the Supreme Court, and we take no action of an affirma-

tive nature without first conferring with the Supreme

Court and getting their approval of it. * * * [W]e are

subject to their supervision in every thing we do. But to

the extent that we have to formulate questions, give the

D6

examination, grade the papers, yes, we have to do that

on an individual basis. There is no other way we can do

it. LHowever, before any changes were made in the

scheme of the examination], we got the approval of the

Supreme Court before we ever put in changes.

preme Court thus exercises judicial power within the scope

of its subject matter and personal jurisdiction when it acts

upon the admission of applicants to the state bar. And while

that court is not required to admit an applicant to the

South Carolina Bar simply because the Bar Examiners

have certified that he has passed the bar examination,’

nevertheless the failure to obtain such a certification does

preclude admittance to the bar.

Many states have statutorily established a formal pro-

cedure for petitioning the states’ highest court for review

of an adverse determination by a board of bar examiners

who failed to certify that an applicant has passed a bar

examination. A statutory provision such as this did not

exist in South Carolina during the time relevant to this

case; however, petitions by aggrieved bar applicants had

been made to and considered by the South Carolina Su-

preme Court.* Final action on an application to the state

2. However, the record does not reflect any instance

when the Sonth Carolina Supreme Court refused to follow

the recommendations of its Law Examiners in admitting

applicants to the bar.

3. After instituion of this suit, the South Carolina Su-

preme Court voluntarily did establish by rule procedures

for the review of failing papers. See Rule 11, RULES FOR

THE EXAMINATION AND ADMISSION OF PERSONS

TO PRACTICE LAW IN SOUTH CAROLINA (effec-

tive date—February 10, 1975).

— meee ene

D7

bar is by the South Carolina Supreme Court, whether the

action taken is expressed or implied ;* and review from an

adverse «lecision is secured by petitioning the Supreme

Court of the United States for certiorari. Schware v.

Board of Bar Examiners of New Merico, 353 U.S. 232

(1957); Konigsberg v. State Bar of California, 353 U.S.

252 (1957); Theard yv. United States, 354 U.S. 278 (1957).

Three circuits are in accord. See Doe v. Pringle, 550 F. 2d

596 (10th Cir. 1976), cert. denied, US. , 97S. Ct.

2179 (1977); Feldman v. State Board of Law Examiners,

438 F. 2d 699 (8th Cir. 1971); MacKay v. Nesbett, 412 F. 2d

846 (9th Cir. 1969), cert. denied, 396 U.S. 960 (1969);

Gately v. Sutton, 310 F. 2d 107 (10th Cir. 1962).

The United States Court of Appeals for the Tenth Cir-

cuit has recently considered this particular jurisdictional

issue in Doe v. Pringle, supra. There, a frustrated bar ap-

4. See American Civil Liberties Union v. Bozardt, 539

F. 2d 340 (4th Cir. 1976), cert. denied, 97 S. Ct. 639 (1976),

where a final (appealable) state adjudication of a disciplin.

ary proceeding was said not to occur until it could be

demonstrated that the South Carolina Supreme Court either

expressly decided the question or acquiesced in the decision

of the Board of Commissioners on Grievances and Dis-

cipline of the South Carolina Bar.

The fictitious ‘‘Jane Koe’’ in Bozardt, in reality Ms.

Edna Smith, subsequently did seek a direct review of the

private reprimand administered by the Board of Commis-

sioners on Grievances and Discipline. The Supreme Court

of South Carolina reviewed the case but ordered a public

reprimand. Matter of Smith, 233 S.E. 2d 301, 306 (S.C.

1977).

An appeal to the Supreme Court of the United States

was then filed. In Re Smith, No. 77-56; 46 U.S.L.W. 3041.

It is currently pending.

D8

plicant had brought a civil rights action challenging the

state supreme court’s denial of his aplication for admis-

sion to the bar, despite a favorable recommendation of the

bar committee. Upholding the district court’s dismissal of

the action, the Tenth Circuit ruled that a federal court was

without subject matter jurisdiction to review the denial

of admission to the bar even though plaintiffs’ challenge

was anchored to an alleged deprivation of federally pro-

tected due process and equal protection rights.

Drawing from the district court’s ruling, the Doe court

noted that there is a subtle but fundamental distinction be-

tween two types of claims which a disappointed bar appli-

cant might bring to federal court:

The first is a constitutional challenge to the state’s

general rules and regulations governing admission;

the second is a claim based on constitutional or other

erounds, that the state has unlawfully denied a parti-

eular applicant admission.

Doe, 550 F. 2d at 597.

Thus,

[Wlhile federal courts do exercise jurisdiction over

many constitutional claims which atack the state’s

power to license atorneys involving challenges to either

the rule-making authority or the administration of the

rules [citations omitted], such is not true where re-

riew of a state court’s jurisdiction of a particular ap-

plication is sought. * * * (T]he latter claim may be

heard, if at all, exclusively by the Supreme Court of

the United States. .. . [relying on the ‘Theard Doc-

trine’ announced in Theard v. United States, 354 U.S.

278 (1957)].

Doe, 550 F. 2d at 597.

The Eighth Circuit, in Feldman vy. State Board of Law

Eraminers, 438 F. 2d 699 (8th Cir. 1971) dealt with a

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plaintiff who had twice failed the Arkansas bar exam, who

sued the Board, and others, seeking injunctive relief and

based jurisdiction upon 28 U.S.C. §§ 15343(3) and 1331(a).

He sought to state a claim under 42 U.S.C. § 1983. The

district court initially expressed doubt as to its subject

matter jurisdiction but, dismissed on nonjurisdictional

grounds. The Court of Apeals noted that the suit proerly

could have been dismissed on jurisdictional grounds, 438

F’, 2d at 701, and then noted that:

*s

.. . plaintiff’s remedy if any lies in presenting his

grievance to the Arkansas Supreme Court. If the rul-

ing these is adverse to him, he may aply for certiorari

to the United States Supreme Court in the manner as

was done in Schware, Konigsberg and Theard. As the

trial court proerly stated, it is not an apellate court

and cannot in such a case as this review State court

actions.”’

Feldman, 438 F. 2d at 704.

Finally, in MacKay v. Nesbett, supra, the Ninth Circuit

was faced with a challenge to the action of a majority of

the Justices of the Alaska Supreme Court who had entered

disciplinary orders suspending MacKay from the practice

of law for a period of one year. Relying upon Theard and

Gately, supra, and other precedent in suport of the Theard

doctrine, the court said:

([O]rders of a state court relating to the admission,

discipline, and disbarment of members of its bar may

be reviewed only by the Supreme Court of the United

States on certiorari to the state court and not by means

of an original action in the lower federal court. The

rule serves substantial policy interests arising from

the historic relationship between state judicial systems

and the members of their respective bars, and between

the state and federal judicial systems.

MacKay, 412 F. 2d at 846. Emphasis added.

D10

While we are aware that there is some authority to the

contrary in the Seventh and perhas the Fifth Cireuits,® and

while we are fully appreciative of the desirable goal of

avoidin, if possible, the creation of a conflict among our

sister cireuits, I nevertheless believe we should follow the

teachings of Doe, Feldman and MacKay, and accordingly,

I would hold that the district court should have dismissed

the claims of Spain and Kelly regarding their allegations

of having heen wrongfully deprived of passing grades on

the South Carolina Bar Examination. By failing to admit

Spain and Kelly to the South Carolina Bar, the South

Carolina Supreme Court had acquiesced in the Board of

Law Examiners’ recommendation to not license them. Re-

view of this denal lies exclusively with the Supreme Court

of the United States.

Judge Widener authorizes me to state that he joins in

this opinion.

BOREMAN, Senior Cireuit Judge, concurring specially in

the result:

As a Senior Cireuit Judge I was a member of the panel

of three which considered and decided the apeal. Having

served on that panel I was qualified to participate in the

rehearing in hane which was ordered by the court.

5. See Whitfield v. Illinois Board of Law Examiners,

004 F. 2d 474, 477 (7th Cir. 1974):

Plaintiff, of course, did allege that defendants acted ar-

bitrarily in grading his examination. There may very

well be situations in which a capricious denial by state

officials may give rise to a federal remedy. (dictum).

See also Tyler v. Vickery, 517 F. 2d 1089 (5th Cir. 1975),

cert, denied, 426 U.S. 940 (1976).

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Upon the rehearing in banc I have ben persuaded that

the jurisdictional question raised was not accorded the

serious consideration by the panel to which it was entitled.

From the arguments presented, in briefs and orally, and

upon careful review of the opinions of other highly re-

spected circuit courts of appeals I am convinced that the

federal district court should have dismissed this action for

lack of subject matter jurisdiction.

Therefore, I join Judge Hall in his opinon in which he

concurs in the result and for the reasons as set forth by

him therein.