Opposition Brief — Cox v. Supreme Court of Florida

Offico-Supreme Court, US.

(2 EILED

YUN 12 1982

No. 84-1711

—_————EE——=>=>E>EEE

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

WILLIAM C. Cox,

Petitioner,

v.

SUPREME COURT OF FLORIDA

and

FLORIDA BOARD OF BAR EXAMINERS,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of Florida

BRIEF FOR RESPONDENTS IN OPPOSITION

C. GRAHAM CAROTHERS

227 South Calhoun Street

Tallahassee, Florida 32302

(904) 224-9115

Attorney for Respondents

WILSON - Eres Painting Co.. Inc. - 789-0096 - WASHINGTON. D.C. 20001

QUESTION PRESENTED

May the Supreme Court of Florida deny reciprocity to

out of state lawyers.

(i)

TABLE OF CONTENTS

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REASONS FOR DENYING THE WRIT........0000000002.....

CONCLUSION

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(iii)

11

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iv

TABLE OF AUTHORITIES

CASES Page

Attwell v. Nichols, 466 F.Supp. 206 (N.D.Ga.

SUTUTIT: : scciscaibieisihcbctlgetsaepibsnndana deasbdbinsilcasiaacdkeddemiibniaas am decom inde 8

Brown v. Supreme Court of Virginia, 414 US.

A o___RRERRNR EP natoreer aie a ETS Ft ce een ee 6

Galahad v. Weinshienk, 555 F.Supp. 1201 (D.Colo.

EEE * ics cereeniacca si ciiatacdaaiaanieiin-idiunkadan aban depdbcia 8

Goldfarb v. Virginia State Bar, 421 U.S. 773

CED siicistacsnleisitinsienicnaiceitahdae hs steibcioleas acictehianitenieblandinie 6, 10

Goldsmith v. Pringle, 399 F.Supp. 620 (D.Colo.

IE sti. Paiste eae osreb ad hc ta ccc acta aol lider a 8

Hawkins v. Moss, 503 F.2d 1171 (4th Cir. 1974)..... 7,8

Hoover v. Ronwin, —— U.S. ——, 105 S.Ct. 1338,

eR fF Be | RAS rare ee eee nen 6, 9, 10

Hughes v. Oklahoma, 441 U.S. 322 (1979) ............... 9

Hunt v. Washington State Apple Advertising Com-

We te eG yy 9 eC Ee 9

In re Florida Board of Bar Examiners, 307 So.2d

RR ERE eee a een ee 4

In re Griffiths, 418 U.S. 717 (1978) ........................... 6,7

In re Lockwood, 154 U.S. 1161 (1899) ............2-.2..... 8

In re Russell, 236 So.2d 767 (Fla. 1970) _................ 10, 11

Ktsanes v. Underwood, 467 F.Supp. 1002 (N.D.

i sahk Sc chismabigiidsen 8

Law Students Research Council v. Wadmond, 401

I sinister 6

Leis v. Flynt, 439 U.S. 488 (1979) ............. Siitieabibeisl 6, 7, 10

Loving v. Virginia, 388 U.S. 1 (1967) ..................... 7

Moore v. Supreme Court of South Carolina, 447

fg SN cll, ¢ RERROR SeenON ere 8

Murphy v. State Board of Law Examiners, 429

I Ti RS PEED sisincnetsnncsscecndetanctnsinsnis 8

Norfolk & Western Railroad Co. v. Beatty, 423

SN IY Se ii cecil ccs tieieasnsassioiecciebntascnntateniacsinta 6

Pyler v. Doe, 457 U.S. 202 (1982) ............................. 7

Ricci v. State Board of Bar Examiners, 427 F.Supp.

Ee Ce URS TED esnsntasiacsncrcsnsabbiiomsanehtadateetesthencns 8

Schware v. Board of Bar Examiners, 353 U.S. 232

PRINT? dics: scdcccstomeauscumsanabbinlaeaniaubenatedasabegsligisdaeinaiee 6, 7

v

TABLE OF AUTHORITIES—Continued

Page

Shapiro v. Cooke, 552 F.Supp. 581 (N.D.N.Y.

SIs nicihnbecierieacia a Nl ara le eA eh 8,9

Supreme Court of New Hampshire v. Piper, 53

Bais Ie Rs TR iach ckicrecsenctsenianiadinian 8

CONSTITUTIONAL, STATUTORY AND

RULE PROVISIONS

United States Constitution, Article I, Section 8 ...... 1

United States Constitution, Article IV, Section 1.. 1,2

United States Constitution, Amendment XIV........ 2

Sherman Antitrust Act of 1890, 15 U.S.C. Section

IEE Foe RTE Kao NR I 7

15 United States Code, aa 2

28 United States Code, Section 1738 ......................... 2, 8,9

Florida Constitution, Article V, Section 15 ............ 2,4, 10

Rules of the Supreme Court of Florida Relating to

Admissions to The Bar, Article I, Section 1........ 2, 4,9

Rules of the Supreme Court of Florida Relating to

Admissions to The Bar, Article I, Section 2........ 2,10

Rules of the Supreme Court of Florida Relating to

Admissions to The Bar, Article III, Section 2...... 2, 3, 4

Rules of the Supreme Court of Florida Relating to

Admissions to The Bar, Article III, Section 3... 3,4

Rules of the Supreme Court of Florida Relating to

Admissions to The Bar, Article IV, Section 1...... 3, 4

Rules of the Supreme Court of Florida Relating to

Admissions to The Bar, Article VI, Section 2......3, 5, 10

Rules of the Supreme Court of Florida Relating to

Admissions to The Bar, Article VI, Section 7...... 3, 10

Rules of the Supreme Court of Florida Relating to

Admissions to The Bar, Article VI, Section 8...... 3,5

Rules of the Supreme Court of Florida Relating to

Admissions to The Bar, Article VII, Section 1... 3,5

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-1711

WILLIAM C. Cox,

Petitioner,

Vv.

SUPREME COURT OF FLORIDA

and

FLORIDA BOARD OF BAR EXAMINERS,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of Florida

BRIEF FOR RESPONDENTS IN OPPOSITION

RULES INVOLVED

Article I, Section 8 of the United States Constitution

provides in pertinent part:

The Congress shall have power . . . to regulate com-

merce among the several states.

Article IV, Section 1 of the United States Constitution

provides in pertinent part:

2

Full faith and credit shall be given in each state to

public acts, records, and judicial proceedings of every

other state.

Amendment XIV to the United States Constitution pro-

vides in pertinent part:

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any state deprive any

person of life, liberty or property without due proc-

ess of law; nor deny to any person within its juris-

diction the equal protection of the law.

Article 15, Section 1 of the United States Code pro-

vides in pertinent part:

Every contract, combination in the form of trust or

otherwise, or conspiracy, in restraint of trade or

commerce among the several states, ... is declared

to be illegal.

Article 28, Section 1738 of the United States Code is

set forth in the text.

Article V, Section 15 of the Florida Constitution is set

forth in the text.

Article I, Section 1 of the Rules of the Supreme Court

of Florida Relating to Admissions to the Bar is set forth

in the text.

Article I, Section 2 of the Rules of the Supreme Court

of Florida Relating to Admissions to the bar states in

pertinent part:

There is hereby created a Florida Board of Bar Ex-

aminers consisting of twelve members of the Florida

Bar and three lay members of the general public.

Article III, Section 2 of the Rules of the Supreme

Court of Florida Relating to Admissions to the Bar states

in pertinent part:

No person shall be recommended by the Florida

Board of Bar Examiners to the Supreme Court of

3

Florida for admission to The Florida Bar unless such

person first produces satisfactory evidence to the

Board of good moral character and an adequate

knowledge of the standards and ideals of the profes-

a

Article III, Section 3 of the Rules of the Supreme

Court of Florida Relating ts Admissions to the Bar states

in pertinent part:

Prior to recommending an applicant for admission

to practice the profession of law in Florida, the

Florida Board of Bar Examiners shall conduct an

investigation and otherwise inquire into and deter-

mine the character, fitness, and general qualifications

of every applicant.

Article VI, Section 1 of the Rules of the Supreme

Court of Florida Relating to Admissions to the Bar states

in pertinent part:

The Florida Bar Examination shall consist of a

General Bar Examination and the Multistate Pro-

fessional Responsibility Examination (MPRE).

Section 2 continues in pertinent part:

Questions may be designated to require answers

based upon Florida case or statutory law of substan-

tial importance.

Section 7(c) reads in pertinent part:

Each applicant must attain a scaled score of 70 or

better or such scaled score as may be fixed by the

Court.

Section 8 continues in pertinent part:

Every qualified applicant who desires to repeat any

part of the General Bar Examination shall file an

Application for Admission into the General Bar Ex-

amination ....

Article VII, Section 1 of the Rules of the Supreme

Court Relating to Admissions to the Bar is set forth in

the text.

d

STATEMENT OF THE CASE

The Supreme Court of Florida and the Florida Board

of Bar Examiners (Board) accept the Petitioner’s State-

ment of the Case and would add the following material

facts:

The admission of attorneys to the practice of law in

Florida is a judicial function belonging exclusively to the

Supreme Court of Florida. Article V, Section 15 of the

Florida Constitution states:

The supreme court shall have exclusive jurisdiction

to regulate the admission of persons to the practice

of law and the discipline of persons admitted.

The Board is charged by the Supreme Court with the re-

sponsibility of determining an applicant’s fitness and

character to practice law.' The court requires this to

be accomplished through a character investigation? and

a written examination.’ This is required of all applicants.

Article I, Section 1 of the Rules of the Supreme Court of

Florida Relating to Admissions to the Bar provides:

The admission of attorneys to the practice of the

profession of law is a judicial function. All indi-

viduals who seek the privilege of practicing law in

the State of Florida shall submit to the Florida Bar

Examination.

(One narrow exception to this rule deals with those per-

sons who received a diploma from a Florida law school

prior to 1954. See e.g. In re Florida Board of Bar Ex-

aminers, 307 So.2d 165 (Fla. 1975). This rule is in-

applicable in the instant case.)

The written examination consists of three parts: the

Multistate Professional Responsibility Examination, and

1 Fla. Sup. Ct. Bar Admiss. Rule, art. III § 2.

2 Fla. Sup. Ct. Bar Admiss. Rule, art. III § 3.

§ Fla. Sup. Ct. Bar Admiss. Rule, art. VI § 1.

5

a General Bar Examination consisting of Part A pro-

mulgated by the Board and including certain topics of

Florida law, and Part B consisting of the Multistate Bar

Examination. The Board has limited discretion on the

content and grading of the examination.‘ Upon success-

ful completion of the character investigation and exami-

nation, the Board recommends a candidate for admis-

sion. The Supreme Court of Florida has final authority

on all admissions and rule changes. Article VII, Section

1 of the Rules of the Supreme Court of Florida Relating

to Admissions to the Bar states, in pertinent part:

Every applicant who has complied with the re-

quirements of the applicable rules for admission into

the Florida Bar Examination, who has attained pass-

ing scores on the examination required, who has met

the requirements as to character and fitness...

shall be recommended by the Florida Board of Bar

Examiners to the Supreme Court of Florida for ad-

mission to the Florida Bar. If the Court is satisfied

as to the qualifications of the application so recom-

mended, an order of admission shall be made and

entered in the minutes of the court....

Petitioner has taken and failed Part A of the Florida

Bar on three separate occasions. He has taken Part B

and failed on two occasions. He has taken the Multi-

state Professional Responsibility Examination twice, pass-

ing once. Upon denial of admission in 1984, Petitioner

petitioned the Supreme Court of Florida for reconsidera-

tion of his application. He did so in lieu of reapplying

to take the written examination.°

On February 5, 1985, the Supreme Court of Florida

denied Petitioner’s petition without comment. Petitioner

sought a Writ of Certiorari from this Court on April 30,

1985.

4 Fla. Sup. Ct. Bar Admiss. Rule, art. VI § 2(c).

5 Fla. Sup. Ct. Bar Admiss. Rule, art. VI § 8.

6

SUMMARY OF ARGUMENT

Petitioner seeks review of Florida’s policy of denying

reciprocity to out-of-state lawyers, claiming it violates his

constitutional rights and antitrust laws. However, it is

settled that a state has a legitimate interest in the com-

petency of its bar and that rules to insure competency

need only have a rational basis to be acceptable. Also,

this Court has decided that rules prescribed by a Board

subject to the state supreme court are state actions and

therefore immune from antitrust laws.

REASONS FOR DENYING THE WRIT

I. THE SUPREME COURT OF FLORIDA HAS NOT

DECIDED AN IMPORTANT QUESTION OF FED-

ERAL LAW WHICH HAS NOT BEEN SETTLED BY

THIS COURT, NOR HAS IT DECIDED A FEDERAL

QUESTION IN A WAY THAT CONFLICTS WITH

APPLICABLE DECISIONS OF THIS COURT.

It is well settled that a state has broad power to pre-

scribe the qualifications for admission to practice in its

bar. Leis v. Flynt, 439 U.S. 488 (1979), Goldfarb v.

Virginia State Bar, 421 U.S. 773 (1975), In re Griffiths,

413 U.S. 717 (1973), Law Students Research Council v.

Wadmond, 401 U.S. 154 (1971), Schware v. Board of

Bar Examiners, 353 U.S. 232 (1957). This Court con-

sistently has upheld admission requirements which may

operate to exclude out-of-state attorneys. Hoover v.

Ronwin, —— U.S. ——, 105 S.Ct. 1338, 80 L.Ed.2d 590

(1984) (Arizona bar examination grading procedures),

Leis v. Fiynt, 489 U.S. 4388 (1979) (Ohio court’s deci-

sion not to admit attorney pro hac vice), Norfolk & West-

tern Railroad Co. v. Beatty, 423 U.S. 1009 (1975), sum-

marily affg 400 F.Supp. 234 (S.D.Ill.) (Ohio statute

limiting appearances of out-of-state attorneys), Rrown v.

Supreme Court of Virginia, 414 U.S. 1034 (1973), sum-

marily affg 359 F.Supp. 549 (E.D.Va.) (Virginia re

quirement making reciprocity conditional on intent to

7

practice in the state). In fact, Florida’s rule not extend-

ing reciprocity has been implicitly upheld. Leis v. Flynt,

439 U.S. 438 (1979). At 439 U.S. 444, note 5, this Court

stated:

If accepted, the constitutional rule advanced by the

dissenting opinion would . . . undermine the policy

of those states which do not extend reciprocity to

out-of-state lawyers, see, e.g. Ariz. Sup. Ct. Rule 28

(c)1; Fla Rules of the Sup. Ct. Relating to Admis-

sions to the Bar, Art. I § 1. (emphasis added).

Petitioner argues that by not having a reciprocity

agreement the Supreme Court of Florida and the Florida

Board of Bar Examiners have violated the Fourteenth

Amendment, Full Faith Credit Clause (Art. IV §1) and

Commerce Clause (Art. I §8) of the United States Con-

stitution and the Sherman Antitrust Act (15 U.S.C. 1

et seq. 1976 ed.). However, this Court and lower federal

courts have decided that requirements similar to those

in the instant case are constitutional and do not violate

antitrust provisions.

Two tests are used to analyze claims under the Four-

teenth Amendment, the “strict scrutiny” test and the

“rational basis” test. Strict scrutiny has been used only

with classifications involving invidious discrimination

against an insular minority, such as race, Loving v. Vir-

ginia, 388 U.S. 1 (1967) or alienage, In re Griffiths, 413

U.S. 717 (1973). All other classifications must only be

rationally related to a valid state objective. In re

Griffiths, 413 U.S. 717 (1973). Licensing statutes have

consistently been held to be a legitimate state purpose

and only require a rational basis. Pyller v. Doe, 457 U.S.

202 (1982), Schware v. Board of Bar Examiners, 353

U.S. 232 (1957).

Lower courts also agree that licensing requirements

are constitutional using the rational basis test. Require-

ments such as in the instant case have been upheld de-

spite claims that they denied equal protection, Hawkins

8

v. Moss, 503 F.2d 1171 (4th Cir. 1974), Shapiro v. Cooke,

552 F.Supp. 581 (N.D.N.Y. 1982) aff'd 702 F.2d 46,

Ktsanes v. Underwood, 467 F.Supp. 1002 (N.D.IIl.

1979), Attwell v. Nichols, 466 F.Supp. 206 (N.D.Ga.

1979) aff’d 608 F.2d 228. Murphy v. State Board of Law

Examiners, 429 F.Supp. 16 (E.D.Pa. 1977), Moore v.

Supreme Court of South Carolina, 447 F.Supp. 527

(D.S.C. 1977) aff'd 577 F.2d 735, cert. den. 439 U.S.

984, Goldsmith v. Pringle, 39 F.Supp. 620 (D.Colo.

1975), due process, Galahad v. Weinshienk, 555 F.Supp.

1201 (D.Colo. 1983), Attwell v. Nichols, supra, Moore v.

Supreme Court of South Carolina, supra, and protection

under the privileges and immunities clause Hawkins v.

Moss, supra, Galahad v. Weinshienk, supra, Shapiro v.

Cooke, supra. This Court has specifically excluded these

types of rules from challenge under the Privileges and

Immunities Clause. Supreme Court of New Hampshire

v. Piper, 53 L.W. 4238, 4241 n.16 (March 4, 1985). In

addition, lower courts are in agreement that licensing re-

quirements do not infringe on the right to travel.

Hawkins v. Moss, supra, Shapiro v. Cooke, supra, Moore

v. Supreme Court of South Carolina, supra.

Licensing requirements have been held not to violate

the Full Faith and Credit Clause of the United States

Constitution. In Jn re Lockwood, 154 U.S. 1161 (1899),

it was held that the right to practice law in a state does

not attach until the applicant has fulfilled the profes-

sional or moral qualifications as prescribed by that state.

154 U.S. at 117. Lower courts have reached similar con-

clusions. Galahad v. Weinschienk, 555 F.Supp. 1201

(D.Colo. 1983), Ricci v. State Board of Bar Examiners,

427 F.Supp. 611 (E.D.Pa. 1977) vacated on other

grounds 569 F.2d 782. Congress has prescribed the

manner in which full faith and credit is to be afforded

to proceedings in other jurisdictions:

Such acts, records and judicial proceedings or copies

thereof so authenticated, shall have the same full

,

«

9

faith and credit in every court within the United

States and its Territories and Possessions as they

have by law or usage in the courts of such state,

Territory or Possession from which they are taken.

28 U.S.C. § 1738 (1976 ed.).

A state may only grant a license to practice within its

borders. The Full Faith and Credit Clause may not be

used to extend that license into other jurisdictions.

It is likewise settled that non-discriminatory require-

ments do not violate the Commerce Clause of the United

States Constitution. Hughes v. Oklahoma, 441 U.S. 322

(1979), Hunt v. Washington State Apple Advertising

Commission, 432 U.S. 333 (1977). Florida requires all

bar applicants to pass an examination, testing the ap-

plicant’s knowledge of both federal law and Florida law.

Art. I §1, Fla. Sup. Ct. Bar Admiss. Rules. The rule

applies equally to residents as well as non-residents. It

is within a state’s prerogative to require an examination.

Shapiro v. Cooke, 552 F.Supp. 581 (N.D.N.Y. 1982).

aff'd 702 F.2d 46.

Finally, this Court has recently decided a substantially

similar case and found licensing requirements did not

violate the Sherman Antitrust Act. (15 U.S.C. §1 et

seq.) Hoover v. Ronwin, —— U.S. ——, 105 S.Ct. 13388,

80 L.Ed.2d 594 (1984). In Hoover, Ronwin complained

that the Arizona Supreme Court’s Committee on Exami-

nations and Admissions (Committee) had developed a

grading process that was unfair. Although an arm of

the Supreme Court of Arizona, Ronwin claimed the Com-

mittee’s rules did not rise to the level of state policy. As

such, Ronwin asserted, the Committee was not immune

from antitrust liability because their rules did not equal

state action. The Hoover court disagreed, citing the com-

plete control the Arizona Supreme Court had in deciding

the scope of the Committee’s authority and admissions of

applicants. 80 L.Ed.2d 590, 605 n.30.

10

Article V, Section 15 of the Constitution of Florida

gives the Supreme Court of Florida complete control of

the bar admissions process. Like Arizona, the Supreme

Court of Florida has delegated some authority to a Board

in order to expedite the admissions process. Art. I, § 2,

Fla. Sup. Ct. Bar. Admiss. Rules. However, this Board’s

authority is even more limited than the Arizona Commit-

tee. The Board may not determine the passing score,

Art. VI § 7(c), Sup. Ct. Bar Admiss. Rules, nor does it

have unlimited discretion in selecting the examination’s

content. Art. VI § 2, Fla. Sup. Ct. Bar Admiss. Rules.

Thus, any action by this Board must fall within the scope

of Hoover. State regulation of lawyers is constitutional

even though it may decrease competition. Goldfarb v.

Virginia State Bar, 421 U.S. 773 (1975).

Certiorari should not be granted in the instant case.

This Court has previously dealt with the questions pre-

sented by petitioner. Likewise, lower courts are in har-

mony as to the invalidity of petitioner’s claims. Reciproc-

ity is not a right demanded by the Constitution. Leis v.

Flynt, 439 U.S. 488, 443 (1979). This Court has im-

plieitly upheld Florida’s policy of not extending reciproc-

ity. Leis v. Flynt, 439 U.S. 4388, 444 n.5 (1979). In

addition, the Supreme Court of Florida has explicitly recog-

nized the constitutionality and overall fairness of Flor-

ida’s policy requiring a written examination of all bar

applicants. In Jn re Russell, 236 So.2d 767, 769 (Fla.

1970), the Supreme Court of Florida stated:

Bar admission rules are matters solely within the

province of the states. . . . No federal interests arise

save when federal guarantees of due process and

equal protection appear to be thwarted. . . . We see

it clearly as our duty to admit to this special posi-

tion of obligation and trust only those applicants,

whether from Florida schools or elsewhere, who can

satisfactorily demonstrate their credentials through

a test of competence given under our supervision

and control. We have examined our present policy

1]

anew and have determined that our rules and ex-

aminations are administered with fairness to all and

favor to none. We have reviewed statistics on rec-

ord with the Board of Bar Examiners here in Talla-

hassee, and we have found that currently, and for

the past ten years, an applicant coming from out-of-

state has had relatively the same high chance of

passing the Bar examination as any other applicant.

236 So.2d at 769.

CONCLUSION

This Court has decided that denial of reciprocity does

not violate constitutional rights. A written examination

of all applicants bears a rational relationship to Florida’s

legitimate interest in a competent bar. In addition, ac-

tion by a Board under the direct control of the state

supreme court is state action, exempted from antitrust

liability. Accordingly, the Petition for a Writ of Certi-

orari to the Supreme Court of Florida should be denied.

Respectfully submitted,

C. GRAHA™M CAROTHERS

227 South Calhoun Street

Tallahassee, Florida 32302

(904) 224-9115

Attorney for Respondents