# Petition — Murphy v. Eagen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1366%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 451 U.S. 910 ## Text " FILED 80-1415 FEB 23 1968 in the Supreme Court of the q Ynjted States October Term, 1980 No. EDWARD M. MURPHY, II, Petitioner Vv. MICHAEL J. EAGEN, Individually and as Justice of the Pennsylvania Supreme Court Who Has Re- "Aa snaps 4 for Administration of Admissions to the Bar of the Commonwealth of Pennsylvania et al. (MICHAEL J. EAGEN, HENRY X. O’BRIEN, SAMUEL J. ROBERTS, ROBERT N. C. NIX, JR., LOUIS MANDERINO, ROLF LARSEN, JOHN P. FLAHERTY, as Individuals and as Justices of the Pennsylvania Supreme Court), Respondents PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT EpwARD M. Murpny, II Pro Se Imperial Bank Building Suite 800 695 Town Center Drive Costa Mesa, California 92626 Tel.: (714) 641-5905 SEE OI RT: AEE ROE ORR Murrelle Printing Co., Box 100, Sayre, Pa. 18840—(717) 888-2244 7. QUESTION PRESENTED FOR REVIEW | Was the Petitioner’s claim that he was denied due process of law by the Respondents’ establishment and practice of a standardless waiver policy as to the rule of American Bar Association accreditation of bar examina- tion applicants properly deemed moot by the Third Circuit Court of Appeals after the amendment of such rule spe- cifically providing for no exceptions? TABLE OF CONTENTS PAGE Question Presented for Review ..............:cccssssesssresenes i TORROOE: BATTS Soin fe ccckestecesconpisereptivetgectboccbbsciees iii SE TIOW oven ockncideccsnndhiunsedsvoditvevocscddvsbesacses 2 ER ARE A leet Eh a Rei atl A, 2 Constitutional Provision Involved ..........:..cscccceeeeeees 3 Statement Of the Case ...........cccccssscosccsesscesccccssesoontnoves 3 Reason for Allowance of the Writ: The decision of the court of appeals that this case was rendered moot is in clear conflict with federal principles of justiciability long established by this COurt ...........scccccccccccssssseees SILT 2: cass nat sebidltaaksenignastougtenaisbarebinccinies canine 13 APPENDIX: PUNE MOGI cissvssscevebieasereigjinsoncédinabsenmmapvanaeiet la TE MTUCIN <, -scesconecnccseeednhsaeeshhessocusncapsedebiaiwebvndin 3a NE, och sisikscsescoscceccsttbesonbscdaihessiencoonppnaceanndapedegiaes 6a Memorandum Opinion and Order, District Court .... 10a Third Circuit Judgment Order ............cccscsessreseeeeees 20a Order Denying Rehearing ..............:cccssssserssssserereeees 22a District Court Order December 29, 1980 ................. 23a Pennsylvania Supreme Court Order ...........:ssscsssseees 24a Appellants’ Argument ............cccsccccsscccccoscrseccsnscoeesors 26a Stipulation Of Facts ......cccocccsccccocsccossccesescssesoosecoosnsteoss 28a ee lll TABLE OF AUTHORITIES CASES: Benton v. Maryland, 395 U.S. 784, on remand, 8 Md. App. 388, 260 A.2d 86 (1969) ............... California v. San Pablo and Tulare Railroad, 149 WEL FEE ARIAT | Uekds ic thadicooapes sovendebibnnccseaedbll sease Calloway v. Benton, 336 U.S. 132 (1949) .............. County of Los Angeles v. Davis, 440 U.S. 625 AU RBI sc cliddiss tess occscdsens caleadiesnassibeekebeesss Fati v. Immigration and Naturalization Service, 375 BJA. OT CED! hchalouinets dccpuntlis roboccesasdaitenasockai Flast v. Cohen, 392 U.S. 83 (1968) ..............cccceees Hendry Co. v. Moore, 318 U.S. 133 (1943) ............ In re Appeal of Ferriman, 487 Pa. 45, 408 A.2d 844 CREE cu cilvichiiuhtinstncdblaciediicln sclbieteoagdeentopexensedees LET OD: neosscsssccbesatoncssocasebbvsibososveseapbegonecccecenepetes Johnson v. New York State Education Department, SOG TES, FB CHAT DD. diccitte ovvovivdessisishahetotieasabes Muskrat v. United States, 219 U.S. 346 (1911) ...... National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261 (1938) National Labor Relations Board v. Raytheon Co., FOO TES e 25 AIOE: ciecctevscaieestssagsshierctadbidacgon 11 11 11 Powell v. McCormack, 395 U.S. 486 (1969) ....6, 7,9, 10 Thermtron Products v. Hermansdorfer, 423 U.S. 366 CRI Fiiecerchcabeessinoticijatttibidhogpuritasielaecinecebebons United Public Workers of America v. Mitchell, 330 UE RU LEIOER Golsdialaicncpnssnocsarsibiccosteadeniseiealweee 12 United States v. Concentrated Phosphate Export As- sociation, Inc, 393 U.S. 199 (1968) ................ 9,11 United States v. W. T. Grant Co., 334 U.S. 629 CORR) conksrsbsscdeois Wscioiech eaumibiridinsatdiatnd tthe vonsaces G, 11 United States Parole Commission v Geraghty, 445 SI2os See SE ohshiacteekaagah tosh pbconpndpdietbodinochesonied 6,9 Vitek v. Jones, 445 U.S. 480 (1980) .................0000 11 Zahn vy. International Paper Co., 414 U.S 291 RAIN: cieosonbcebastesabaschd ei Mikbeeb tenaresdevovsabadastandossts 12 CONSTITUTION: RE ees MM PN ARs Wy CCE oiosss sceedndtapcanctsneddeccsncs 3,6 UB: CONG. LV CGMS i,k. cscs scrcesessccssecpsconsens passim RULES: Pennsylvania Bar Admission Rule 203 ............ss0000 10 Pennsylvania Bar Admission Rule 203 (2) .............. 4,7,8, 9, 10, 11 STATUTES: ie MRT RAIY GRD sccnssvckacanhansoddpivddabovureddbcoggielvestetes 2 BE RE Ane ROLY: sccedischboddsh decestbibnpoos sccinbeqnitapehetent + Se Ras, MA MIEAINED ch cinidbcs cites Atendcconbipnoekedpenetsies sbsaspen 2 PE AEA EEE caceks cnlbnttins ianbscatescecccpedhovkedoeprvasstebelles 4 iv Petition IN THE SUPREME COURT OF THE UNITED STATES October Term, 1980 No. EDWARD M. MURPHY, II, Petitioner V. MICHAEL J. EAGEN et al., Respondents PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT The Petitioner, Edward M. Murphy, II, respectfully prays that a Writ of Certiorari be issued to review the judgment order of the United States Court of Appeals for the Third Circuit entered on November 10, 1980, entitled Murphy v. Eagen, No. 80-1752. ae | Opinions Below and Jurisdiction OPINIONS BELOW The memorandum opinion and order of the United States District Court for the Eastern District of Pennsyl- vania, No. 79-2866, has not been officially reported and is attached in the Appendix at 10a. The judgment order of the United States Court of Appeals for the Third Cir- cuit, No. 80-1752, also has not been officially reported and is attached in the Appendix at 20a. The subsequent order of the United States Court of Appeals for the Third Circuit, No. 80-1752, denying the Petitioner’s motion for a rehearing and rehearing en banc, appears in the Ap- pendix at 22a. The order of the United States District Court for the Eastern District of Pennsylvania, No. 79- 2866, vacating its original judgment and dismissing the case, appears in the appendix at 23a. JURISDICTION The judgment order of the United States Court of Appeals for the Third Circuit, No. 80-1752, was entered on November 10, 1980. The Petitioner’s motion for a rehearing and rehearing en banc was denied on December 3, 1980. This petition is filed within the time allowed for the filing of such petition. See 28 U.S.C. §2101(c). The jurisdiction of this Court is invoked under 28 U.S.C. §1254(1). Constitutional Provision Involved and Statement of the Case CONSTITUTIONAL PROVISION INVOLVED This case presents an issue arising under art. III, §2, cl. 1 of the United States Constitution, which provides in part that “The judicial Power [of the United States] shall extend to all Cases, in Law and Equity, arising under this Constitution... .” STATEMENT OF THE CASE The Petitioner, Edward M. Murphy, II, is a graduate of Western State University School of Law, a school which although not accredited by the American Bar Association (ABA), is accredited by the Committee of Bar Examiners of the State of California and various other accrediting and government agencies. The Petitioner took and passed the California Bar Examination in 1976. The Petitioner is a member in good standing of the Supreme Court of California, the United States Court of Appeals for the Third Circuit, the United States District Court for the Middle District of Pennsylvania, and the United States District Court for the Northern District of California. The Petitioner applied for permission to sit for the Pennsylvania Bar Examination in 1976. That application was denied because the Petitioner was not a graduate of an ABA accredited law school as is required by the Pennsyl- vania Bar Admission Rules. The current form of the rule a ~~ *-» Statement of the Case at issue is found at Rule 203(2) (Appendix 24a) (1980). After several unsuccessful appeals of the decision\ to the Pennsylvania Supreme Court, the Petitioner filed an action in the United States District Court for the Eastern District of Pennsylvania alleging a violation of due process in that the Respondents practiced a waiver policy as to the en- forcement of the requirement of ABA accreditation without any cognizable standards or guidelines. The action was argued to have arisen under 42 U.S.C. §1983 with the jurisdiction of the court based on 28 U.S.C. §1343 (3). In an opinion and order dated April 3, 1980, Judge Weiner of the district court held, in granting a motion for summary judgment, that the Respondents had indeed been practicing a waiver policy as to the ABA accreditation rule without acknowledging the criteria upon which decisions as to the granting of a waiver were made. This was held to constitute a denial of due process to the extent that the Respondents failed to issue standards governing the waiver of the requirement. It was ordered that: In accordance with this opinion, and in order to comply with the due process clause of the Fourteenth Amendment, defendants [Respondents] are t issue appropriate standards and guidelines to govern the grant or denial of waivers of the ABA accreditation requirement and Pennsylvania Bar Admission Rules 203 and 205. (Appendix 19a.) This decision was appealed by the Respondents, not upon the grounds that there was no denial of due process, but on the grounds of res judicata, error in granting sum- mary judgment, and mootness. The argument that the is- sue was moot was based upon the subsequent amendment Statement of the Case by the Respondents to the Pennsylvania Bar Admission Rules which stated that che requirement that applicants be graduates of an ABA accredited law school be enforced “without exception” (Appendix at 26a). The Respon- dents argued, inter alia, that this satisfied the district court’s order to issue standards and guidelines even though such an amendment applied only to future applicants and in no way expressed the standards and guidelines relied upon by the court in declining io grant a waiver of the rule as to the Petitioner. In an order dated November 10, 1980, the United States Court of Appeals for the Third Circuit declared that, with the adoption of the amended rule by the Respondents, the appeal was rendered moot, and it was ordered that the appeal be dismissed and the case remanded to the district court with instructions to vacate the judgment and dismiss the case as moot. No discussion or explanation of the court of appeals’ reasoning was expressed in its judgment order. It is from this order of the court of appeals that the Petitioner seeks the reveiw of this Court and the issuance of a Writ of Certiorari. | Reason for Allowance of the Writ REASON FOR ALLOWANCE OF THE WRIT The Decision of the Court of Appeals That This Case Was Rendered Moot Is in Clear Conflict With Federal Prin- ciples of Justiciability Long Established by This Court It is axiomatic to state that the judicial power of the United States extends to all “‘cases” and “controversies” arising under federal law. U.S. Const., art. III, $2, cl. 1; Flast v. Cohen, 392 U.S. 83, 94-95 (1968). The “cases” and ‘“‘controversies” limitation is designed, in part, to re- strict ‘the business of federal courts” to those ‘‘questions presented in an adversary context and in a form capable of resolution . . . through the judic‘al process.” Flast v. Cohen, supra, 392 U.S. at 95. In addition, the limitation delineates the “role assigned to the judiciary ; . . to assure that the federal courts will not intrude into areas com- mitted to the other branches of government.” Id. Accord, United States Parole Commission v. Geraghty, 445 US. 388, 395-96 (1980). The term justiciability is “employed to give expression to this dual limitation placed upon the federal courts by the case-and-controversy doctrine.”” Flast v. Cohen, supra. A case will be considered not justiciable, i.e., unable to meet the :ase-and-controversy requirement, if it is moot. See California v. San Pablo and Tulare Railroad, 149 U.S. 308 (1893). In Powell v. McCormack, 395 U.S. 486 (1969) , this Court noted: “Simply stated, a case is moot 7 Reason for Allowance of the Writ when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Id. at 496. It would appear clear from the circumstances of the instant case that neither element of the doctrine of moot- ness as expressed by this Court has been established and that the case remains an active “case” or “controversy” under article III. The Court of Appeals for the Third Circuit, in a tersely worded judgment order, held that by the adoption of amendments to the Pennsylvania Bar Admission Rules, ¢ specifically Rule 203 (2), the appeal was rendered moot (Appendix 20a-21a). Since the court of appeals did not expressly state the rationale behind this holding and there was no oral argument, it can only be assumed that it adopted the argument of the Respondents presented in their brief as appellants below (Appendix 26a-27a). The Respondents, as appellants below, contended that because “(t]he promulgation of ‘waiver’ standards was the only relief ordered by the court below [the district court] . . . this case has thus become moot,” since the amendment of Rule 203 (2), by the addition of the phrase “without ex- ception” to the ABA accreditation requirement, satisfying the district court’s order (Appendix 26a-27a). Such an interpretation of the district court’s decision and order by the Respondents and ultimately by the court of appeals is unwarranted. The Petitioner, in seeking adjudication of his claim of a denial of due process in the Respondents’ practice of a standardless waiver policy as to the ABA ac- creditation requirement, naturally sought redress which would satisfy his own prayer for relief (see Complaint, Appendix 6a-9a), i.e., relief including the reason behind the waivers granted to others in the past so that his own ap- Reason for Allowance of the Writ plication could be ruled upon in a manner consistent with the fourteenth amendment. The addition of the phrase “without exception” to Rule 203 (2), even assuming that it would qualify as the promulgation of waiver standards and guidelines, hardly offers or explains the criteria upon which the Respondents relied in granting or denying a waiver to others in the past. Such an amendment relates, if at all, only to future applicants. Neither does it grant to the Petitioner an opportunity to determine upon what bases his own prior application was considered and denied. The district court opinion of Judge Weiner makes it clear that the Respondents’ practice of a standardless waiv- er policy was a violation of the due process clause of the fourteenth amendment (Appendix 17a-19a). The district court found it “particularly disturbing” that the Respor- dents gave no reasons for denials of waivers, especially in light of the fact that at least one applicant, Thomas Sylk, and allegedly others, had been granted waivers of the re- quirement (Appendix 17a). In addition, the district court pointed out that, although the Respondents affirmed the decision of the Pennsylvania Board of Law Examiners re- fusing to allow the Petitioner to sit for the bar examination, they failed to even address the issue of waiver (Appendix 17a,n. 3). These findings and the language of the district court cannot be ignored in interpreting the meaning of the court’s order of relief. By its order the Respondents “are to issue appropriate standards and guidelines to govern the grant or denial of waivers of the ABA accreditation requirement” (Appendix 19a). The only legitimate interpretation that could possibly be offered to explain such an order is that it required the issuance of an explanation of the standards Reason for Allowance of the Writ and guidelines utilized in considering the Petitioner's prior application as well as those who had been granted waivers in the past, with the possibility that it also required the promulgation of standards and guidelines to be applied to future applicants. To limit the district court’s order merely to the latter relief is contrary to the language and intent of the district court’s opinion. Considered in this light it is plain that the present controversy is not moot. By the adoption of the present amendment to Rule 203 (2), the district court’s order has not been fully complied with by the Respondents. There- fore, the issue of a denial of due process in a standardless waiver policy remains “‘live.’’ Because the Petitioner is still unable to sit for the Pennsylvania bar examination, he retains a “personal stake” in the ultimate outcome of the proceedings. See United States Parole Commission vy. Geraghty, supra, 445 U.S. at 396-97. It can hardly be doubted that he lacks a “legally cognizable interest in the outcome.” See Powell v. McCormack, supra, 395 USS. at 496. Therefore, the elements of mootness are not present and it was error for the court of appeals to have dismissed the appeal and ordered the district court to vacate its judg- ment and dismiss the case. It must be emphasized that the burden on a party al- leging mootness is a heavy one. See United States v. Con- centrated Phosphate Export Association, Inc., 393 U.S. 199, 203 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953). The Respondents have failed to meet that burden. The record is bare of any indication that the controversy between the parties herein does not sur- vive. The Respondents’ only contention is that the district court’s order has been satisfied. As shown above, this con- ’s% 10 Reason for Allowance of the Writ tention is without substantial merit. At best, the Respon- dents might be able to argue legitimately that the district court’s order was partially satisfied with the latest amend- ment to Rule 203 (2) and as to that aspect of the proceed- ings, i.e., standards and guidelines as to future applicants, the controversy is moot. However, “[w]here one of the several issues presented becomes moot, the remaining live issues supply the constitutional requirement of a case or controversy.”” Powell v. McCormack, supra, 395 USS. at 497; United Public Workers of America v. Mitchell, 330 U.S. 75, 86-94 (1947). The remaining issue of standards and guidelines applicable to past applicants remains unre- solved. Where changes or amendments to statutes or rules lead to some degree of ambiguity as to whether a case or controversy has been mooted, it is improper to resolve the debate in favor of a finding of mootness. See Foti v. Im- migration and Naturalization Service, 375 U.S. 217, 220 n. 4 (1963). But even this aspect of the Respondents’ contention must fail. The argument that the Respondents’ action in amending Rule 203(2) by the addition of the language ‘without exception”’ satisfies the court’s order ignores the interpretation given to prior forms of the rule by the Re- spondents themselves. The language of the prior rule im- plicitly provided for no exceptions to the ABA accredita- tion rule. In addition, the Respondents held on several occasions that the requirement would be adhered to “with- out deviation or exception.” See In re Appeal of Ferriman, 487 Pa. 45, 408 A.2d 844 (1979); In re Appeal of Kar- torie, 486 Pa. 500, 406 A.2d 746, 747 (1979). See also Pennsylvania Bar Admission Rule 203, Note. Yet, in spite of these pronouncements, the Respondents have waived il Reason for Allowance of the Writ this requirement. (See District Court Opinion, Appendix 18a.) The addition of the language “‘without exception” to Rule 203 (2), therefore, offers no greater assurance of due process protection than did the prior version and in- terpretation of the rule. A case may be mooted only if “subsequent events [make] it absolutely clear that the al- legedly wrongful behavior could not reasonably be ex- pected to recur.” United States v. Concentrated Phosphate Export Association, Inc., supra, 393 U.S. at 203. See also Vitek v. Jones, 445 U.S. 480, 487 (1980); County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Johnson v. New York State Education Department, 409 U.S. 75, 78 (1972); and United States v. W. T. Grant Co., supra, 345 U.S. at 632. Such certainty that the Respondents would not continue to practice a waiver policy as to the ABA ac- creditation rule cannot be found in this case. Even if it were assumed that the district court’s order were followed, it has been held by this Court that compliance with a court order redressing an alleged grievance will not necessarily moot a case. See National Labor Relations Board vy. Ray- theon Co., 398 U.S. 25 (1970); National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 US. 261 (1938); and County of Los Angeles v. Davis, supra, 440 U.S. at 643 (Dissent, Powell, J.). Because the court of appeals in its judgment order has clearly departed from the legal principles cited and dis- cussed in the cases above, this Court should intervene to re- view that judgment. Mootness is a jurisdictional issue aris- ing under article III. Benton v. Maryland, 395 U.S. 784, 7&8, on remand, 8 Md. App. 388, 260 A.2d 86 (1969); Muskrat v. United States, 219 U.S. 346 (1911). This Court has demonstrated its eagerness to protect the juris- ’% >. 12 Reason for Allowance of the Writ dictional integrity of federal courts in a variety of situ- ations in deciding whether to grant certiorari. See, e.g., Thermtron Products v. Hermansdorfer, 423 U.S. 366 (1976) (power of district court in granting removal) ; Zahn v. International Paper Co., 414 U.S. 291 (1973) (jurisdictional amount in class actions) ; Calloway v. Ben- ton, 336 U.S. 132 (1949) (jurisdictional conflicts between state courts and bankruptcy courts); and Hendry Co. v. Moore, 318 U.S. 133 (1943) (admiralty jurisdiction). The Court should not hesitate to do so here. Finally, this Court should grant certiorari because of the public importance of the ultimate issues involved. Not only is the opportunity of the Petitioner to seek admit- tance to his chosen profession hindered but so is the oppor- tunity of all those similarly situated, i.e., those whose ap- plications were denied during the existence of a waiver policy practiced without specified standards. Of even greater importance is the effect on the ability of all citizens of Pennsylvania to obtain competent and competitive legal services in light of a policy that may have allowed the ad- mittance to the bar of unqualified attorneys yet denied ad- mittance to qualified ones, all without the application of any measurable standards or guidelines. And perhaps the most serious effect is the damaging impression of judicial favoritism; unexplained preference degrades confidence in the integrity and impartiality of the judiciary (ABA Code of Judicial Conduct, Canons 1, 2, and 3). Many petitions come before this Court and likely most deserve attention. However very few present a circum- stance more damaging to the confidence in American juris- prudence at a time in this country’s history when faith in | government and its laws is desperately needed. > 13 Reason for Allowance of the Writ , CONCLUSION Because these issues have not been permitted to run their judicial course, due to the unwarranted finding of mootness, the relief of this Court is required. A Writ of Certiorari should be granted. Respectfully submitted, (s) Edward M. Murphy II EDWARD M. Murphy II, Pro Se Imperial Bank Building Suite 800 695 Town Center Drive Costa Mesa, California 92626 Tel.: (714) 641-5905 74 la Notice of Appeal APPENDIX UNITED STATES COURT OF APPEALS For the Third Circuit Case No. 80-1752 EDWARD M. MURPHY, II, Appellant, vs. MICHAEL J. EAGEN, individually and as a justice of the Pennsylvania Supreme Court who has responsibility for admissions to the Bar of the Commonwealth of Pennsyl- vania, et al., (Michael J. Eagen, Henry X. O’Brien, Samuel J. Roberts, Robert N. C. Nix, Jr., Louis Manderino, Rolf Larsen, John P. Flaherty, as individuals and as Justices of the Pennsylvania Supreme Court) , Appellees. NOTICE OF APPEAL TO THE SUPREME COURT OF THE UNITED STATES NOTICE IS HEREBY GIVEN THAT, Edward M. Murphy, II, the appellant in the above styled cause, hereby appeals to the Supreme Court of the United States from the final judgment of the United States Court of Appeals for the Third circuit dated November 14, 1980 (rehearing 7% 2a Notice of Appeal denied on December 3, 1980) holding this controversy moot and ordering dismissal of appeal and remand to the district court with instructions to vacate the judgment and dismiss the case as moot. This appeal and review is taken pursuant to 42 U.S.C. 1984 and 28 U.S.C. 1254 (1). Dated: December 22, 1980 (s) Edward M. Murphy, II, Edward M. Murphy, II, Imperial Bank Building 695 Town Center Drive, Suite 800 Costa Mesa, CA 92626 (714) 641-5905 3a Proof of Service UNITED STATES COURT OF APPEALS For the Third Circuit Case No. 80-1752 EDWARD M. MURPHY, II, Appellant, vs. MICHAEL J. EAGEN, individually and as a justice of the Pennsylvania Supreme Court who has responsibility for admissions to the Bar of the Commonwealth of Pennsyl- vania et al., Appellees. PROOF OF SERVICE I, STEVEN D. SILVERSTEIN, am a resident in the County of Orangr, State of California. I am over the age of 21 and not a party to the within action; my address is 695 Town Center Drive, Suite 800, Costa Mesa, Cali- fornia. On December 23, 1980, I served the foregoing docu- ment described as NOTICE OF APPEAL TO THE SU- PREME COURT OF THE UNITED STATES on the above appellees in this action by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in the United States mail at Costa Mesa, Califor- % 7% 4a Proof of Service nia, addressed as follows: James D. Crawford, Esq., Schnader, Harrison, Segal & Lewis, 1719 Packard Building, Philadelphia, PA 19102. Executed on December 23, 1980, at Costa Mesa, CAlifornia. (s) Steven D. Silverstein STEVEN D. SILVERSTEIN State of California County of Orange Ss: On December 23, 1980, before me, a notary public, personally appeared Steven Silverstein known to me to be the person whose name is subscribed to the within instru- ment and acknowledged to me that —he— executed the same. (s) Gail E. Marlin GAIL E. MARLIN GAIL E. MARLIN Notary Public California Principal Office in Orange County (Seal) 7”. 5a Proof of Service UNITED STATES COURT OF APPEALS For the Third Circuit Case No. 80-1752 EDWARD M. MURPHY, II, Appeilant, vs. MICHAEL J. EAGEN, individually and as a justice of the Pennsylvania Supreme Court who has responsibility for admissions to the Bar of the Commonwealth of Pennsyl- vania et al., Appellees. ACKNOWLEDGMENT OF RECEIPT OF DOCUMENT I, James D. Crawford, hereby acknowledge the re- ceipt of a copy of the NOTICE OF APPEAL TO THE SUPREME COURT OF THE UNITED STATES, in the above action, this 29th day of December 1980. \I am the counsel of record for all appellees herein. Dated: December 29, 1980 (s) James D. Crawford James D. Crawford 7s Ss 6a Complaint IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Civil Action No, 79-2866 IN RE: Edward M. Murphy, II sie Plaintiff vs. Michael ]. Eagen, individually and as a justice of the Penn- sylvania Supreme Court who has responsibility for admin- istration of admissions to the Bar of the Commonwealth of Pennsylvania, Henry X. O’Brien, individually and as a justice of the Pennsylvania Supreme Court who has responsibility for administration of admissions to the Bar of the Common- wealth of Pennsylvania, Samuel ]. Roberts, individually and as a justice of the Pennsylvania Supreme Court who has responsibility for administration of admissions to the Bar of the Common- — wealth of Pennsylvania, Robert N. C. Nix, Jr., individually and as a justice of the Pennsylvania Supreme Court who has responsibility for administration of admissions to the Bar of the Common- wealth of Pennsylvania, Louis L. Manderino, individually and as a justice of the Pennsylvania Supreme Court who has responsibility for administration of admissions to the Bar of the Common- wealth of Pennsylvania, 7a Complaint Rolf Larsen, individually and as a justice of the Pennsyl- vania Supreme Court who has responsibility for adminis- tration of admissions to the Bar of the Commonwealth of Pennsylvania, John P. Flaherty, individually and as a justice of the Penn- sylvania Supreme Court who has responsibility for ad- ministration of admissions to the Bar of the Commonwealth of Pennsylvania, Defendants. COMPLAINT 1. Plaintiff is a citizen and resident of the State of Pennsylvania. 2. The Defendants are citizens of the State of Penn- sylvania. 3. This action arises under 42 U.S.C. 1983. The jurisdiction of this court lies under 28 U.S.C. 1343 (3). 4. At all times pertinent to this complaint, the De- fendants were justices of the Pennsylvania Supreme Court, acting under color of state law, specifically, their well- recognized power to regulate admission to the practice of law. 5. Under Pennsylvania Bar Admission Rules 203 and 205, one of the requirements for admission to the bar is that the applicant be a graduate of a law school ac- credited by the American Bar Association or an equivalent foreign school. This requirement was formerly embodied in Rule 8-C-2. 6. This requirement may be waived by the Pennsyl- vania Supreme Court. The requirement was waived in the *» a 8a Complaint case of Thomas Sylk and others. All of these individuals had graduated from law schools not accredited by the ABA, but were nonetheless deemed eligible for the Penn- sylvania Bar. 7. The Pennsylvania Supreme Court gave no rea- sons why the requirement was waived in these cases. 8. There are no standards or guidelines governing this waiver practice. 9. Plaintiff, a graduate of Western State University School of Law and a member of the California Bar, sought admission to the Pennsylvania Bar. In November 1976, Plaintiff’s application was rejected by the Board because Western State Law School has not been accredited by the ABA. On December 23, 1977, this ruling was affirmed by the Pennsylvania Supreme Court. 10. Upon discovering that the ABA accreditation requirement had been waived by the Pennsylvania Su- preme Court in the cases of Thomas Sylk and others, Plain- tiff sought a similar waiver. 11. Plaintiff's request for such waiver was denied. The majority’s ruling did not distinguish or even mention the cases in which waivers were granted to Sylk and the others, despite the fact that Plaintiff urged these as prece- dent for granting a waiver in his case. In fact, the opinion actually went so far as to intimate that there was no waiver practice and that it was simply impossible for a graduate of a law school not accredited by the ABA to become eli- gible for the Pennsylvania Bar. 12. Plaintiff appealed this decision to the Supreme Court of the United States. This appeal was dismissed and 9a Complaint certiorari denied for want of jurisdiction. 47 U.S.L.W. 1644. Plaintiff had not adequately presented his challenge to the constitutionality of the waiver practice in the court below. 13. The denial of Plaintiff’s request for a waiver was a violation of rights guaranteed him by the Fourteenth Amendment in that the waiver practice promulgated by the Defendants is not governed by standards and is adminis- tered in an arbitrary, capricious and unequal fashion, all of which renders bar admission, in cases where the appli- cant has graduated from a school not accredited by the ABA, a matter of grace and favor of the Defendants. This practice violates the Plaintiff’s right to equal protection of the laws as guaranteed by the Fourteenth Amendment. 14. Plaintiff has incurred considerable expense in seeking application to the bar under the waiver practice. 15. WHEREFORE, Plaintiff prays that this court enjoin the Defendants to bring the waiver practice up to Constitutional standards by publishing guidelines governing the dispensation of waivers and by explaining the reasons behind the waivers granted to Sylk and the others, so that Plaintiff’s application for waiver may be ruled upon in a manner consistent with the Fourteenth Amendment. Fur- ther, Plaintiff prays for such other relief as the Court deems just and proper. (s) Edward M. Murphy II Plaintiff Edward M. Mur$bv i 505 Lombard Street Philadelphia, PA 19147 (215) 922-2654 (717) 346-1971 >. 10a Memorandum Opinion IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA C.A. No. 79-2866 ‘ In Re: EDWARD M. MURPHY, vs. MICHAEL J. EAGEN, individually and as a justice of the Pennsylvania Supreme Court who has responsibility for administration of admissions to the Bar of the Common- wealth of Pennsylvania, and HENRY X. O'BRIEN, individually and as a justice of the Pennsylvania Supreme Court who has responsibility for administration of admissions to the Bar of the Common- wealth of Pennsylvania, and SAMUEL J. ROBERTS, individually and as a justice of the Pennsylvania Supreme Court who has responsibility for administration of admissions to the Bar of the Common- wealth of Pennsylvania, and ROBERT N. C. NIX, JR., individually and as a justice of the Pennsylvania Supreme Court who has the responsi- bility for administration of admissions to the Bar of the Commonwealth of Pennsylvania, and lla Memorandum Opinion LOUIS L. MANDERINO, individually and as a justice of the Pennsylvania Supreme Court who has responsibility for administration of admissions to the Bar of the Common- wealth of Pennsylvania, and ROLF LARSEN, individually and as a justice of the Penn- sylvania Supreme Court who has responsibility for ad- ministration of admissions to the Bar of the Common- wealth of Pennsylvania, and JOHN P. FLAHERTY, individually and as a justice of the Pennsylvania Supreme Court who has responsibility for administration of admissions to the Bar of the Common- wealth of Pennsylvania. MEMORANDUM OPINION AND ORDER WEINER, J., APRIL 3, 1980 Plaintiff, a citizen and resident of Pennsylvania in- stituted this action, against the Chief justice and associate justices of the Supreme Court of Pennsylvania, alleging a violation of his Constitutional rights. The parties have sub- mitted a stipulation of facts. Presently before the Court are the defendants’ motion to dismiss and the plaintiff's motion for summary judgment. For the reasons to follow, we grant the plaintiff’s motion, and deny the defendants’ motion. Plaintiff is a 1976 graduate of Western State Uni- versity School of Law, (‘Western State’’) located in Ful- lerton, California, and is a member of the bar of the State of California, having taken and passed the California Bar °-*. 12a Memorandum Opinion Examination in 1976. Western State is not accredited by the American Bar Association, (“ABA”), although it is accredited by the Committee of Bar Examiners of the State of California and various other accrediting and government agencies. Plaintiff has been admitted to and is a member in good standing of the Supreme Court of California, the United States Court of Appeals for the Third Circuit, the United States District Court for the Middle District of Pennsylvania, and the United States District Court for the Northern District of California. Sometime before October 31, 1976, plaintiff applied to the Pennsylvania Board of Law Examiners, (“Board’’), for permission to take the Pennsylvania bar examination. On November 24, 1976, Plaintiff was informed by the Board that his application had been denied because he had not graduated from an ABA approved law school, as re- quired by Pennsylvania Supreme Court Rules.’ Plaintiff's appeal from the Board’s decision to the Supreme Court of Pennsylvania was denied, without opinion, on December 23, 1976. 1 The rules governing admission to the Pennsylvania Bar were amended in 1971, 1976, and 1977. The 1971 changes, inter alia, rescinded Supreme Court Rule 8 and amended Supreme Court Rule 10. Rule 10-c-2 required that ‘‘to qualify for the bar exam- ination an applicant... shall have completed the study of law in a law school accredited by the American Bar Association.’’ The 1976 changes permitted a person to sit for the bar examination if he or she ‘‘shall have acquired a legal education which in the opinion of the State Board is the equivalent of the education re- ceived in an ABA approved school.’’ The 1977 changes redesig- nated and amended Supreme Court Rules 7 through 16 as the Pennsylvania Bar Admission Rules. The current form of these rules are Pa. B.A.R. 203(2) and 205. 471 Pa. Lxxix. 13a Memorandum Opinion On September 10, 1977 Plaintiff again applied to the Board for permission to take the Pennsylvania bar exami- nation. The Board, on October 3, 1977, again denied the application because Plaintiff had not graduated from an ABA approved school. Plaintiff’s appeal of the Board’s decision to the Supreme Court of Pennsylvania was again denied on October 5, 1978. Rule 203 of the Pennsylvania Bar Admission Rules provides in pertinent part: “The general requirements for admission to the bar of this Commonwealth are: (2) Receipt of an earned Bachelor of Laws or Juris Doctor degree from an accredited law school. See Rule 205 (relating to admission of foreign attor- neys) for standards applicable to graduates of foreign law school.” Rule 205 of the Pennsylvania Bar Admission Rules provide in pertinent part: “The Board, under such standards, rules and pro- cedures as it may prescribe, may extend the provisions of Rule 203 (relating to the admission of graduates of accredited institutions) to any applicant who has com- pleted the study of law in a law school which at the time of such completion was not located within the geographical area encompassed by the accreditation activities of the American Bar Association and who has been admitted to practice law in and is in good standing at the bar of a foreign country, as evidenced by a certificate from the highest court or agency of such foreign country having jurisdiction over admis- sion to the bar and the practice of law. 14a Memorandum Opinion Note: This rule makes clear that the Board does not have the power to entertain applications from per- sons who have ‘read law’ in a law office, studied law in the United States in unaccredited law schools, etc.”’ Rule 222 of the Pennsylvania Bar Admission Rules provides in pertinent part: (a) Except as prescribed by Rule 221 (re- lating to marking of bar examination papers) any final determination of the Board may be reviewed by the Supreme Court.” Plaintiff alleges that the Pennsylvania Supreme Court engages in a “waiver practice” whereby the ABA accredi- tation requirement is waived for some graduates of non- ABA approved law schools, who are permitted to take the Pennsylvania Bar Exam. Plaintiff’s claim is that these waivers are dispensed in a way which violates the due process and equal protection clauses of the Fourteenth Amendment. To support his claim, Plaintiff points to the case of one Thomas Sylk. At the time of Sylk’s graduation from the Eastern College of Commerce and Law in 1966, that law school was not accredited by the ABA. The school merged with another non-ABA accredited law school, the University of Baltimore School of Law, in 1970, which was subsequently accredited by the ABA in 1972. On January 24, 1977, Sylk applied to the Board for permission to take the Pennsylvania bar examination. The application was denied on March 18, 1977 because Slyk had not graduated from an ABA accredited law school. Sylk appealed the Board’s decision to the Supreme Court of Pennsylvania, which on June 6, 1977 reversed the 15a Memorandum Opinion Board and permitted Sylk to sit for the Pennsylvania bar examination. Plaintiff notes that his second application to the Board and appeal to the Supreme Court were denied after permission to take the exam had been given to Sylk. Plaintiff has previously challenged in federal court the ABA accredited law school requirement itself and the action of the Board and the Pennsylvania Supreme Court on equal protection grounds. Murphy v. State Board of Law Examiners for the Commonwealth of Pennsylvania, 429 F. Supp. 16 (E.D. Pa. 1977). That court dismissed the complaint for failure to state a cause of action for which relief could be granted. In so ruling, the court held that the state, in classifying bar applicants into a class of ABA accredited law school graduates and a class of non- ABA accredited law school graduates is not violating the equal protection clause of the Fourteenth Amendment. The rules governing admission to the Pennsylvania bar, requiring graduation from an ABA approved law school were held not to involve a suspect classification or invidi- ous discrimination, see In Re Griffiths, 413 U.S. 717 (1973) , but rather are a classification rationally related to the state’s valid interest in assuring professional compe- tence and protection of the public. Since a suspect classifi- cation is not involved, our scrutiny of the wisdom of the state’s action is limited. Murphy, 429 F. Supp. at 18. The defendants seek the dismissal of the plaintiff’s equal protection claim on res judicata grounds. However, because we agree that the ABA accreditation requirement does not violate the equal protection clause, we need not delve into the res judicata issue. The defendants prevail on the merits of that claim. The defendants’ assertion that plaintiff’s due process claim must be dismissed on res 16a Memorandum Opinion judicata grounds cannot be accepted, because after close examination of the court’s opinion in Murphy, supra, we have found no indication of the court passing upon the merits of plaintiff’s due process claim. It appears to us that the due process claim was not an issue in that case, and that the case was limited in scope to the equal protec- tion claim. Thus, since this is the first time a due process claim has been raised, we shall address it on the merits. Plaintiff does not challenge the requirement that a candidate must attend an ABA approved law school or foreign law school,’ nor does he challenge the waiver process per se as a means of determining eligibility for the bar. Rather, plaintiff’s contention is that the waivers may not be granted in a manner which violates the Fourteenth Amendment guarantee of Due Process. Plaintiff argues that the waivers can not be arbitrarily granted or withheld, without reason and guiding standards. Plaintiff asserts that the Pennsylvania Supreme Court has given no reasons as to why he or any other applicant 2 Without making any determination as to the Constitution- ality or wisdom of such a provision, we find it odd that in the interest of protecting the public through regulation and oversight of the qualifications and competence of those seeking to be ad- mitted to the bar of the Commonwealth, the Board and the Su- preme Court deem those who have graduated from foreign law schools and who have been admitted to practice in foreign coun- tries to be qualified to practice law in the courts of Pennsylvania if they also pass the bar examination, yet denies the opportunity to take the exam and, if successful practice in Pennsylvania to those who have not only graduated from an American law school, albeit not one meeting ABA approval, but who have in fact been admitted to and have been actually engaged in the practice of law in sister states. 17a Memorandum Opinion for admission to the bar has not received a waiver.’ This is particularly disturbing in light of the fact that at least one, Thomas Sylk, and allegedly other applicants have been granted waivers of the requirement. Plaintiff’s position is that the Court must establish standards to be followed in the waiver procedure. It is significant that plaintiff does not ask this court to pass on the validity of specific substantive requirements promulgated by the Board and the Pennsylvania Supreme Court in regard to bar admission. If faced with such a situation, we would be reluctant to substitute the judgment of a federal court for that of the high court of a state in a matter properly within the latter’s province.* But plain- tiff’s claim is a constitutional challenge to the operation of the state’s bar admission scheme, not to the actual substan- tive requirements of that scheme. We are not asked to sub- stitute our judgment for that of the State of Pennsylvania regarding the qualifications necessary for admission to the bar. Pennsylvania, in its wisdom, has chosen to require graduation from an ABA approved law school or foreign law school as a requirement for taking the State bar exami- ®The court did issue an opinion in which it affirmed the Board’s refusal to allow plaintiff to sit for the Pennsylvania bar examination. No. 8 Mise. Docket No. 1978. However, the opinion did not address the waiver of the ABA accreditation requirement. Rather, the Court defended the validity of the requirement as a condition for admission to the bar, and reliance on the ABA and its accreditation process. 4 That is, absent some fatal defect such as an improper classi- fication based on race, sex, or alienage. See, e.g., In Re Griffiths, 413 U.S. 717 (1973). Of course, other improper classifications of constitutionally defective requirements are conceivable, and must be considered by a court if raised. 7% 18a Memorandum Opinion nation. We are not asked to rule on the merits of the pro- vision itself, and as we have indicated would have serious reservations about striking it merely because we might pre- fer some other scheme. Yet, Pennsylvania has also decided to permit the waiver of the ABA approved school require- ment. In doing so it had made available to bar applicants who do not meet the requirement an ad hoc procedure by which they may nevertheless seek admission. Such an ad- missions procedure, administered by means of the waiver, must be operated in accordance with the due process guar- antees of the Fourteenth Amendment. Waivers may not be granted or denied arbitrarily or capriciously, or without definable reasons or standards. In the absence of any guid- ing principles which may be pointed to as forming the basis of a waiver decision there is no indication that due process has been adhered to. There is no intimation of the rational basis on which the Court’s discretion has been exercised. Due process will not allow the exercise of unfettered dis- cretion, or the use of improper criteria. While we have no reason to believe nor do we mean to infer that this or any other waiver decision was the result of an improper exer- cise of discretion in violation of the Fourteenth Amend- ment, we simply do not know, and neither do plaintiff or other graduates of non-ABA accredited law schools who wish to be admitted to the bar in Pennsylvania. No rea- sons have been given, and no standards and guidelines for issuance or denial of waivers have been established. Appli- cants for admission to the bar by the way of the waiver procedure are entitled to know the criteria which must be met in order to be granted a waiver. This court can not order that plaintiff be allowed to take the Pennsylvania bar examination. To do so would in 19a Memorandum Opinion effect abolish the ABA accreditation rule, and, as we have said, that rule and all others pertaining to the qualifications required for admission to the bar in Pennsylvania are prop- erly established by the Pennsylvania Supreme Court and the Board of Law Examiners. Neither is it proper for this court to inquire further into the relative qualifications of the plaintiff and of Sylk (or any other non-ABA school graduates). It is not fcr us to ascertain whether plaintiff is entitled to a waiver of the ABA accreditation requirement, or to speculate as to the reasons the Court permitted Sylk, but not plaintiff, to take the bar examination. Furthermore, we in no way mean to imply that the Court acted improperly in regard to these decisions except to the extent that it failed to issue standards governing the waiver of the requirement. In accordance with this opinion, and in order to com- ply with the due process clause of the Fourteenth Amend- ment, defendants are to issue appropriate standards and guidelines to govern the grant or denial of waivers of the ABA accreditation requirement and Pennsylvania Bar Ad- mission Rules 203 and 205. 20a Judgment Order UNITED STATES COURT OF APPEALS For the Third Circuit No, 80-1752 MURPHY, EDWARD M. II vs. EAGEN, MICHAEL J., individually and as justice of the Pennsylvania Supreme Court who has responsibility for administration of admissions to the Bar of the Common- wealth of Pennsylvania et al. Michael J. Eagen, Henry X. O’Brien, Samuel J. Roberts, Robert N. C. Nix, Jr., Louis L. Manderino, Rolf Larsen and John P. Flaherty, the Justices of the Supreme Court of Pennsylvania, Appellants (D.C. Civil No. 79-2866) On Appeal From the United States District Court for the Eastern District of Pennsylvania Submitted Under Third Circuit Rule 12(6) Novem- ber 7, 1980 Before GIBBONS and WEIS, Circuit Judges, and WHIPPLE, District Judge. Edward M. Murphy, II pro se Imperial Bank Building Suite 800 695 Town Center Drive Costa Mesa, California 92626 21a Judgment Order Bernard G. Segal, Esquire James’D. Crawford, Esquire Donald B. Lewis, Esquire Schnader, Harrison, Segal & Lewis 1719 Packard Building Philadelphia, Pennsylvania 19102 Attorneys for Appellants JUDGMENT ORDER This appeal having been rendered moot by the adop- tion, subsequent to the date of the order appealed from, of an amendment to Rule 203(2) of the Pennsylvania rules governing admission to the bar, it is ORDERED that the appeal be and is hereby dismissed and the case remanded to the district court with instruc- tions to vacate the judgment and dismiss the case as moot. No Costs. By the Court, (s) John J. Gibbons Circuit Judge Attest (s) Sally Mrvos Sally Mrvos, Clerk Dated: Nov 10 1980 Certified as a true copy and issued in lieu of a formal mandate on December 11, 1980. Test: (s) M. Elizabeth Ferguson Chief Deputy Clerk, U.S. Court of Appeals for the Third Circuit 22a Order Denying Rehearing UNITED STATES COURT OF APPEALS For the Third Circuit No. 80-1752 EDWARD M. MURPHY, II, Appellee, V. MICHAEL J. EAGEN, individually and as justice of the Pennsylvania Supreme Court who has responsibility for administration of admissions to the Bar of the Common- wealth of Pennsylvania et al. Michael J. Eagen et al., Appellants Sur Petition for Rehearing Present: SEITZ, Circuit Judge, ALDISERT, GIB- BONS, ROSENN, HUNTER, WEIS, GARTH, HIGGIN- BOTHAM and SLOVITER, Circuit Judges. The petition for rehearing filed by Appellee in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. By the Court, (s) John J. Gibbons Judge Dated: December 3, 1980 | 23a District Court Order December 29, 1980 [IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA C.A. No. 79-2866 EDWARD M. MURPHY, II vs. MICHAEL J. EAGEN ET AL. ORDER WEINER, J., DECEMBER 29, 1980 In accordance with the instructions to this Court by the United States Court of Appeals for the Third Circuit, the judgment entered by this Court by Memorandum Opin- ion and Order dated April 3, 1980, is vacated, and the case dismissed as moot. IT ISSO ORDERED. (s) Charles R. Weiner CHARLES R. WEINER 24a Pa. Supreme Court Order IN THE SUPREME COURT OF PENNSYLVANIA No. 57, Supreme Court Rules Docket No. 1 IN RE: PENNSYLVANIA BAR ADMISSION RULES ORDER AND NOW, this 25 day of April, 1980, pursuant to Article V, Section 10 of the Constitution of Pennsylvania, Rule 203 (2) of the Pennsylvania Bar Admission Rules is hereby amended to read: “(2) Receipt without exception of an earned Bachelor of Laws or Juris Doctor degree from an ac- credited law school. See Rule 205 (relating to ad- mission of foreign attorneys) for standards applicable to graduates of foreign law schools.” Effective immediately. BY THE COURT, (s) Michael J. Eagen Chief Justice Mr. Justice Larsen and Mr. Justice Flaherty dissent. True Copy From Record Attest: (s) Sally Mrvos Sally Mrvos, Esquire Prothonotary 25a Pa. Supreme Court Order The following sentences are added at the end of the Note to Rule 203 of the Pennsylvania Bar Admission Rules: Decisions of the Supreme Court establish that the requirement of graduation from a law school ac- credited by the American Bar Association shall be strictly observed. Appeal of Kartorie, Pa. ,406 A.2d 746 (1979); Appeal of Ferriman, Pa. ; 408 A.2d 844 (1979). See Note to Bar Adftmission Rule 205. (This Note as amended is not a part of Rule 203 of the Pennsylvania Bar Admission Rules as promulgated by the Supreme Court of Pennsylvania.) '-» . 26a Appellant’s Argument APPELLANT’S ARGUMENT * * * * * * III. TO THE DEGREE THAT APPLICANT SOUGHT TO FORCE THE SUPREME COURT OF PENNSYL- VANIA TO DECLARE UNDER WHAT CIRCUM- STANCES, IF ANY, IT WOULD “WAIVE” THE RE- QUIREMENT THAT AMERICAN LAW STUDENTS SEEKING ADMISSION TO ITS BAR BE GRADUATES OF ACCREDITED LAW SCHOOLS, THIS CASE IS MOOT On April 25, 1980, after the court below had assumed the existence of a “waiver” policy with respect to the ABA- accreditation requirement, the Supreme Court of Pennsyl- vania amended Rule 203(2) of the Pennsylvania Bar Ad- mission Rules to provide that the requirement applies “without exception.” (9b-10b) Although the stated pur- pose of the amendment is to reflect decisions of the Su- preme Court of Pennsylvania that the ABA-accreditation requirement “shall be strictly observed”’ (10b) , the amend- ment does satisfy the lower court’s order that the Supreme Court of Pennsylvania promulgate rules defining the cir- cumstances under which it will permit waiver of the ac- ceditation requirement. The “waiver” standards are now absolutely explicit: there are mo circumstances under which the ABA-accreditation requirement will be waived. The promulgation of “waiver” standards was the only relief ordered by the court below. In light of Mr. Murphy’s failure to take any steps whatsoever to appeal from the limited relief decreed by Judge Weiner (la-2a, 100a- 27a Appellant’s Argument 106a) , this case has thus become moot, since it has “‘lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law.” Hall v. Beals, 396 U.S. 45, 48 (1969). Accordingly, accepted federal practice dictates that this Court should vacate the judgment below and re- mand the case with a direction to dismiss the complaint. United States v. Munsingwear, 340 U.S. 36, 39 (1950); see Marshall v. Whittaker Corp., Berwick Forge & Fabri- cating Co., 610 F.2d 1141, 1145 (3d Cir. 1979). * eS 28a Stipulation of Facts IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Civil Action No. 79-2866 EDWARD M. MURPHY, II Plaintiff, Vv. MICHAEL J. EAGEN et al., Defendants STIPULATION OF FACTS It is hereby stipulated and agreed by and between the undersigned plaintiff and attorney for defendants that: 1. Plaintiff is a citizen and resident of the Common- wealth of Pennsylvania. 2. Plaintiff was graduated by Western State Uni- versity College of Law, located in Fullerton, California, a law school not accredited by the American Bar Associ- ation (“ABA”), in 1976. 3. Defendants are the Chief Justice and the Associ- ate Justices of the Supreme Court of Pennsylvania. 4. At all times pertinent to the complaint herein, the defendants were acting under Pennsylvania state law, 29a Stipulation of Facts specifically, their power to regulate the admission to the practice of law within the Commonwealth of Pennsylvania. 5. Sometime before October 31, 1976, plaintiff ap- plied to the Pennsylvania Board of Law Examiners (“Board”) for permission to take the Pennsylvania bar examination. 6. On November 24, 1976, plaintiff was informed by the Board that his application had been denied because he had not been graduated from a law school accredited by the American Bar Association as required by Pennsyl- vania Supreme Court Rule 8-C-2. 7. On December 17, 1976, plaintiff filed an appeal from the Board’s decision with the Supreme Court of Penn- sylvania. This appeal was denied, without opinion, on December 23, 1976. 8. Thomas Meredith Sylk was graduated by the Eastern College of Commerce and Law in 1966. At the time of his graduation, that law school was not accredited by the ABA. On September 1, 1970, that law school was merged with the University of Baltimore School of Law, another institution not accredited by the ABA. On August 17, 1972, the University of Baltimore School of Law be- came accredited by the ABA. On January 24, 1977, Sylk applied to the Board for permission to sit for the Pennsylvania bar examination. On March 18, 1977, the Board declined his application be- cause he had not been graduated from a law school ac- credited by the ABA. 9. On May 18, 1977, Sylk appealed the Board’s de- cision to the Supreme Court of Pennsylvania. | 30a Stipulation of Facts 10. On June 6, 1977, the Supreme Court of Penn- sylvania reversed the Board’s decision and permitted Sylk to sit for the Pennsylvania bar examination as of No. 376, Us. Miscellaneous Docket No. 21. 11. On September 10, 1977, after Sylk had been permitted to sit for the Pennsylvania bar examination, plaintiff again applied to the Board for permission to take the Pennsylvania bar examination. 12. On October 3, 1977, the Board notified plain- tiff that it was again denying his application because he had not been graduated from a law school accredited by the American Bar Association. 13. On February 2, 1978, plaintiff again appealed the decision of the Board to the Supreme Court of Pennsyl- vania which, by opinion filed October 5, 1978, denied the appeal. 14. The opinions and orders mentioned in this Stipulation are the only explanation of the decision to per- mit Thomas Meredith Sylk to sit for the Pennsylvania bar examination and to deny plaintiff permission to do so. (s) Edward M. Murphy, II Edward M. Murphy, II Plaintiff Pro Se 505 Lombard Street Philadelphia, Penna. 19147 (s) James D. Crawford James D. Crawford Attorney for Defendants SCHNADER, HARRISON, SEGAL & LEWIS 1719 Packard Building Philadelphia, Pennsylvania 19102 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1366%3A1. Public record. Not legal advice.