Petition for Writ of Certiorari — Schumacher v. Nix

NO.

Bopreme Court, U.S,

FILED

OCT 6 1992

ee

;

el IN THE SUPREME COURT OF THE UNI

Oy OCTOBER TERM 1992--

i i

DANA SCHUMACHER AND LEROY HODGE,

PETITIONERS

Vv.

ROBERT N.C. NIX, JR., ET

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JULES LOBEL

Counsel of Record

University of Pittsburgh

School of Law

3900 Forbes Avenue

Pittsburgh, Pennsylvania 15260

412-648-1375

QUESTIONS PRESENTED

Whether Pennsylvania may bar attorneys

from other states from practicing law

in Pennsylvania when Pennsylvania has

determined that those attorneys are

competent to take the Pennsylvania Bar

Examination, but nonetheless

disqualifies them from taking the

examination for reasons that have

nothing to do with the attorneys'

competence or fitness to practice law

in Pennsylvania?

Whether the State's reciprocity

interest set forth by the Court of

Appeals in upholding Pennsylvania's

Classification scheme represents a

legitimate state interest that may

reasonably have been the purpose or

policy of the Pennsylvania Supreme

Court?

II

PARTIES TO THE PROCEEDINGS

The Petitioners are Dana Schumacher

and Leroy Hodge.

The Respondents are Robert N.C. Nix,

Jr., Chief Justice of the Supreme Court of

Pennsylvania, Rolf Larson, Justice of the

Supreme Court of Pennsylvania, John P.

Flaherty, Justice of the Supreme Court of

Pennsylvania, James T. McDermott, Justice

of the Supreme Court of Pennsylvania,

Stephen A. Zappala, Justice of the Supreme

Court of Pennsylvania, Nicholas P.

Papadakos, Justice of the Supreme Court of

Pennsylvania, Ralph J. Cappy, Justice of

the Supreme Court of Pennsylvania, and

Patrick Tassos, Executive Director of the

Pennsylvania Board of Law Examiners.

III

TABLE OF CONTENTS

Page

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CONSTITUTIONAL PROVISIONS AND

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REASONS FOR GRANTING THE PETITION . . 12

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TABLE OF AUTHORITIES

Page

Cases:

Allied Stores of Ohio, Inc. v.

Bowers, 3586 U.S. S22 (1959)... « 35

Attorney General of New York v.

Soto-Lopez, 476 U.S. 898

(1986) ee ee ser iz, 16, 47

Goldsmith v. Pringle, 399 F. Supp. 620

(O. Goole. 8975). « 6 «we we «es Oy S28

Great Atlantic & Pacific Tea Co. v.

Cottrell, 424 U.S. 366 (1976) ... 22

Leis v. Flynt, 439 U.S. 438 (1979) . . 20

Lowrie v. Goldenhersh, 716 F.2d 401

(Fen Cie. 3965) « « « «© « «© «© «© F3y 22

Memorial Hospital v. Maricopa County,

€iS U.%. 236 t(id74a) .. «ss 48, 316, 17

Nordlinger v. Hahn, 60 U.S.L.W. 4563

(1992) ee oe ee ee a ee ee ee ae ee

Plyler v. Doe, 457 U.S. 202 (1982) .. 22

San Antonio School District v.

Rodriquez, 411 U.S. 1 (1973) oe ae

Schware v. Board of Bar Examiners, 353

O80: Se Ee) 2 ee et ee ae 2

Shenfield v. Prather, 387 F. Supp. 676

(S.0. Mies. 1976). » «5 « « »& 2B, 22

Sosna v. Iowa, 419 U.S. 393 (1975) .. 16

V

Supreme Court of New Hampshire v. Piper,

470 U.S. 274 (1985) 21

Zobel v. Williams, 457 U.S. 55 (1982) . 14

Constitution, statutes and regulations:

U.S. Constitution, Article IV... 23, 25

U.S. Constitution, XIV Amendment . «= => ee

Pa. Bar 203(a)(2)(i), (ii) - + »« « passim

Pa. Ber 265. + « Ss we aw es Se 6 & eee ee

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1992

DANA SCHUMACHER & LEROY HODGE

V.

ROBERT N.C. NIX, JR., ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Jules Lobel, Esq., on behalf of Dana

Schumacher and Leroy Hodge, petitioners

for a writ of certiorari to review the

judgment of the United States Court of

Appeals for the Third Circuit in this

case.

OPINIONS BELOW

The Court of Appeals opinion at issue

here (App. A, al-a28) is reported at 965

F.2d 1262. The District Court's opinion

in this case (App. B, a29-a47) and the

Magistrate's report (App. C, a48-a72) are

unreported.

2

JURISDICTION

The judgment of the Court of Appeals

(App. E, a75-a76) was entered on June 3,

1992. A timely petition for rehearing was

denied on July 8, 1992 (App. D, a73-a74).

The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS AND REGULATIONS

INVOLVED

The Equal Protection Clause of the

Fourteenth Amendment, the Article IV

Privileges and Immunities Clause and the

Relevant Pennsylvania Bar Admission Rules

are reproduced at App. F, a77 and App. G,

a78-a827

STATEMENT

1. This case arises out of a

Pennsylvania Bar Admission Rule that bars

certain attorneys from practicing law in

Pennsylvania who are experienced, capable

3

and accomplished practitioners in other

states and whom Pennsylvania has

determined are competent to take its bar

examination. Pennsylvania will not permit

these attorneys to take its bar

examination simply because the state in

which they practiced law does not allow

attorney applicants from Pennsylvania to

be admitted to its bar without passing an

examination.

Petitioners Dana Schumacher and Leroy

Hodge are attorneys who are admitted to

the bar of California and practiced law

continuously in California for over five

years. Both attended a law school that

was not accredited by the American Bar

Association. Both have taken and passed

the California Bar Examination. In

addition to being members in good standing

of the Bar of California, Schumacher and

Hodge have also been admitted to the U.S.

4

District Courts for the Central District

of California, the Western District of

Pennsylvania, the U.S. Court of Appeals

for the Ninth and Third Circuits and the

U.S. Supreme Court.

Petitioner Schumacher moved to

Pennsylvania in 1987 to live with her

husband, who had procured employment in

Pennsylvania. She applied to sit for the

Pennsylvania Bar Examination in 1988, and

her application was denied by the

Pennsylvania Board of Law Examiners.

Petitioner Hodge has not applied for

permission to sit for the Pennsylvania Bar

Examination because he believes it would

be futile.

2. The Pennsylvania Bar Rules provide

that recent law graduates must have

graduated from an ABA-approved law school

in order to take the Pennsylvania Bar

Examination. Pa. Bar 203(a)(2)(i). (App.

5

G, a78) However, Pennsylvania has also

determined that experienced attorneys who

are graduates of unaccredited law schools

are qualified to take the Pennsylvania

bar. Pa. Bar 203(a)(2)(ii) (App. G,

a78-a79). Despite Pennsylvania's

recognition that experienced lawyers who

are graduates of non-ABA accredited law

schools are competent to take its bar

examination, the state does not allow all

such out-of-state attorneys do so.

Pennsylvania Bar Rule 203(a)(2)(ii)

provides that attorneys who are members in

good standing of the bar of and have

practiced law in another state for more

than five years may take the Pennsylvania

Bar Examination, provided that the other

State is a reciprocal state. Reciprocal

State is defined as a state having a

reciprocal agreement or arrangement with

Pennsylvania concerning admission to the

bar. (App. A, a4-a5) As the Court of

Appeals determined, "in practice, the

Pennsylvania Board of Law Examiners has

accorded reciprocal status to those states

which permit experienced Pennsylvania

attorneys who are graduates of accredited

law schools to waive into their bar

without taking an examination." (App. A,

a5)

California does permit attorneys from

other states who attended non-ABA

accredited law schools to take its bar

examination. However, California does not

allow attorneys from other states who are

graduates of accredited law schools to

waive into its bar without taking an

examination. Therefore, California is not

considered by Pennsylvania to be a

"reciprocal" state for purposes of

Pennsylvania Bar 203(a)(2)(ii). Since

California is not a reciprocal state under

Pennsylvania's rules, Petitioner

Schumacher was denied permission to sit

for the Pennsylvania Bar Examination,

despite the fact that she met the

competency and fitness requirements of

Rule 203(a)(2)(ii). Had she practiced law

in the reciprocal state of West Virginia

she would have been permitted to sit for

the bar examination.

3. On August 29, 1990, Schumacher

filed a complaint for declaratory and

injunctive relief in the United States

District Court for the Western District of

Pennsylvania claiming that Pa. BAR Rule

203 violated the Equal Protection, Due

Process and Privileges and Immunities

Clauses of the United States Constitution.

On December 26, 1990, a second amended

complaint was filed in which Leroy Hodge

was added as a plaintiff.

8

The parties' cross-motions for summary

judgment were referred to Magistrate

Lancaster. On May 20, 1991, the

Magistrate issued his report recommending

that defendants' motion for summary

judgment be granted. The Magistrate

concluded that the classification

contained in Rule 203(a)(2)(ii) between

graduates of non-ABA accredited law

schools who practiced law in a non-

reciprocal state and those who practiced

in a reciprocal state was not related to

the state's interest in assuring a

competent bar. The Magistrate did

conclude that the Rule was "rationally

related to a valid state objective, i.e.,

gaining the mutual benefit for

Pennsylvania's similarly educated

attorneys." (App. C, a65)

On August 27, 1991, after considering

written objections to the Magistrate's

Be

9

report, the District Court granted

defendants' motion for summary judgment.

(b) Plaintiff appealed to the Court

Of Appeals, which affirmed the District

Court. The Court of Appeals found that

plaintiff's right to travel was not

implicated and that therefore rational

basis review applied. The Court also

concluded that Pennsylvania had determined

that attorneys having petitioners'

qualifications were competent to take its

bar examination and that therefore Rule

203(a)(2)(ii) was not related to the

state's interests in assuring a competent

bar. (App. A, al9, n.11) The Court then

held that Rule 203(a)(2)(ii) was

rationally related to a legitimate

governmental interest in securing

advantages for its attorneys who seek to

practice elsewhere. The Court however

disagreed with the Magistrate's holding

eect crn ener

10

that Pennsylvania's rules rationally

furthered the state's objective in gaining

a "mutual benefit for Pennsylvania's

Similarly educated attorneys." The Court

of Appeals found that the challenged rule

did not further mutual treatment for

Similarly educated attorneys in that "it

is difficult to glean any nexus between

whether a state has reciprocity with

Pennsylvania and whether it accords mutual

treatment to Pennsylvania attorneys who

are graduates of unaccredited law

schools." (App. A, a22) There is simply

no factual correlation between whether a

state is "reciprocal" and whether it would

allow Pennsylvania attorneys who are

graduates of unaccredited law schools to

become members of their bar, id. Thus,

the Court of Appeals concluded that the

Board of Law Examiners has "conditioned

the grant of reciprocal status on whether

ll

a state accords mutual treatment to

Pennsylvania attorneys who are graduates

of accredited law schools without regard

to whether that state accords mutual

treatment to Pennsylvania attorneys who

are graduates of unaccredited law

schools." (App. A, a23)

The Court of Appeals, however,

articulated another state reciprocity

interest rationally furthered by Rule

203(a)(2)(ii), an interest explicitly

rejected by the Magistrate as "totally

unfounded in the record," (App. C,

a68-a69) and never argued by the

defendants in the courts below. The Court

found that, by denying graduates of

unaccredited law schools who practiced law

in non-reciprocal states the opportunity

to take the Pennsylvania Bar Examination,

Pennsylvania was hoping to "entice" those

states into allowing experienced

12

Pennsylvania's attorneys who graduated

from ABA accredited law schools to become

members of their bar without taking any

examination. (App. A, a25) Since the

Rule served this "reciprocity" interest,

the Court of Appeals affirmed the District

Court's grant of defendant's motion for

Summary judgment. On July 8, 1992, the

Court denied the plaintiff's petition for

rehearing and suggestion for rehearing en

banc. (App. D, a73-a74)

REASONS FOR GRANTING THE PETITION

1. This Court should grant the

petition for writ of certiorari because

the Court of Appeals decision conflicts

with this Court's decisions in Schware v.

Board of Bar Examiners, 353 U.S. 232, 239

(1957); Memorial Hospital v. Maricopa

County, 415 U.S. 250, 257 (1974) and

Attorney General of New York v. Soto-

13

Lopez, 476 U.S. 898 (1986). The Court of

Appeals decision also conflicts with the

right to travel analysis contained in

several Court of Appeals and District

Court decisions, Lowrie v. Goldenhersh,

716 F.2d 401, 412, 414 (7th Cir. 1983);

Shenfield v. Prather, 387 F. Supp. 676,

685-86 (N.D. Miss. 1974); Goldsmith v.

Pringle, 399 F.2d Supp. 620, 625 (D. Col.

1975).

The Court of Appeals has held that a

state may bar an attorney from another

state from practicing law in its state

even where the state agrees that the

attorney possesses the necessary

competency and fitness to take its bar

examination. That ruling strikes at the

fundamental precepts of our nation as a

federal union. Indeed "[I]t is difficult

to imagine a right more essential to the

Nation as a whole than the right to

14

establish residence in a new State."

Zobel v. Williams, 457 U.S. 55, 76-77 (J.

O'Connor, concurring). Yet the Court of

Appeals decision permits Pennsylvania to

force an experienced lawyer from another

state to choose between moving with her

family to establish residence in

Pennsylvania, and retaining her

profession. It permits Pennsylvania to

force such a draconian choice on

petitioners even though the State agrees

that they possess the necessary competency

and fitness requirements to take the state

bar examination.

(a) In Schware v. Board of Bar

Examiners, 353 U.S. 232, 239 (1957) this

Court held that "[a] State can require

high standards of qualification, such as

good moral character or proficiency in its

law, before it admits an applicant to the

bar, but any qualification must have a

a |

15

rational connection with the applicant's

fitness or capacity to practice law."

(emphasis added). The Court of Appeals

recognized that Rule 203(a)(2)(ii)

"evinces an administrative judgment that

graduates of unaccredited law schools who

are members in good standing of the bar of

another state and have practiced law there

for five years are competent to practice

law if they pass the Pennsylvania bar

examination." (App. A, al9, n.11).* Yet

the Court held that Pennsylvania's

reciprocity interest was a legitimate

reason to deny petitioners the opportunity

to take the bar examination and practice

law in Pennsylvania. The Court of

‘steven Bosch, the former Secretary to the

Board of Law Examiners had testified to that

effect. Bosch Deposition (C.A. App. 63-64).

eee

16

Appeals' ruling directly conflicts with

this Court's decision in Schware.

(b) The Court of Appeals decision,

reflecting difficulties it and other lower

courts have had in applying this Court's

right to travel analysis, apparently

believed that this Court's right to travel

cases only requires heightened scrutiny

when the challenged classification is

based on residency. (App. A, al2)

However, this Court has on several

occasions stated that heightened scrutiny

is appropriate where a statutory

Classification "penalize[s]" or "actually

deters travel," or "when im ding travel

is its primary objective." Attorney

General of New York v. Soto-Lopez, 476

U.S. 898, 903 (1986) (plurality opinion).

See also id. at 920-21 (J. O'Connor,

dissenting) (articulating test); Memorial

Hospital v. Maricopa County, 415 U.S. 250,

--

ee |

17

257 (1974). Thus, statutory

Classifications that severely burden or

actually deter the exercise of one's

ability to relocate implicate the right to

travel and demand heightened scrutiny.

Attorney General of New York v. Soto

Lopez, supra 476 U.S. at 907-909

(permanent deprivation of a significant

benefit operates to penalize appellees for

exercising their right to migrate) ;

Memorial Hospital v. Maricopa County,

supra 415 U.S. at 257. Compare with Sosna

v. Iowa, 419 U.S. 393, 410 (1975) (the

"gravamen" of prospective divorcee's

Claim, "is not total deprivation... but

only delay."). See also Attorney General

Of New York v. Soto-Lopez, 476 U.S. 898,

921 (J. O'Connor, dissenting) ("it is fair

to infer that something more than a

negligible or minimal impact on the right

18

to travel is required before strict

scrutiny is applied").

The record before the Court of

Appeals--ignored by that Court--clearly

indicated that even persons with

substantial family ties to Pennsylvania

will be severely deterred from relocating

if it means giving up a profession that

they have practiced for many years.*

Indeed, Schumacher will in all likelihood

be forced to leave the state if she is not

permitted to sit for the Pennsylvania Bar

Examination.* To require experienced

“Stephen Clare, a California attorney who

graduated from a non-ABA accredited law school in

California, asserts that, despite growing up in the

Pittsburgh area where his parents and brother and

Sister currently reside, he decided not to relocate

to Pittsburgh, in large part because of Rule

203(a)(2)(ii), Clare Declaration (C.A. App. 84-85).

At present, Schumacher is employed by

Pittsburgh Neighborhood Legal Services. Because

she is not admitted to the Bar of Pennsylvania, she

is confined to participating in administrative

hearings. Her supervisors at Neighborhood Legal

Services Association have informed her that, while

they consider her to be a capable, competent and

19

attorneys from another state to forego

their profession, or fully ignore their

professional development and experience

and begin all over as a first year law

student certainly does not merely

incidentally hinder travel but "actually

deters" or substantially deters those

attorneys' relocation to another state.

To totally deny competent attorneys the

right to practice his or her profession is

certainly as great a penalty or deterrent

as those found in prior right to travel

cases and constitutes an undue burden on

petitioners' right to travel, which should

require heightened equal protection

scrutiny of the state's classification.

While the Court of Appeals correctly

noted that the Constitution does not

ethical attorney who is well qualified to practice

law in Pennsylvania, they will probably have to

terminate her employment unless she can become

admitted to the Pennsylvania Bar. If that occurs

she will probably leave the state. Schumacher

Declaration (C.A. App. 86-87).

20

"require that because a lawyer has been

admitted to the bar of one state, he or

she must be allowed to practice in

another" (citing Leis v. Flynt, 439 U.S.

438, 443 (1979) (Apv. A, al3), that is not

petitioners' claim here. Petitioners do

not question Pennsylvania's right to

maintain whatever qualifications it

believes are necessary to ensure a

competent and ethical bar, even if those

requirements exclude attorneys from other

states. Petitioners argue merely that an

out-of-state attorney who meets

Pennsylvania's character and fitness

requirements cannot be totally precluded

from practicing in Pennsylvania for

reasons unrelated to his or her fitness or

capacity to take the state bar

examination. Only such competency or

fitness concerns constitute a sufficient

government interest to justify the

21

substantial interference with a person's

ability to relocate caused by barring a

professional from even taking an

examination to be admitted to practice in

the state to which he or she seeks to

relocate. Here, as the Court of Appeals

found, Pennsylvania has determined that

plaintiffs are competent to take the bar

examination. As this Court said in

Schware v. Board of Bar Examiners, supra

353 U.S. at 239, "[c]Jertainly the practice

of law is not a matter of the state's

grace." Schware, supra, at 239. See also

Supreme Court of New Hampshire v. Piper,

470 U.S. 274, 281 (1985) (opportunity to

practice law is a fundamental right for

purposes of Privileges and Immunities

Clause).

(c) The rationale of other Court of

Appeals and District Court rulings

affirming various state bar admission

22

rules conflicts with the Third Circuit's

opinion in this case. Those other courts

have explicitly distinguished between

totally barring a class of attorneys from

practicing law in the state and simply

requiring them to take an examination.

Lowrie v. Goldenhersh, 716 F.2d 401, 412,

414 (7th Cir. 1983); Shenfield v. Prather,

387 F. Supp. 676, 685-86 (N.D. Miss.

1974); Goldsmith v. Pringle, 399 F. Supp.

620, 625 (D. Colo. 1975). These cases

implicitly hold that a total bar would

implicate a lawyer's right to travel and

thus require heightened scrutiny. See

e.g. Shenfield v. Prather, supra 387 F.

Supp. at 686 ("[{T]he ability to practice

law without undergoing an examination of

professional :competence--is not

sufficiently vital to infringe the

plaintiff's fundamental right to

travel."). For example, in Lowrie v.

23

Goldenhersh, supra 716 F.2d at 412, the

Seventh Circuit held that a "critical

difference" existed between rules

resulting in “absolute barriers to bar

admission" and those that simply require

applicants to take and pass the bar

examination.* The Third Circuit here

obliterated that critical distinction.

(d) Pennsylvania Bar Rule 203 also

violates the Privileges and Immunities

Clause of Article IV of the Constitution.

Pennsylvania distinguishes among attorneys

whom it considers competent to take the

Pennsylvania Bar Examination, permitting

‘This Court has, in a wide variety of

contexts, recognized the distinction between a

total bar and lesser burdens on an individual's

ability to engage in a particular activity.

Compare Plyler v. Doe, 457 U.S. 202 (1982), with

San Antonio School District v. Rodriquez, 411 U.S.

1 (1973). See also Great Atlantic & Pacific Tea

Co. v. Cottrell, 424 U.S. 366, 378-79 (1976)

(striking down a reciprocity provision that

prohibited the sale of out-of-state milk products

in Mississippi unless the sister state accepted

Mississippi's milk on a reciprocal basis).

24

all such attorneys to take the examination

except out-of-state attorneys who attended

non-ABA accredited law schools and who

practiced law in non-reciprocal states.

While it is theoretically possible that

some attorneys in petitioners’ class are

residents of Pennsylvania and practice law

in a neighboring non-reciprocal state, it

is clear that the overwhelming percentage

of the attorneys who attended non-ABA

accredited law schools and practice law in

a non-reciprocal state are not residents

of Pennsylvania.® Thus, as a practical

matter, for Pennsylvania to permit all

°Since Ohio, Virginia, West Virginia and New

York are reciprocal states, and New Jersey does not

permit non-ABA accredited law school graduates to

practice law, the only plausible State which might

contain attorneys similarly situated to petitioners

who reside in Pennsylvania is Maryland. (App. A,

a22-a23, n.13-15) The only other means by which a

person could be a resident of Pennsylvania and be

barred by Rule 203(a)(ii)(2) is if like petitioners

here, they relocate to Pennsylvania after having

practiced law in a non-reciprocal state. Given

petitioners experience, that is an extremely

unlikely possibility in the future.

25

attorneys or law graduates whom it deems

competent to practice law in Pennsylvania

to take its bar examination except this

One group is a classification based on

residency and violates the Privileges and

Immunities Clause of Avtacie IV. This is

particularly true when the purpose of Rule

203 articulated by the Court of Appeals is

precisely to discriminate against certain

out-of-state residents to entice the

States in which these residents reside to

grant favorable treatment to Pennsylvania

residents.

(e) The conflict between Pennsylvania

Rule 203(a)(2)(ii) and the nature of our

federal union is further illustrated by

comparing Pa. Bar 203 and Pa. Bar 205.

Rule 205 allows United States citizens and

foreigners who are graduates of foreign

law schools to take the Pennsylvania Bar

Examination after having completed 24

26

credit hours in an accredited American law

school. (App. G, a81-a82)

Pennsylvania Rules 203 and 205

discriminate against certain domestic law

graduates as opposed to foreign law

graduates in two respects. First, Rule

205 does not require that the foreign

state grant reciprocity to U.S. lawyers in

order to obtain a benefit for graduates of

its law schools. It thus treats the

sister state of California more harshly

than a foreign country, an apparently

irrational result inconsistent with the

Federal Union.

Second, the Rules totally bar

experienced attorneys who have practiced

in a sister state, yet provide more

liberal treatment to graduates of foreign

law schools who have never practiced law

but simply attended law schools abroad and

were admitted to the bar, or in some cases

27

(involving U.S. citizens) were never even

admitted. Had Petitioner Schumacher gone

to law school in Mexico and never

practiced law ewen a single day, she would

now be eligible to take the Pennsylvania

bar examination after completing 24 credit

hours. That she chose to go to school in

a non-ABA accredited California school,

has passed the California Bar Examination,

and has practiced law for many years in

California certainly should entitle her to

better and not worse treatment than had

she attended school abroad.

2. This Court should review the Court

of Appeals decision because that decision

raises important questions as to whether

the Fourteenth Amendment's equal

protection clause limits a state's power

to withhold certain benefits from

residents of sister states to obtain

totally unrelated advantages for its

28

residents. The Court's holding that a

state has a legitimate interest in

achieving "reciprocal" treatment even when

it does not seek mutuality, but rather

seeks to obtain a greater benefit for a

different class of people than it provides

the sister state, has disturbing and wide-

ranging implications. The Court's logic

could permit states to engage in a variety

of coercive measures holding individual

out-of-state residents hostage to achieve

unrelated advantages for its residents.

Moreover, the Court of Appeals decision

conflicts with this Court's equal

protection analysis in Nordlinger v. Hahn,

60 U.S.L.W. 4563, 4567 (1992) requiring

that a state's interest must reasonably

have been the purpose and policy of the

relevant governmental decisionmaker.

The Court of Appeals, recognizing that

neither competency nor strict mutuality of

SS

29

treatment was furthered by Rule

203(a)(2)(ii), articulated another state

interest that it claimed was rationally

furthered by the rule. The Court

recognized that Pennsylvania's bar of out-

of-state attorneys who graduated from non-

ABA accredited schools and practiced law

in a non-reciprocal state did not aid its

Similarly situated attorneys who graduated

from non-ABA accredited schools. (App. A,

a22-a24) The Court found however, that

Pennsylvania, by preventing plaintiffs

from taking the Pennsylvania Bar

Examination, might entice states such as

California to become "Reciprocal" and thus

aid a different class of Pennsylvania

attorneys (experienced lawyers who

graduated from ABA accredited schools),

who sought to waive into the bar of

California without taking any examination.

(App. A, a25) Pennsylvania Rule

30

203(a)(2)(ii) tells California that, if it

wants its graduates of non-ABA accredited

law schools to be able to take the

Pennsylvania Bar Examination, California

must not only allow similarly situated

Pennsylvania attorneys to take its

examination, (which California already

does), but in addition must allow another

group of Pennsylvania attorneys to waive

into the California bar without taking any

examination whatsoever. To obtain certain

advantages for its group X, California

must bestow on Pennsylvania's group Y

greater advantages than it seeks to obtain

for its group X. This rationale

articulated by the Court of Appeals ©

perverts the ordinary meaning of

reciprocity as obtaining mutual or similar

treatment and is an illegitimate state

interest at odds with the basic

functioning of our Federal Union.

Se

31

(a) The difference between reciprocity

and pure retaliation or coercion lies in

the concept of mutuality. Once reciprocal

arrangements are cast adrift from securing

mutual treatment for similarly situated

citizens of both states, they lose

whatever economic and constitutional

justification they may have and instead

become the means for one state to coerce

another into giving favorabie treatment to

its citizens.

The implications of the Court of

Appeals rationale are far-reaching. Under

the decision, Pennsylvania could retaliate

against California's requirement that all

lawyers must take an examination by

refusing to permit California doctors to

practice in Pennsylvania without

examination, even if California already

permits Pennsylvania doctors to practice

without examination in California, and

32

even if Pennsylvania believes that

Californian doctors are competent to

practice in Pennsylvania without an

examination. Pennsylvania could also

refuse to admit petitioners to the

practice of law unless California agrees

to accept Pennsylvania's garbage, provide

certain Pennsylvania residents doing

business in California tax breaks, or

enact some other unrelated provision that

Pennsylvania wants.

The state's interest in reciprocity

must require, at minimum, some notion of

paral’elism or mutuality. To harm one

group of citizens from a sister state in

order to help a totally unrelated group of

one's own citizens is illegitimate. It

adds a condition to an attorney's

admission to the Pennsylvania bar that not

only is unrelated to the state's interest

in ensuring a competent bar, but is not

33

even rationally related to the

Classification the state has created. The

only relevance of the additional condition

for admission is its effect on an

unrelated group, outside of the

Classification.

(b) The Court's own opinion

illustrates the illegitimacy of its

asserted interest. In response to the

plaintiffs' argument that Pennsylvania

cannot "hold out-of-state non-ABA law

school graduates hostage in order to

achieve favorable treatment for its

experienced lawyers who graduated from ABA

approved schools," the Court answered with

a nonsequitor, stating that there was "no

evidence that Pennsylvania intended to

‘harm' its attorneys who are graduates of

unaccredited law schools to advance the

interests of its attorneys who are

graduates of accredited law schools."

34

(App. A, a26) If, as the Court suggests,

it is illegitimate -for Pennsylvania to

harm its own unaccredited law graduates to

aid the interests of its ABA accredited

law school graduates, it ought to be a

fortiori illegitimate for Pennsylvania to

harm out-of-state non-ABA graduates to

advance those same interests. At least

the in-state non-ABA graduates constitute

part of the electorate of Pennsylvania who

have some voice in that state's body

politic. The Court of Appeals, by

treating the hypothetical claims of in-

state lawyers more favorably than the

Claims of out-of-state lawyers in

petitioners' situation, demonstrates the

illegitimacy of an reciprocity arrangement

that is not based on mutuality.

(c) Last term, this Court required

that a state's purpose, while it need not

actually be articulated, must "reasonably

35

have been the purpose and policy" of the

relevant governmental decisionmaker.

Nordlinger v. Hahn, 60 U.S.L.W. 4563, 4567

(1992) quoting Allied Stores of Ohio, Inc.

V. Bowers, 358 U.S. 522, 528-529 (1959).

In this case the Magistrate held that

"there was absolutely no evidence that

would support" finding that the true

purpose of Rule 203(a)(2)(ii) was the

purpose articulated by the Court of

Appeals. Moreover, the defendants never

argued in any of the courts below that the

purpose of the Rule was that found to be

the only rational purpose by the Court of

Appeals. It is hard to see on this record

how the purpose set forth by the Court of

Appeals may reasonably have been the

purpose and policy of the Pennsylvania

Supreme Court when it adopted this rule.

36

CONCLUSION

The petition for a writ of certiorari

should be granted.

Respectfully submitted.

JULES LOBEL

Counsel of Record

University of Pittsburgh

School of Law

OCTOBER 1992

A-1

Appendix A

Filed June 3, 1992

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 91-3666

DANA SCHUMACHER, LEROY HODGE.

Appellants

Vv.

ROBERT N.C. NIX, JR.,

CHIEF JUSTICE OF THE SUPREME COURT OF

PENNSYLVANIA; ROLF LARSEN,

JUSTICE OF THE SUPREME COURT OF

PENNSYLVANIA; JOHN P. FLAHERTY,

JUSTICE OF THE SUPREME COURT OF

PENNSYLVANIA; JAMES T. McDERMOTT,

JUSTICE OF THE SUPREME COURT OF

PENNSYLVANIA; STEPHEN A. ZAPPALA.

JUSTICE OF THE SUPREME COURT OF

PENNSYLVANIA; NICHOLAS P. PAPADAKOS.

JUSTICE OF THE SUPREME COURT OF

PENNSYLVANIA; RALPH J. CAPPY,

JUSTICE OF THE SUPREME COURT OF

PENNSYLVANIA; PATRICK TASSOS,

EXECUTIVE DIRECTOR OF THE PENNSYLVANIA

BOARD OF LAW EXAMINERS

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 90-1431)

A-2

Argued April 6, 1992

Before: GREENBERG and SCIRICA,

Circutt Judges, and

DEBEVOISE, Dtstrict Judge*

(Filed June 3, 1992)

JULES LOBEL, ESQ. (Argued)

3900 Forbes Avenue

Pittsburgh, Pennsylvania 15260

Attorney for Appellants

A. TAYLOR WILLIAMS, ESQ.(Argued)

Supreme Court of Pennsylvania

Administrative Office

of Pennsylvania Courts

1515 Market Street, Suite 1414

Philadelphia, Pennsylvania 19102

Attorney for Appellees

OPINION OF THE COURT

SCIRICA, Circuit Judge.

This case presents an equal protection challenge

to Pennsylvania Bar Admission Rule 203(a)(2)(ti).

which governs the eligibility of graduates of

unaccredited law schools to sit for the

Pennsylvania bar examination. The district court

entered summary judgment for defendants on the

ground that the Rule ts rationally related to

Pennsylvania's interest in securing mutual

*The Honorable Dickinson R. Debevoise, United States District

Judge for the District of New Jersey, sitting by designation.

A-3

treatment for its attorneys seeking admission to

the bars of other states. We will affirm.

I

Plaintiffs Dana Schumacher and Leroy Hodge are

graduates of the People’s College of Law in

California, which is not accredited by the American

Bar Association. They have taken and passed the

California first-year law students’ examination,

professional responsibility examination, and

general bar examination. Plaintiffs are members in

good standing of the California bar, and have

practiced law in that state for more than five

years.

Plaintiffs moved to Pennsylvania in 1987. Since

then they have been admitted to the bars of the

United States District Court for the Western

District of Pennsylvania, the United States Court

of Appeals for the Third Circuit, and the United

States Supreme Court. Plaintiffs have been unable

to gain admission to the Pennsylvania bar,

however, because they are ineligible to sit for the

Pennsylvania bar examination.’

As a general matter, only graduates of law

schools accredited by the ABA are eligible to sit

for the Pennsylvania bar examination. Pa. B.A.R.

1. Schumacher applied to the Pennsylvania Board of Law

Examiners for permission to sit for the bar examination, but

her application was denied pursuant to Rule 203(a)(2)(ti):

Hodge has not applied for permission to sit for the

Pennsylvania bar examination, because he believes it would

be futile. Because Schumacher has standing to maintain this

action, and Schumacher and Hodge present identical

challenges to Rule 203(a)(2)(l), we need not consider whether

Hodge would have standing to bring this action Individually.

See Bowsher v. Synar, 478 U.S. 714, 721 (1986).

A-4

203(a)(2)(i). There is an exception, however, for

graduates of unaccredited law schools who are

members in good standing of the bar of a

“reciprocal state” and have practiced law there for

five years. Id. 203(a)(2)(ii).2 “Reciprocal state” is

defined as “[a] state having a reciprocal agreement

Or arrangement with [Pennsylvania] concerning

2. Rule 203. Admission of graduates of accredited and

unaccredited institutions.

(a) Bar Examination. The general requirements for

permission to sit for the bar examination are:

(1) Receipt of an undergraduate degree from an

accredited college or university ... .

(2)()} Except as provided in subparagraph 2(ii) of

the Rule, completion of the study of law at and receipt

without exception of an earned Bachelor of Laws or

Juris Doctor degree from an accredited law school... .

; or

(2)() Completion of the study of law at and

receipt without exception of an earned Bachelor of

Laws or Juris Doctors degree from an unaccredited law

school located within the boundaries of the United

States of America, provided that the applicant is a

member of the bar of a reciprocal state and meets the

following qualifications:

(A) Presentation of a _ certificate from _ the

highest court or agency of such state having

jurisdiction over admission to the bar and the practice

of law stating that the applicant is in good standing

at the bar of such court or such state.

(B) Presentation of proof satisfactory to the

Board that the applicant, while continuously engaged

in the practice of law in any state or states outside

of this Commonwealth and subsequent to admission

in a reciprocal state, has for a period of five years:

(i) practiced law in a reciprocal state or

states outside this Commonwealth. . . .

Pa. B.A.R. 203 (emphasis added).

A-5

admission to the bar.” Id. 102({a). In practice, the

Pennsylvania Board of Law Examiners has

accorded reciprocal status to those states which

permit experienced Pennsylvania attorneys who are

graduates of accredited law schools to waive into

their bar without taking an examination.?

3. Stephen Bosch, a former secretary and treasurer of the

Pennsylvania Board of Law Examiners, attested that, although

Rule 102(a) calls for a “reciprocal agreement or arrangement,”

to obtain reciprocal status a state need only announce that

it “wishes to be reciprocal as we commonly understand

reciprocity.”

Bosch explained the significance of the grant of

reciprocal status as follows:

In its basic terms it meant that attorneys from the

new reciprocal state and attorneys from Pennsylvania

could apply to be admitted in each other [sic] states

without having to take and pass the multistate bar

examination. And, of course, it meant for Pennsylvania

that they could seek to be admitted in other states

without have [sic] to sit for a bar examination, and we

in turn would then take in attorneys from the new

reciprocal state and give them a license to practice

law in Pennsylvania without having to take a bar

examination and, of course, without having to be a

resident of Pennsylvania.

(emphasis added). This view comports with that held by

Bosch’s predecessor, Susan L. Anderson. who in a

memorandum to the Board of Law Examiners Usted as

reciprocal states those states which “require the attorney

applicant to sit for an examination, either the bar examination

or an attorney examination.”

It is not clear from either Bosch’s deposition testimony

or Anderson's memorandum whether they were referring to

Pennsylvania attorneys who are graduates of accredited law

schools. unaccredited law schools, or both. However. as

plainuffs point out, the only consistent diflerence between how

reciprocal and nonreciprocal states treat Pennsylvania

Serre

A-6

California is not considered a reciprocal state by

the Board of Law Examiners, because it will not

allow Pennsylvania attorneys, whether graduates

of accredited law schools or not, to become

members of its bar without taking an examination.

Accordingly, although plaintiffs are members in

good standing of the California bar and have

practiced law there for five years, they are

ineligible to sit for the Pennsylvania _ bar

examination. To become eligible, plaintiffs would

have to either obtain a degree from an accredited

law school or become members in good standing

of the bar of a reciprocal state and practice law

there for five years. See td. 203(a)(2)(11).

On August 29, 1990, plaintiffs filed this 42

U.S.C. § 1983 action in federal district court

seeking a declaration that Rule 203(a)(2)(ii) is

unconstitutional and an injunction preventing its

enforcement. Defendants are the Chief Justice and

Justices of the Pennsylvania Supreme Court, who

promulgated Rule 203(a)(2)(il), see 42 Pa. Cons.

Stat. Ann. §§ 1701 & 1722(a)(1), and the Executive

Director of the Pennsylvania Board of Law

Examiners, who is responsible for implementing

the Rule, see Pa. B.A.R. 104(c).

attorneys is that reciprocal states allow experienced

Pennsylvania attorneys who are graduates of accredited law

schools to waive into their bar without taking an examination.

Accordingly, we understand Bosch's and Anderson's references

to be to Pennsylvania attorneys who are graduates of

accredited law schools.

Defendants call into question Bosch’s deposition

testimony, because, as Bosch himself admitted, he left the

Board of Law Examiners on “nonamicable” terms. However,

defendants have not pointed to any evidence that conflicts

with Bosch’s testimony. Therefore, it is unrebutted.

— |

A-7

In their complaint, plaintiffs allege that Rule

203(a)(2)(11) violates the Equal Protection Clause of

the Fourteenth Amendment. U.S. Const. amend.

XIV, § 2.* They assert that the Rule substantially

interferes with their fundamental right to

interstate travel by discouraging them from moving

to Pennsylvania, and is invalid under the strict

scrutiny standard of equal protection analysis.° In

4. The complaint also alleges that Rule 203(a)(2)(1i) violates

the Privileges and Immunities Clause of Article IV, U.S. Const.

art. IV, § 2, and the Due Process Clause of the Fourteenth

Amendment, id amend. XIV, § 2. of the Constitution.

However, plaintiffs’ privileges and immunities claim lacks

merit, because plaintiffs are required to meet the same

requirements for admission to the Pennsylvania bar under the

Rule as Pennsylvania graduates of unaccredited law schools.

See Lutz v. City of York, 899 F.2d 255, 262 (3d Cir. 1990)

(“[Tihe purpose of the [Privileges and Immunities] [Cjlause was

simply ‘to insure to a citizen of State A who ventures into

State B the same privileges which the citizens of State B

enjoy.~) (quoting Toomer v. Witsell, 334 U.S. 385, 395 (1948)).

And because plaintiffs’ substantive due process claim is

amenable to an equal protection analysis, see Jones v. Helms,

452 U.S. 412 (1981); Westen, The Empty Idea of Equality, 95

Harv. L. Rev. 537, 558-59 n.69 (1982), plaintiffs have not

pursued it separately.

5. On appeal, plaintiffs suggest that even if the strict scrutiny

standard !s not controlling, we should subject Rule 203(a)(2)(ii)

to “heightened scrutiny.” They cite Lutz v. City of York, 899

F.2d at 257. where we applied intermediate scrutiny to a

municipal “cruising” ordinance prohibiting “unnecessary

repetitive driving” in certain areas between the hours of 7:00

p.m. and 3:30 a.m. Significantly. the challenge in that case

was predicated on the right to intrastate travel, which we said

emanated from the substantive component of the Fourteenth

Amendment Due Process Clause. Jd. at 268. By contrast,

plaintiffs’ challenge here Is predicated on the right to interstate

travel. As we discuss below, in reviewing challenges predicated

A-8

the alternative, they contend that the Rule cannot

pass the minimum rational basis test, because

there is no logical connection between whether a

state is considered reciprocal by the Pennsylvania

Board of Law Examiners and whether it accords

mutual treatment to Pennsylvania attorneys who

are graduates of unaccredited law schools. |

After both parties sought summary judgment, a

magistrate judge recommended that summary

judgment be granted for defendants. Rejecting

plaintiffs’ argument that strict scrutiny applied, he

held that Rule 203(a)(2)(ii) passed muster under

rational basis review. The district court issued a

memorandum and order adopting the magistrate

judge's recommendation. Schumacher v. Nix, No.

90-1431 (W.D. Pa. Aug. 27, 1991). This appeal

followed.

II

We have jurisdiction under 28 U.S.C. § 1291.°

At issue is whether Rule 203(a)(2)(ii) violates

on the right to interstate travel, the Supreme Court has

applied either strict scrutiny or rational basis review.

Accordingly, we reject plaintiffs’ suggestion that intermediate

scrutiny would be proper here.

6. The Rooker-Feldman doctrine presents no jurisdictional

obstacle here. Under that doctrine, “federal district courts lack

subject matter jurisdiction to review final adjudications of a

state's highest court or to evaluate constitutional claims that

are ‘inextricably intertwined with the state court's [decision]

in a judicial proceeding.~ Blake v. Papadakos, 953 F.2d 68.

71 (3d Cir. 1992) (quoting District of Columbia Court of Appeals

v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co.,

263 U.S. 413 (1923)). Although Schumacher applied for and

was denied permission to sit for the Pennsylvania bar

examination. the complaint before us presents a general

cial ae iceni a |

A-9

plaintiffs’ right to equal protection of the laws. Our

review of the district court's grant of summary

judgment for defendants is plenary. Sacred Heart

Medical Ctr. v. Sulltvan, 958 F.2d 537, 543 (3d Cir.

1992). We apply the same principles governing the

district court's determination whether to grant

summary judgment, and must be convinced that

defendants have successfully demonstrated “that

there is no genuine issue as to any material fact

and that [they are] . . . entitled to Judgment as a

matter of law.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986).

A

The threshold question is what standard of equal

protection analysis governs our review of Rule

203(a)(2)(li). As a general matter, economic and

social legislation’ is subject to rational basis

review, under which a law need only be “rationally

related to a legitimate state interest.” City of New

Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per

constitutional challenge to Rule 203(a)(2)(li). As such, we do

not believe this action is so “inextricably intertwined” with the

denial of Schumacher's application that it divests us of subject

matter jurisdiction under Rooker-Feldman. Cf. Lowrte uv.

Goldenhersh, 716 F.2d 401, 404-08 (7th Cir. 1983).

7. We are not reviewing legislation in the traditional sense.

Rule 203(a)(2)(ul) was promulgated by the justices of the

Pennsylvania Supreme Court pursuant to the authority

delegated to them by the Pennsylvania General Assembly. See

42 Pa. Cons. Stat. Ann. §§ 1701 & 1722(a)(1). Hewever, the

fact that the Rule was not enacted by a legislative body does

not affect our equal protection inquiry. See Delaware River

Basin Comm'n v. Bucks County, 641 F.2d 1087. 1093 n.11

(3d Cir. 1981}. See also Tussman & tenBroek. The Equal

Protection of the Laws, 37 Cal. L. Rev. 341, 353 (1949).

A-10

curiam). However, where such legislation

establishes “a classification [that] trammels

fundamental personal rights or is drawn upon

inherently suspect distinctions such as _ race,

religion, or alienage,” id., it must meet the strict

scrutiny standard, under which a law must be

narrowly tailored to further a _ compelling

government interest. See City of Cleburne ov.

Cleburne Living Ctr., Inc., 473 U.S. 432, 440

(1985).

As we have noted, plaintiffs argue that we must

subject Rule 203(a)(2)(ii) to strict scrutiny, because

it substantially burdens their right to travel by

deterring them from migrating to Pennsylvania.

The district court disagreed, and applied rational

basis review instead. It found the right to travel

cases cited by plaintiffs inapposite, because Rule

203(a)(2)(li) does not “condition the receipt of a

benefit on a ferm of in-state residency.” And even

though the Rule has the “practical effect” of

making plaintiffs ineligible to practice law in

Pennsylvania, the district court concluded that it

does not so impinge plaintiffs’ “freedom of

movement” as to trigger strict scrutiny. We agree.

“[Flreedom to travel throughout the United

States has long been recognized as a basic right

under the Constitution.” United States v. Guest,

383 U.S. 745, 758 (1966). Although the Supreme

Court has declined to “ascribe the source of this

right . . . to a particular constitutional provision,”

Shapiro v. Thompson, 394 U.S. 618, 630 (1969), it

has been said that the right to interstate travel

finds its “most forceful expression in the context

of equal protection analysis.” Zobel v. Williams,

457 U.S. 55, 67 (1982) (Brennan, J., concurring).

Cf. Lutz v. Ctty of York, 899 F.2d 255, 258-68 (3d

A-11

Attomey General of New York v. Soto-Lopez, 476

U.S. 898 (1986), a plurality of the Court applied

strict scrutiny to a civil service preference for

Vietnam veterans with residency at the time they

entered military service, but the fifth and sixth

votes for striking down the preference were cast

by Justices applying rational basis review.

The Supreme Court has yet to articulate why it

has applied rational basis review in some right to

travel cases and strict scrutiny in others, except

to say that where a law cannot meet the minimum

rationality requirement there is no need to

undertake a more searching inquiry. See Zobel,

457 U.S. at 60-61; Soto-Lopez, 476 U.S. at 912

(Burger, C.J., concurring). Plaintiffs maintain that

the proper level of equal protection analysis is

dependent on the degree to which the right to

travel is infringed, and, because Rule 203(a)(2)(11)

substantially burdens their right to travel, we must

subject it to strict scrutiny. Although the extent

to which the right to travel is impinged may affect

the standard of equal protection review, we cannot

agree that the strict scrutiny standard applies

here.

As the preceding discussion illustrates, the

Shapiro line of cases has, without exception,

involved challenges to state laws that create

“distinctions between newcomers and longer term

residents.” Zobel, 457 U.S. at 60 n.6. As the

district court observed, however, Rule 203(a)(2)(11)

neither conditions the receipt of in-state benefits

on residency nor classifies applicants on the basis

of residency. Under the Rule, Pennsylvania

graduates of unaccredited law schools must meet

the same requirements to sit for the Pennsylvania

eee

A-12

Cir. 1990) (concluding that the right to intrastate

travel emanates from the substantive component

of the Fourteenth Amendment Due Process

Clause).

The Supreme Court's modern right to travel

jurisprudence originated in Shapiro v. Thompson.

There the Supreme Court struck down under strict

scrutiny a durational residency requirement for

welfare benefits. Following Shapiro, the Court

applied strict scrutiny in striking down durational

residency requirements to vote, Dunn v. Blumstein,

405 U.S. 330 (1972); and to receive free

nonemergency medical care, Memortal Hosp. v.

Martcopa County, 415 U.S. 250, 258 (1974). But

cf. Sosna v. Iowa, 419 U.S. 393 (1975) (upholding

durational residency requirement for in-state

divorce).®

In Zobel v. Williams, however, the Court

employed rational basis review in striking down a

legislative scheme for distribution of surplus oil

revenues to citizens based on duration of

residency. Three years later, in Hooper v. Bernalillo

County Assessor, 472 U.S. 612 (1985), the Court

applied rational basis review in striking down a

limited property tax exemption for Vietnam

veterans with residency prior to May 8, 1976. In

8. The Sosna Court applied a less searching equal protection

review. The Court said that the durational residency

requirement was constitutional, because it could ‘reasonably

be justified” by the circumstances attendant to divorce and

“furthers the State's parallel interests in avoiding officious

intermeddling in matters in which another State has a

paramount interest, and in minimizing the susceptibility of its

own divorce decrees to collateral attack.” 419 U.S. at 406-407.

This analysis seems closer to rational basis review than strict

scrutiny.

A-13

bar examination as nonresident graduates of

unaccredited law schools.

This is not to say that Rule 203(a)(2)(il) is no

impediment to plaintiffs’ freedom of movement.

Surely, the Rule has some deterrent effect on

nonresident attorneys who wish to migrate to

Pennsylvania but choose not to because they are

ineligible to sit for the Pennsylvania bar

examination. However, the Constitution does not

guarantee that citizens of State A may move to

State B and enjoy the same privileges they did as

citizens of State A, only that citizens of State A

may move to State B and be treated on similar

terms as the citizens of State B. See Toomer v.

Witsell, 334 U.S. 385, 395 (1948) (construing U.S.

Const. Art. IV, § 2). Nor does it “require that

because a lawyer has been admitted to the bar of

one State, he or she must be allowed to practice

in another.” Leis v. Flynt, 439 U.S. 438, 443 (1979)

(per curiam).

Therefore, because Rule 203(a)(2)(i!) neither

establishes a classification based on residency nor

erects a barrier to migration, we believe rational

basis review applies here.® We are not alone in

this view. The courts that have considered equal

9. Plaintiffs have not alieged that any other fundamental right

is impinged by Rule 203(a)(2)(1i). We note, however, that “the

right to practice law is not a fundamental right for purposes

of . . . equal protection analysis.“ Edelstein v. Wilentz, 812

F.2d 128, 132 (3d Cir. 1987). Cf Supreme Court of New

Hampshve v. Piper, 470 U.S. 274, 281 (1985) (suggesting that

the opportunity to practice law (ts fundamental for purposes

of a Privileges and Immunities Clause analysis). Nor have

plaintiffs alleged that they are members of a suspect class or

that the Rule was enacted purposefully to discourage

migration.

A-14

protection challenges to state bar rules have

uniformly applied rational basis review. See, e.g.,

Nordgren v. Hafter, 789 F.2d 334 (5th Cir.), cert.

denied, 479 U.S. 850 (1986); Lupert v. California

State Bar, 761 F.2d 1325 (9th Cir.), cert. dented

and appeal dismissed, 474 U.S. 916 (1985);

Salibra v. Supreme Court of Ohio, 730 F.2d 1059

(6th Cir.), cert. dented, 469 U.S. 917 (1984); Lowrle

v. Goldenhersh, 716 F.2d 401 (7th Cir. 1983). And

at least two courts have embraced the right to

travel analysis we adopt here.

In Moore v. Supreme Court of South Carolina,

447 F. Supp. 527 (D.S.C. 1977), aff'd without op.,

577 F.2d 735 (4th Cir.), cert. denied, 439 U.S. 984

(1978), the district court dismissed a right to travel

challenge to a South Carolina bar rule that made

all graduates of unaccredited law schools ineligible

to practice law in that state. The plaintiff in Moore

asserted that the rule impinged his right to travel

by not allowing him “to pursue his chosen

vocation” in South Carolina, thus triggering strict

scrutiny. Id. at 530. The district court disagreed.

It noted the “crucial factual distinction” between

laws that create classifications based on residency,

like those challenged in the “Shapiro line of cases,”

and laws that create classifications unrelated to

residency. Because the challenged rule

distinguished only “between those who have

graduated from ABA approved law schools and

those who have not,” the district court found the

Supreme Court's right to travel cases

“inapplicable.” Therefore, although the rule “clearly

discourage[(d] plaintiff from traveling to South

Carolina for the purpose of establishing a

residence,” the court held that rational basis

review applied. Id.

A-15

The Moore court relied in part on Hawkins v.

Moss, 503 F.2d 1171 (4th Cir. 1974), cert. dented.

420 U.S. 928 (1975). There the court of appeals

rejected a right to travel challenge to a South

Carolina bar rule that exempted from the general

examination requirement experienced attorneys

from reciprocal states but not similarly situated

attorneys from nonreciprocal states. The court

stated:

[T]he “right to travel” . . . is not to be construed

to mean that a citizen carries with him from

State to state an absolute right of comity to

practice, not a “common occupation,” but a

profession, which is properly subject to state

regulation, in any state to which he travels... .

. The exercise by a state of power to regulate

reasonably the practice of law within its

jurisdiction and to require of any applicant,

whether a resident or a migrant, that he

demonstrate sufficient proficiency in the law as

a prerequisite to a license to practice, is, as we

have seen perfectly permissible and represents

no violation . . . of the Fourteenth Amendment.

Id. at 1178-79 (emphasis added). Cf. Shenfield v.

Prather, 387 F. Supp. 676, 683-86 (N.D. Miss.

1974) (undertaking right to travel analysis of state

bar rule requiring attorneys from nonreciprocal

States to sit for bar examination but concluding

that rational basis review applied).

Finally, our conclusion that rational basis review

applies here squares with the deference the

Supreme Court has long afforded states in

regulating the practice of law and admission to the

bar. See Schware v. Board of Bar Examiners, 353

U.S. 232, 239 (1957) (“A State can require high

A-16

standards of qualification, such as good moral

character or proficiency in its law, before it admits

an applicant to the bar, but any qualification must

have a rational connection with the applicant's

fitness or capacity to practice law.”) (emphasis

added). See also District of Columbia Court of

Appeals uv. Feldman, 460 U.S. 462, 484 n.16

(1983); Middlesex County Ethics Comm. v. Garden

State Bar Ass'n, 457 U.S. 423, 434-35 (1982).

B

Having concluded that rational basis review

governs our equal protection analysis of Rule

203(a)(2)(li), the next question is whether the Rule

passes muster under this standard. The district

court determined that Rule 203(a)(2)(ii) is

rationally related to Pennsylvania’s interest in

securing mutual treatment for its attorneys

seeking admission to the bars of other states.

Plaintiffs argue that the Rule cannot further

Pennsylvania's reciprocity interest, because the

Pennsylvania Board of Law Examiners has not

conditioned the grant of reciprocal status on

whether a state accords mutual treatment to

Pennsylvania attorneys who are graduates of

unaccredited law schools.

State laws that neither employ a_ suspect

classification nor impinge a fundamental right are

“entitled to a presumption of validity against

attack under the Equal Protection Clause.” Parham

v. Hughes, 441 U.S. 347, 351 (1979). Cf. City of

Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. at

440 ("[Tlhe Constitution presumes that even

improvident decisions will eventually be rectified

by the democratic processes."). This presumption

finds its expression in the rational basis test,

A-17

which requires only that a law “classify the

persons it affects in a manner rationally related to

legitimate governmental objectives.- Schwetker uv.

Wilson, 450 U.S. 221, 230 (1981).

Rational basis review accords great deference “to

legislative determinations as to the desirability of

particular statutory discriminations.” City of New

Orleans v. Dukes, 427 U.S. at 303. Under this

standard, the Supreme Court has said that “a

statutory distinction does not violate the Equal

Protection Clause ‘if any state of facts reasonably

may be conceived to justify it,~ Sullivan v. Stroop,

110 S. Ct. 2499, 2504 (1990) (quoting Bowen v.

Gilliard, 483 U.S. 587, 601 (1987)), and that

“rational distinctions may be made with

substantially less than mathematical exactitude,”

City of New Orleans, 427 U.S. at 303.

Of course, rational basis review is not “entirely

‘toothless. Murillo v. Bambrick, 681 F.2d 898, 905

n.15 (3d Cir.), cert. denied, 459 U.S. 1017 (1982).

“A classification ‘must be reasonable, not arbitrary,

and must rest upon some ground of difference

having a fair and substantial relation to the object

of the legislation, so that all persons similarly

circumstanced shall be treated alike.” Reed v.

Reed, 404 U.S. 71, 76 (1971) (quoting F.S. Royster

Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)).

Laws that cannot meet this minimum rationality

requirement are constitutionally infirm. See, e.g.,

Jimenez v. Weinberger, 417 U.S. 628 (1974);

Delaware River Basin Comm'n v. Bucks County,

641 F.2d 1087 (3d Cir. 1981).

To determine whether Rule 203(a)(2)(ii) passes

rational basis review, we must first “identify with

particularity the precise classification alleged to be

irrational.” Murillo, 681 F.2d at 906. The

ee

A-18

challenged classification here is between similarly

situated attorneys in reciprocal and nonreciprocal

states who have graduated from unaccredited law

schools, are members in good standing of the bar,

and have practiced law for five years. Under Rule

203(a)(2)(li), only experienced attorneys who are

graduates of unaccredited law schools from

reciprocal states are eligible to sit for the

Pennsylvania bar examination.

As we have noted, although plaintiffs are

members in good standing of the California bar

and have practiced law there for five years, they

are ineligible to sit for the Pennsylvania bar

examination because California is not considered

a reciprocal state by the Pennsylvania Board of

Law Examiners. Of course, as defendants point

out, plaintiffs would be eligible to sit for the

Pennsylvania bar examination if they had

graduated from an accredited law school. See Pa.

B.A.R. 203(a)(2)(i). But this is not relevant to our

equal protection inquiry. Having decided to allow

some graduates of unaccredited law schools to sit

for its bar examination (le., those who are

experienced attorneys from reciprocal states),

Pennsylvania cannot deny this privilege to

similarly situated graduates of unaccredited law

schools (Le., those who are experienced attorneys

from nonreciprocal states) without meeting the

minimum rationality requirement. See Lindsey v.

Normet, 405 U.S. 56, 77 (1972); Hetherton v. Sears,

Roebuck & Co., 652 F.2d 1152, 1157-58 (3d Cir.

1981).'°

10. Although we need not decide the issue, It would seem

settled that Pennsylvania could require all candidates for

admission to the bar to have graduated from an accredited

a

A-19

We must decide whether Pennsylvania has a

legitimate interest in classifying experienced

attorneys who are graduates of unaccredited law

schools on the basis of whether they are members

of the bar of a reciprocal state, and, if so, whether

Rule 203(a)(2)(ii) is rationally related to this

interest. It is undisputed that the Rule rests upon

a legitimate state interest. As the district court

observed, the Rule is intended to “secure[] for

Pennsylvania attorneys who decide to relocate, the

advantage of favorable terms of admission to

another state’s bar by offering that same

advantage to attorneys of such other states that

will reciprocate.” And it is established that such

reciprocity provisions are a valid exercise of state

power, because they help ease the burdens of

relocation for resident attorneys seeking admission

to the bars of other states. See Hawkins v. Moss,

503 F.2d at 1176-77; Goldsmith v. Pringle, 399 F.

Supp. 620, 623 (D. Colo. 1975).'!

law school. See Potter v. New Jersey Supreme Court, 403 F.

Supp. 1036, 1037-38 (D.N.J. 1975), aff'd without op., 546 F.2d

418 (3d Cir. 1976).

11. Defendants argue that Rule 203(a)(2)(ii) also promotes

Pennsylvania's interest in ensuring a competent bar. Although

this too is a valid state objective, see Lowrte v. Goldenhersh,

716 F.2d at 409, we cannot say that Rule 203(a)(2)(ii) furthers

it. The Rule evinces an administrative judgment that graduates

of unaccredited law schools who are members in good standing

of the bar of another state and have practiced law there for

five years are competent to practice law if they pass the

Pennsylvania bar examination. We can discern no reason why,

as a general matter, experienced graduates of unaccredited

law schools from reciprocal states would be more competent

to practice law than experienced graduates of unaccredited law

schools from nonreciprocal states.

A-20

The pivotal question here is whether Rule

203(a)(2)(il) reasonably furthers Pennsylvania's

interest in securing mutual treatment for its

attorneys seeking admission to the bars of other

states. As we have noted, plaintiffs assert that the

Rule is not rationally related to this objective,

because there is no logical connection between

whether a state is considered reciprocal by the

Pennsylvania Board of Law Examiners and

whether that state accords mutual treatment to

Pennsylvania attorneys who are graduates of

unaccredited law schools. Neither the district court

nor defendants squarely addressed this argument.

Moreover, the cases rejecting equal protection

challenges to reciprocity provisions similar to Rule

203(a)(2)(ii) provide no assistance on this point.

See, e.g., Hawkins v. Moss, 503 F.2d 1171

(rejecting challenge to state bar rule exempting

Citing Appeal of Murphy, 393 A2d 369 (Pa. 1978),

cert dented and appeal dismissed sub nom Murphy v.

Pennsylvania State Board of Bar Examiners, 440 U.S. 901

(1979), defendants maintain that graduates of unaccredited

law schools in certain states— namely, California—are less

qualified than graduates of unaccredited law schools in other

states, because of the manner in which these states regulate

(or, rather, fail to regulate) their unaccredited law schools.

However, Rule 203(a)(2)(ii}) does not distinguish between

graduates of unaccredited law schools in states that closely

regulate their unaccredited law schools and graduates of

unaccredited law schools in states that do not. Nor is there

any evidence that the Pennsylvania Board of Law Examiners

has attempted to do so in determining which states should be

accorded reciprocal status. Therefore, even if it can be said

that graduates of unaccredited law schools in certain states

are less qualified than graduates of unaccredited law schools

in other states, the Rule would not prevent these graduates

from becoming members of the Pennsylvania bar.

io aneieeenenenaeemeeenemieaaeiainial

A-21

from general bar examination requirement

experienced attorneys from reciprocal states):

Shenfleld v. Prather, 387 F. Supp. 676 (same). The

focus in those cases was on whether the

reciprocity provisions were enacted pursuant to a

legitimate state interest, not whether they were

rationally related to that interest. Therefore, the

courts had no occasion to consider the type of

challenge presented here.

On its face, Rule 203(a)(2)(i1) would seem to

further Pennsylvania's reciprocity interest. It

distinguishes between similarly situated graduates

of unaccredited law schools from reciprocal and

nonreciprocal states, and ‘reciprocal state” is

defined as “[a] state having a reciprocal agreement

or arrangement with [Pennsylvania] concerning

admission to the bar.” Pa. BA.R. 102{(a).

Accordingly, under the conventional notion of

“reciprocity” at least,'? it would seem clear that

Pennsylvania could reasonably have conceived that

the Rule would promote its interest in securing

mutual treatment for its attorneys seeking

admission to the bars of other states.

But this does not end the inquiry, for a

classification which is constitutional on its face

may be unconstitutional as applied. See Yick Wo

v. Hopkins, 118 U.S. 356, 373-74 (1886). And even

under rational basis review, “the constitutionality

of a statute predicated upon the existence of a

particular state of facts may be challenged by

12. Webster's Third New International Dictionary 1895 (1964)

defines “reciprocity” as “a mutual exchange of courtesies

between two states or institutions; specif : a recognition by

each state or institution of the validity of licenses or privileges

granted by the other to its citizens or members.”

eT

A-22

showing to the court that those facts have ceased

to exist.” United States v. Carolene Prods. Co., 304

U.S. 144, 153 (1938), though such challenges

cannot succeed where it is “at least debatable™ that

the classification is rational, Minnesota v. Clover

Leaf Creamery Co., 449 U.S. 456, 464 (1981). See

also Tussman & -tenBroek, supra note 6, at

367-68.

Here it is the implementation of Rule 203(a)(2)(ii)

by the Pennsylvania Board of Law Examiners

which has given rise to plaintiffs’ equal protection

challenge. As plaintiffs point out, it is difficult to

glean any nexus between whether a state has

reciprocity with Pennsylvania and whether it

accords mutual treatment to Pennsylvania

attorneys who are graduates of unaccredited law

schools. Of the twenty-six jurisdictions that had

reciprocity with Pennsylvania in July 1987,'°

twelve would not allow Pennsylvania attorneys who

are graduates of unaccredited law schools to

become members of their bar;'* and of the

jurisdictions that did not have reciprocity at that

time, ten would permit Pennsylvania attorneys who

13. These jurisdictions were Alaska, Colorado, Connecticut,

District of Columbia, Illinois, Indiana, lowa, Kentucky,

Michigan, Minnesota, Missouri, Montana, Nebraska, New York.

North Carolina, North Dakota, Ohio, Oklahoma, Rhode Island,

Tennessee, Texas, Vermont, Virginia, West Virginia, Wisconsin,

and Wyoming.

14. These states are Illinois, Rules 703 and 705; Kentucky,

Rules 2.070 and 2.110; Michigan, Rules 2(B) and 5({A):

Minnesota, Rule I]; Montana, Section I(1):; New York. Rule

520.2-.4; North Carolina, Section .0702: North Dakota, Rule

1; Ohio, Rule 1, Section l(c); Oklahoma, Rule 2(2); Tennessee,

Rule 2.02; and Wyoming, Rule 5{e).

icseseaietaiaiani aaa iia

A-23

are graduates of umnaccredited law schools to

become members of their bar.'®

As plaintiffs point out, the only uniform

difference between how _ reciprocal and

nonreciprocal states treat Pennsylvania attorneys

is that reciprocal states allow experienced

Pennsylvania attorneys who are graduates of

accredited law schools to waive into their bar

without taking an examination. Therefore, it would

seem that the Board of Law Examiners has

conditioned the grant of reciprocal status on

whether a state accords mutual treatment to

Pennsylvania attorneys who are graduates of

accredited law schools without regard to whether

that state accords mutual treatment to

Pennsylvania attorneys who are graduates of

unaccredited law schools.'® As such, plaintiffs

15. These states are Arizona, Rule 34(c)(1)(D); California, Rule

IV; Florida, Article III(c); Hawaii, Rule 1(c); Maine, Rule 10(c)(3):

Maryland, Rule 13(a); New Mexico, Rule 15-103(B)(2); Oregon,

Rules 2.25 and 2.30; Utah, Rule 4; and Washington, Rule

3(b){2).

16. It is not clear from the record whether there are in fact

Pennsylvania attorneys who are graduates of unaccredited law

schools. As we have noted, Rule 203(a)(2)(ii) is the exception

to Pennsylvania's general policy that graduates of unaccredited

law schools are ineligible to sit for the Pennsylvania bar

examination. Accordingly, it would seem that the only way in

which a graduate of an unaccredited law school may become

a member of the Pennsylvania bar is by becoming a member

in good standing of the bar of a reciprocal state, practicing

law there for five years, and passing the Pennsylvania bar

examination and other character and fitness requirements. The

record does not indicate how many graduates of unaccredited

law schools have become members of the Pennsylvania bar

through this process. Although we assume there are some, we

note that, if there were no Pennsylvania attorneys who are

A-24

argue that Rule 203(a)(2)(ii) cannot further the

state's interest in securing mutual treatment for

its attorneys who are graduates of unaccredited

law schools.

Given the lack of nexus between whether a state

is considered reciprocal by the Board of Law

Examiners and whether it accords similar

treatment to Pennsylvania attorneys who are

graduates of unaccredited law schools, we agree

that it is dificult to see how Pennsylvania's

reciprocity interest is furthered as to these

attorneys.'’ However, this does not decide the

constitutionality of Rule 203(a)(2)(ii), because

plaintiffs have framed Pennsylvania's reciprocity

interest too marrowly. Pennsylvania has a

legitimate interest in securing mutual treatment

for all its attorneys seeking edmission to the bars

of other states, whether they are graduates of

graduates of unaccredited law schools, it would of course be

reasonable for the Board of Law Examiners not to condition

the grant of reciprocal status on whether states seeking

reciprocity accord mutual treatment to such attorneys.

17. We note, however, that although Rule 203(a)(2)(t!) may not

directly further Pennsylvania's reciprocity interest as to its

attorneys who are graduates of unaccredited law schools. it

does not undermine it either. The fact ts that many reciprocal!

states would allow Pennsylvania attorneys who are graduates

of unaccredited law schools to sit for their bar examination.

It is possible, therefore, that the Rule indirectly furthers

Pennsylvania's reciprocity interest as to its attorneys who are

graduates of unaccredited law schools by setting an example

for other jurisdictions to follow. In any event. because we

believe, for the reasons we express below, that Rule 203(a)(2)(1i)

promotes Pennsylvania's reciprocity interest as to its attorneys

who are graduates of accredited law schools, we need not

decide whether this indirect effect. standing alone. would

satisfy the minimum rationality requirement.

A-25

accredited or unaccredited law schools. Therefore,

even if Rule 203(a)(2)(ii) does not promote

Pennsylvania's reciprocity interest as to its

attorneys who are graduates of unaccredited law

schools, we think the Rule would pass rational

basis review if it furthered the state's reciprocity

interest as to its attorneys who are graduates of

accredited law schools.

Viewed in this light, we believe Rule 203(a)(2)(i1)

is rationally related to Pennsylvania's reciprocity

interest. By allowing attorneys who are graduates

of unaccredited law schools from reciprocal states

to sit for its bar examination, Pennsylvania may

entice states to enter into reciprocal agreements

with it and thereby promote its interest in securing

similar treatment for its attorneys who are

graduates of accredited law schools. We think it

sufficient, for purposes of rationality review, that

Rule 203(a)(2)(ii) furthers Pennsylvania's

reciprocity interest in this respect.

Relying on dictum in Medora v. Colautti, 602

F.2d 1149 (3d Cir. 1979),'* plaintiffs argue that

18. Medora involved an equal protection challenge to a

Pennsylvania regulation requiring all applicants for general

assistance benefits for the blind. aged, or disabled to apply

first for federal Supplemental Security Income (SSI) benefits.

Under the regulation, applicants who were found to be blind,

aged, or disabled yet ineligible for SSI benefits because they

did not meet the more stringent federal “need criteria,” were

barred from applying for Pennsylvania general assistance

benefits even if they qualified as “needy” under the state

program. Because the regulation bore no rational relation to

Pennsylvania's stated objective of providing “assistance to all

of [the State's] needy and distressed,” we struck it down under

rational basis review. 602 F.2d at 1152.

In so holding, we rejected the “suggestion” that the

regulation would be valid if Pennsylvania's aim in enacting it

A-26

Pennsylvania cannot “hold out-of-state non-ABA

law school graduates hostage in order to achieve

favorable treatment for its experienced lawyers who

graduated from ABA-approved law schools.” But

although Rule 203(a)(2)(ii) may advance the

interests of Pennsylvania attorneys who are

graduates of accredited law schools and not those

who are graduates of unaccredited law schools,

there is no evidence that Pennsylvania intended to

“harm” its attorneys who are graduates of

unaccredited law schools to advance the interests

of its attorneys who are graduates of accredited

law schools. Cf. United States Dep't of Agric. v.

Moreno, 413 U.S. 528 (1973).'® And at least under

was to encourage the federal government to lower its need

criteria. “If such were the case,” we said, Pennsylvania “would

essentially be in the position of ‘shooting hostages’ in an

attempt to bring about what it considered to be a politically

desirable result.” Id at 1155 n.14. And “the intentional

harming of a group to further some other governmental

interest is not a rational means to further that other interest.”

Id

i9. Moreno involved an equal protection challenge to § 3(e) of

the Food Stamp Act of 1964, which “exclude{d] from

participation in the food stamp program any household

containing an individual who Is unrelated to any other member

of the household.” 413 U.S. at 529. There was some suggestion

in the legislative history to § 3{e) that the requirement that

participating households consist of related individuals was

drawn “to prevent so-called ‘hippies’ and ‘hippie communes

from participating in the food stamp program.” Id at 534

(citation omitted). The Court made clear this objective was not

permissible.

[Ilf the constitutional conception of “equal protection

of the laws” means anything, it must at the very least

mean that a bare congressional desire to harm a

politically unpopular group cannot constitute a

— <= |

A-27

rational basis review, it is clear that states may

draw classifications “with substantially less than

mathematical exactitude,” City of New Orleans,

427 U.S. at 303, even though, in practice, such

classifications result in “some _ inequality,”

McGowan v. Maryland, 366 U.S. 420, 425-26

(1961).

Accordingly, we hold that Rule 203(a)(2)(li) meets

the minimum rationality requirement. There is

little question that Pennsylvania could further

advance its reciprocity interest by consistently

according reciprocal status on the basis of whether

a state treats Pennsylvania attorneys who are

graduates of unaccredited as well as accredited

law schools on similar terms. However, we will not

second guess the manner in which Pennsylvania

has chosen to implement Rule 203(a)(2)(1i), where

that Rule bears at least some reasonable relation

to Pennsylvania's interest in securing mutual

treatment for its attorneys seeking admission to

the bars of other states. Therefore, in light of the

deference we generally accord states as to

economic and social matters and Pennsylvania's

“especially great” interest in regulating its bar,

Goldfarb v. Virginia State Bar, 421 U.S. 773, 792

legitimate governmental interest. As a result. “al

purpose to discriminate against hippies cannot, in and

of itself and without reference to some independent

considerations in the public interest, justify the 197)

amendment [to the Act).°

Id at 534-55 (emphasis in original) (citation omitted). By

contrast, here there is no evidence that Pennsylvania enacted

Rule 203(a)(2)(i!) intentionally to harm its attorneys who are

graduates of unaccredited law schools, and it is clear that

Pennsylvania's reciprocity interest is legitimate.

A-28

(1975), we cannot say that Rule 203(a)(2)(Ii) is

unconstitutional.

Il

For the foregoing reasons, we will affirm the

district court's order granting summary judgment

for defendants.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

-

A-29

Appendix B

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF PENNSYLVANIA

DANA SCHUMACHER and LEROY HODGE,

Plaintiffs,

vs.

ROBERT N. NIX, JR., etal.,

Defendants.

MEMORANDUM AND ORDER

BARRON R. MCCUNE, Senior District Judge

August 27, 1991.

We consider the objections of the

plaintiffs to the report and recommendation

of the United States District court

Magistrate Judge. Plaintiffs allege that

Pennsylvania Bar Admission Rule

203(a)(2) (ii) denies them the opportunity

to sit for the Pennsylvania Bar examination

in violation of the Equal Protection, Due

Process and Privileges and Immunities

A-30

Clauses of the United States Constitution.

Plaintiffs seek declaratory and injunctive

relief under the Civil Rights Act of 1871,

42 U.S.C. § 1983. Both parties have moved

for summary judgment. For reasons set

forth below we accept the recommendation of

the Magistrate Judge and will deny

plaintiffs' motion for summary judgment and

grant the motion of defendants.

FACTS

To sit for the Pennsylvania Bar

examination an applicant must have

graduated from a law school accredited by

the American Bar Association ("ABA"). Pa.

B.A.R. 203(a) (i) and 102(a). Nevertheless,

an exception is carved out for certain

attorneys practicing law in reciprocal

states. Pennsylvania Bar Admission Rule

203(a) (2) (ii) affords a graduate of a law

school not accredited by the ABA the

a

A-31

opportunity to sit for the Pennsylvania Bar

examination provided that the applicant is

a member in good standing of the bar of a

reciprocal state and since admission to the

bar has practiced law ina reciprocal state

for 5 years.

Plaintiffs Dana Schumacher and Leroy

Hodge are graduates of the Peoples College

of Law located in California. The Peoples

College of Law has neither sought nor

obtained accreditation from the ABA.

Plaintiffs have taken and passed the First-

Year Law Students' Examination, the General

Bar Examination and the Professional

Responsibility Examination administered by

the Committee of Bar Examiners of the State

Bar of California. They have been admitted

to the California Bar and practiced law

continuously in California in excess of

A-32

five years. California is not a reciprocal

state.

Both plaintiffs have moved to

Pennsylvania. They have been admitted to

practice before the Untied States District

Court of the Western District of

Pennsylvania, the United States Court of

Appeals for the Third Circuit and the

United States Supreme Court. Neither

plaintiff is eligible to gain admission to

the Pennsylvania Bar because Rule

203(a) (2) (ii) prohibits them from sitting

for the Bar examination.

The objections state that the Report

(1) does not adequately address whether

Rule 203(a)(2)(ii) impinges on plaintiffs'

interstate travel, (2) does not discuss how

Rule 203(a)(2)(ii) furthers the state

objective of gaining a mutual benefit for

Pennsylvania's similarly situated

————aaEEeEEE————

A-33

attorneys, (3) misconstrued plaintiffs'

argument that Pennsylvania cannot waive the

ABA approved law school requirement for

attorneys from reciprocal states and not

waive it for attorneys from non-reciprocal

states, and (4) fails to discuss plaintiffs

claim that it is irrational to treat

graduates of foreign law schools more

favorably than graduates of non-ABA

approved schools from non-reciprocal

states.

DISCUSSION

Under Rule 56(c) of the Federal Rules

of Civil Procedure, the moving party is

entitled to judgment as a matter of law if

the movant demonstrates that there is no

genuine issue of material fact.

The threshold issue is what level of

Scrutiny is applicable to plaintiffs' claim

under equal protection analysis. The

leet

A-34

magistrate concluded that the rational

relationship applies while plaintiffs

reargue that Rule 203(a)(2)(ii) penalizes

plaintiffs' right to travel and thus should

be subjected to strict scrutiny.

The principal modern case recognizing

the right to travel as fundamental is

Shapiro v. Thompson, 394 U.S. 618 (1969).

In Shapiro, Pennsylvania and Connecticut

denied welfare benefits to residents who

had resided in a state less than one year

prior to their application for benefits.

The Court struck down the laws because the

two classifications of needy residents

(indigents with less than ae year's

residency and those residing in the state

for a year or more) were indistinguishable

from each other except for the length of

their residency. This was held to be an

invidious discrimination denying equal

A-35

protection of the laws. The Court's basis

for applying strict scrutiny was that it

"touche(dj] on the fundamental right of

interstate movement"=--the right to travel.

Id. at 638.

As set forth succinctly in Lutz v.

York, 899 F.2d 255 (3d Cir. 1990), the

right to travel strand of equal protection

has produced some confusion in its modern

use and development.

Three years after Shapiro the Court

decided Dunn v. Blumstein, 405 U.S. 330

(1972). In Dunn the court struck down a

durational residence requirement imposed as

a condition of voting. The law infringed

on the fundamental rights of voting and

right to travel and thus was subject to

strict scrutiny.

The Court followed the right to travel

strand of the equal protection doctrine in

A-36

Memorial Hospital v. Maricopa County, 415

U.S. 250 (1974). In Memorial Hospital the

Court struck down Arizona law which

required a year's residence in a county as

a condition to receiving non-emergency

medical treatment.

Sosna v. Iowa, 419 U.S. 393 (1975) was

the end of the first wave of right-to-

travel cases. Sosna upheld the minimal

durational residency requirement before

becoming eligible to be granted an in-state

divorce. Although Sosna did not impose

strict scrutiny on the challenged

provision, the minimal durational

requirement required at least some form of

heightened scrutiny.

The Court an approached the right to

travel from a different perspective in

Zobel _v. Williams, 457 U.S. 55 (1982). The

Court struck down an Alaska's scheme of

A-37

distributing surplus oil revenues’ to

residents in proportion to the length of

their residence in the state since

statehood in 1959. The Court denied any

close correlation between Alaska's dividend

program and the duration residence criteria

addressed in Shapiro, Dunn, Maricopa, and

Sosna. Id. at 58-59. The law was struck

down merely because it was related to "no

valid state interests which are rationally

served by the distinction it makes." Id.

at 65. Since the statute could not pass

the minimum rationally test the Court

expressly reserved whether any enhanced

scrutiny was called for because the law

burdened fundamental rights. Id. at 61.

The next right-to-travel case of the

1980'S was Hooper v. _ Bernalillo County

Assessor, 472 U.S. 612 (1985). There, a

New Mexico property tax exemption for Viet

yy

A-38

Nam veterans was limited to veterans who

had been residents of New Mexico before May

8, 1976. The court found the past

residency requirement was not even

rationally related to the state's two

asserted interests. With regard to the

state's most substantial interest -

rewarding veterans who entered or left the

military service from or to New Mexico -

the Court appeared to apply a close-fit

level of scrutiny.

In At n ew Yo =

Lopez, 476 U.S. 898 (1986), the contested

statute concerned New York's’ veteran's

preference in civil service employment to

veterans who had been New York residents at

the time they entered the military service.

The plurality opinion by J. Brennan applied

strict scrutiny on the basis of a right-to-

travel theory. The fifth and sixth votes

———

A-39

reviewed the contested statute under the

rational relationship test used in Zobel.

From a review of the Supreme Court

cases cited above it is difficult to

determine the type and severity of

deprivation which implicates strict

scrutiny under the right to travel branch

of equal protection. One common thread is

conditioning the receipt of a benefit on a

form of in-state residency. The contested

rule does not contain a _ Pennsylvania

durational residency requirement. Rule

203(a) (2) (ii) only applies if an attorney

is a member of the bar of a reciprocal

state. Furthermore, a fundamental right is

not involved and Rule 203 (a) (2) (ii) @cee

not involve a suspect classification. See

Edelstein v. Wilentz, 812 F.2d 128, 131-132

(3d Cir. 1987) (There is no fundamental

right to practice of law.). As is

A-40

discussed below, Pennsylvania has a valid

state interest in maintaining reciprocity

with its sister states. Although persons

Similarly situated to plaintiffs may be

reluctant to move to Pennsylvania, we do

not believe that the practical effect of

Rule 203(a)(2)(ii), inability to practice

law in Pennsylvania, restricts plaintiffs'

freedom of movement to such a degree that

Pennsylvania must have a compelling

interest for the rule. We agree with the

magistrate that Rule 203(a)(2)(ii) may

stand if it is rationally related to a

legitimate state goal.

Plaintiffs challenge the Rule

203(a) (2) (i) on the basis that it is not

designed to obtain a mutuality of benefits

for Pennsylvania's attorneys. As stated

above, the classification concerns

attorneys who have graduated from non-ABA

Se

A-41

approved law schools, are members of the

state bar and have practiced continuously

in the state for five years. Those

attorneys who have practiced in a

reciprocal state may sit for the bar

examination while those from non-reciprocal

states may not.

| Reciprocity provision “represent a

state's undertaking to secure for its

citizens an advantage by offering the

advantage to citizens of any other state on

condition that the other state make a

Similar grant." Hawkins v. Moss, 503 F.2d

1171, 1176-1177 (4th Cir. 1974). States

have a legitimate interest in securing

reciprocal_rights for their citizens. Id.

This interest is unrelated to the

competence of its bar. G i Vv.

Pringle, 399 F. Supp. 620, 624 (D. Col.

1975).

———

A-42

Threshold requirements for admission

to a state's bar “must be related to the

Singular objective of ensuring’ that

attorneys are honest and proficient in the

basis skills and knowledge of their

profession." Id. at 625. Rule 203(a) (2) (i)

of the Pennsylvania Bar Admission Rules

requires that all applicants wishing to sit

for the bar examination have graduated from

an ABA approved law school. That an

applicant comes from a non-reciprocal state

does not result in the denial of a license.

The notion of reciprocity usually

concerns whether or not an attorney can

waive the state's bar examination and

motion in. Pennsylvania's reciprocity

provisions are somewhat different. Rather

than waive the bar examination for all

experienced attorneys practicing in

reciprocal states, it permits graduates of

|

A-43

ABA approved schools to motion in (Pa.

B.A.R. 204) and graduates of non-ABA

approved schools to sit for the bar

examination (Pa.B.A.R. 203(a)(2)(ii)). The

practical result is to ease the burden of

relocation of experience attorneys from

reciprocal states.

Pennsylvania has a legitimate interest

in facilitating the relocation of its

citizens. Rule 203(a)(2)(ii) encourages

reciprocal states to lessen the burdens of

relocation of Pennsylvania attorneys by

reducing the burdens of admission to the

Pennsylvania bar only to those attorneys

from reciprocal states. Goldsmith, 399 F.

Supp. at 623. The fact that experienced

attorneys from non-reciprocal states are

treated differently from those admitted to

the bars of reciprocal states does not

render Rule 203(a)(2)(ii) invalid. See Id.

Te

A-44

at 624; Salibra v. Supreme Court of Ohio,

730 F.2d 1059 (6th Cir. 1984) ("[a]

plaintiff does not state a claim under

equal protection clause by showing that he

has not been granted a particular

privilege, when the privilege may be

granted to others similarly situated.").

Plaintiffs contend that treating

graduates of foreign law schools more

favorably than non-ABA approved domestic

law school graduates is violative of the

equal protection clause. Rule 205 of the

Pennsyivania Bar Admission Rules applies to

graduates of law schools not encompassed by

the accreditation activities of the ABA.

Rule 205 permits certain graduates of

foreign law schools to sit for the bar

examination after having completed 24

credit hours in 16 subjects in an

accredited American law school.

A-45

It is not clear that equal protection

analysis should apply in the first instance

to a comparison of American non-ABA

accredited law school graduates with

graduates of foreign law _ schools. By

definition a foreign law school is not

within the ABA's authority. A person who

attends law school in a foreign country

does not have the choice to attend an ABA-

accredited institution whereas in the

United States that choice exists. Thus,

graduates of foreign law schools are not

Similarly situated to graduates of non-ABA

approved law schools.

Even if we were to apply a rational

relationship test, Rule 205 would survive.

Pennsylvania has a substantial interest in

maintaining a competent bar and protecting

the public. ABA-law school approval has

been an accepted means. of ensuring

—————

A-46

competency. Where ABA accreditation does

not reach because of a law _ school's

location, Pennsylvania has made a rational

distinction between graduates of foreign

law schools and graduates of domestic law

schools. Rather than having a flat

prohibition against graduates of foreign

law schools, Pennsylvania has formulated a

rational procedure directed at securing

competent graduates of foreign law schools

who wish to practice in the Commonwealth.

An order follows.

BARRON P. MCCUNE

SENIOR UNITED STATES DISTRICT JUDGE

A-47

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF PENNSYLVANIA

DANA SCHUMACHER and LEROY HODGE,

Plaintiffs,

vs.

ROBERT N. NIX, JR., et al.,

Defendants.

Civil Action No. 90-1431

ORDER

AND NOW, August 27, 1991, having

reviewed the Magistrate Judge's Report and

the objections thereto, we accept the

recommendation of the United States

District Court Magistrate Judge. The

motion for summary judgment of plaintiffs

is denied. Defendants' motion for summary

judgment is granted.

BARRON P. MCCUNE

SENIOR UNITED STATES DISTRICT JUDGE

A-48

Appendix C

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 90-1431

DANA SCHUMACHER and LEROY HODGE,

Plaintiffs,

Vv.

ROBERT N. NIX, JR., et al.,

Defendants.

REPORT

GARY L. LANCASTER

United States Magistrate Judge

May 20, 1991

This is an action for declaratory and

injunctive relief under the provisions of

the Civil Rights Act of 1871, 42 U.S.C.

§1983. Plaintiffs contend that they are

denied the opportunity to sit for the

Pennsylvania Bar examination in violation

of the due process and equal protection

Clauses of the fourteenth amendment, U.S.

A-49

Const. amend. XIV, and rights secured by

the privileges and immunities clause of the

United States Constitution. Id., art. IV,

§ 2. Before the court are the parties’

cross motions for summary judgment. For

the reasons set forth herein, plaintiffs'

motion should be denied and defendants'

motion granted.

I. FACTS

The material facts are not in dispute.

Plaintiffs are graduates of the Peoples

College of Law located in Los Angeles,

California. Peoples College has not sought

nor obtained accreditation from’ the

American Bar Association ("ABA"). Upon

graduation, each plaintiff met the criteria

for admission to the California bar--which

does not require graduation from an ABA

accredited law school--and were duly

A-50

admitted to practice in that. state.

Thereafter, each practiced law in

California for at least five years.

Both plaintiffs have now moved to

Pennsylvania and both have been admitted to

practice before the United States District

Court for the Western District of

Pennsylvania, the United States Court of

Appeals for the Third Circuit and the

United States Supreme Court. Plaintiffs

now seek to sit for the Pennsylvania Bar

examination in order to gain admission to

the Pennsylvania Bar, but for the reasons

set forth herein, are precluded from doing

so. Hence this suit.

II. STANDARD OF REVIEW

Rule 56(c) permits a court to render

Summary judgment if it is "show[{n] that

there is no genuine issue as to any

A-51

material fact and that the moving party is

entitled to a judgment as a matter of law."

The party moving for summary judgment has

the burden of showing the absence of a

genuine issue of material fact. Adickes v.

S.H. Kress & Co., 398 U.S. 144, 157 (1970).

Nevertheless, "when a motion is made and

supported, the nonmoving party must produce

specific facts showing that there is a

genuine issue for trial, rather than

resting upon the assertions of pleading."

Jersey Central Power & Light Co. v,

Township of Lacey, 722 F.2d 1103,1109 (3d

Cir. 1985). cert. denied, 475 U.S. 1013

(1986); see Celotex Corp v. Catrett, 477

U.S. 317 (1986). Assertions in the form of

legal conclusions are insufficient to

create issues of material fact that would

preclude summary judgment. Securities &

A-52

Exchange Comm'n v. Ponastia, 614 F.2d 908,

914 (3d Cir. 1980).

III. DISCUSSION

A.

The general requirements for admission to

the Pennsylvania Bar are set forth in Rule

203 of the Pennsylvania Bar Admission

Ruies. The Rule sets forth two general

requirements which an applicant must meet

before being admitted. First, the applicant

must have graduated from a law _ school

accredited by the American Bar Association,

Rules 203(a) (2) (i), and 102(a); and second,

an applicant must take and pass a written

examination administered by the

Pennsylvania Board of Law Examiners. Rule

203(b). Unless an applicant has graduated

from an ABA accredited law school, he or

she may not’ sit for’ the required

A-53

examination. Since Plaintiffs are not

graduates of an ABA accredited law school,

they are ineligible to sit for the Bar

examination under the general provision.’

Nonetheless, under Rule 203(a) (2) (ii),

Pennsylvania will waive the educational

requirement and permit a graduate of a non-

ABA accredited law school to sit for the

examination provided the applicant is

already a member of the bar of a state that

‘. Plaintiffs do not challenge

Pennsylvania's general requirement of an

ABA approved education. Nor would such a

challenge prove valid. Pennsylvania is

among the majority of states that, as a

general requirement, limit admission to

graduates of ABA approved law _ schools.

Those cases which have addressed this

question have held, without exception, that

a state's requirement of an ABA approved

education does not violate any federally

protected right of non-ABA accredited

graduates. See Potter v. New Jersey Supreme

Court, 403 F. Supp. 1036 (D.N.J. 1975),

aff'd 546 F.2d 418 (3d Cir. 1976); Supp.

1036 (D. N>J> 1975), aff'd 546 F.2d 418 (3d

Cir. 1976): Huffma 4 °

Court, 372 F. Supp. 1175 (D. Mont.), aff'd

419 U.S. 955 (1974).

A-54

has a reciprocal agreement with

Pennsylvania, and has practiced law in that

reciprocal state for a period of five

years. Pennsylvania does not have a

reciprocal agreement with California, thus,

plaintiffs are also ineligible to sit for

the examination under Rule 203(a) (2) (ii).

It is this subsection of the Rule which

plaintiffs challenge as unconstitutional.

Plaintiffs challenge Rule

203 (a) (2) (ii) because it waives the

requirement of an ABA accredited education

for those applicants who are members of the

state bar of a reciprocal state, but it

will not waive that requirement for

Similarly educated applicants who are

members of the bar of a nonreciprocal

state. Plaintiffs contend that such a

distinction is not rationally related to a

A-55

valid state objective, and thus, violates

their right to equal protection of the law.

2

B.

We begin the analysis with certain

longstanding and uncontested principles

applicable to this area of law. First,

¢. Plaintiffs initially contended that

Rule 203(a) (2) (ii) also violated the

privileges and immunities clause and due

process of law. We need not dwell on these

claims. The privileges and immunities

clause was designed to "insure to a

citizens of State A who ventures into

State B the same privileges which the

citizens of State B enjoy." Lutz v. York,

899 F.2d 255, 262 (3d Cir. 1990) (citing

Toomer v. Witsell, 334 U.S. 385, 395

(1948). Here plaintiffs do not contend

that they are being treated differently

than similarly situated Pennsylvania

residents. On the contrary, it is because

they must meet the same _ educational

requirements which Pennsylvania residents

are obliged to meet which forms the basis

of this suit. Plaintiffs virtually

conceded as much at oral argument.

Plaintiffs also acknowledged that their due

process claim is substantive in nature,

thus susceptible to the equal protection

analysis.

A-56

each state has the inherent authority to

establish for itself what criteria an

attorney must meet before being admitted to

the bar of that state. Hawkins v. Moss,

503 F.2d 1171, 1175 (4th Cir. 1974), cert.

denied, 420 U.S. 928 (1975) (citing

authorities). That an attorney meets all

the criteria of and has even been admitted

to the bar of one state has no inherent

force or effect on whether he or she will

be admitted to the bar of another state.

id. at 1176. Each state has the authority

to require the applicant to meet its

criteria, independent of what a sister

state may require. Id. See generally

Whitfield Vv. Illinois Board of Law

Examiners, 504 F.2d 474, 476 n. 5, 477 n.7

(7th Cir. 1974). The criteria can not be

arbitrary or promote invidious

discrimination, but as long as the criteria

A-57

are reasonably related to a valid state

objective, they do not offend any federally

protected rights of those that do not meet

A-58

the criteria.’ Schware v. Board of Bar

Examiners, 353 U.S. 232 (1957).

$. Plaintiffs contend that the

Classification at issue penalizes their

right to travel, a recognized

constitutionally protected right, and thus,

the Commonwealth must show the

classification is necessary to promote a

compelling governmental interest. They

cite Shapiro v. Thompson, 394 U.S. 618, 634

(1969), and other cases. However, as

explained in Shenfield v. Prather, 387 F.

Supp. 676, 683-86 (N.D. Miss. 1974,

following Huffman v. Montana Supreme Court,

372 F. Supp. 1175, restrictions on the

ability to practice law do not infringe the

right to interstate travel and thus are not

subject to. strict scrutiny. See also

Goldsmith v. Pringle, 399 F. Supp. 620, 627

n. 7 (D. Colo 1975) (reciprocity agreement

does not impinge on right to travel).

Moreover, the courts have consistently

held that there is no constitutional or

inherent right to practice law. Thus,

state bar admissions rules do not offend

equal protection if the rules are

reasonably related to a valid state

objective. Schware v. Board of Bar

Examiners, 353 U.S. 232 (1957); Sturm v.

Clark, 835 F.2d 1009, 1016-17 (3d Cir.

1987) (citing authorities) ; stri

Clark, 765 F.2d 655 (7th Cir. 1985), cert.

denied, 474 U.S. 1906; Murphy v. State

Board of Law Examiners, 429 F. Supp. 16, 18

(E.D. Pa. 1977).

A-59

The courts are not unfamiliar with

equal protection challenges to state bar

admission rules that wave one or more of

the general requirements for admission for

applicants from reciprocal states, but not

for applicants from nonreciprocal states.

This issue has been raised in numerous

lawsuits. The equal protection challenge

in prior cases--as in part here-- is that a

difference in treatment based on whether

reciprocal agreements do or do not exist

between the similarly situated applicants'

home states, is not reasonably related to

the state's objective in assuring the

competency of those it admits to its bar.

That may be so and courts have held as

much. See Goldsmith v. Pringle, 399 F.

Supp. 620, 625 (D. Colo. 1975); see also

wn v. Supreme Court of Virginia, 359 F.

A-60

Supp. 549 (E.D. Va.), aff'd 414 U.S. 1034

(1973).

However, unlike the general bar

admission requirements, assuring competency

of the bar is not the state objective

advanced by reciprocity agreements. The

objective advanced by reciprocity

agreements is to obtain a mutuality of

benefits for that state's attorneys.

Specifically, a state's reciprocity

provision secures for its attorneys who

decide to relocate, the advantage of

favorable terms of admission to another

state's bar by offering that same advantage

to attorneys of such other states that will

reciprocate. This, of course, results in

the state treating similarly qualified

attorney applicants differently based on

whether they came from a reciprocal or non-

reciprocal state. Yet, the courts that

A-61

have addressed this objective have, without

exception, held that it is sufficiently

valid to warrant the difference in

treatment and passes equal protection

muster. See Hawkins v. Moss, 503 F.2d at

1177-78; Shenfield v. Prather, 387 F. Supp.

676 (N.D. Miss. 1974); Knowlton v. Board of

Law Examiners, 513 S.W.2d 788, 792 (Tenn.

1974); Lane v. West Virginia State Board of

Law Examiners, 295 S.E. 2d 670 (W.Va. 1982)

(concurring opinion). See also Goldsmith

v. Pringle, 399 F. Supp. 620.

Plaintiffs seek to distinguish the

reciprocity cases by contending that, in

the traditional case, the admission

requirement sought to be waived by the

applicant from the nonreciprocal state was

the requirement of having to sit for the

competency examination. In those cases,

even without the waiver, the applicant was

A-62

still not completely precluded fron-

admission, he or she simply had to sit for

and pass the examination. Here, the

requirement sought to be waived is

graduation from an ABA accredited law

school. Plaintiffs proffer that because

Pennsylvania refuses to waive the

educational requirement for them, they

cannot even sit for the examination,

completely precluding them from admission

to the Pennsylvania bar. Thus, according

to plaintiffs, this case is more egregious

than and distinguishable from the typical

reciprocity case.

In support of their argument,

plaintiffs direct us to language and

abstraction primarily gleaned from

authorities which have either invalidated,

or referred to authorities which have

invalidated, a state bar's’ residency

—

A-63

requirement.* Those cases generally hold

that a residency requirement that

completely precludes non-residents’ from

admission to the bar, but does not advance

the state's objective in assuring the

integrity and competency of the bar,

violates equal protection and/or’ the

privileges and immunities clause.

Plaintiffs' authorities and arguments

are inappropriate to the issue here.

Plaintiffs are correct that they are

“ Supreme Court of New Hampshire v.

Piper, 470 U.S. 274, 179 (1985) (residency

requirement violates privileges and

immunities); Supreme Court of Virginia v.

Friedman, 487 U.S. 59 (1988) (residency

requirement violates privileges and

immunities); Lowrie v. Goldenhersh, 716

F.2d 401, 412 (7th Cir. 1983) (court

referred to cases which struck down on

equal protection grounds bar admission

rules which required applicants to reside

in the licensing state for one year prior

to bar application). See also A & P Tea

Co, v, Cottrell, 424 U.S. 366 (1976)

(struck down reciprocity provision that

prohibits, rather than regulates,

interstate commerce).

A-64

effectively precluded from admission to the

Pennsylvania Bar; yet, any threshold

requirement serves as an absolute bar to

those who do not meet it. However, unlike

the residency requirement cases,

plaintiffs' preclusion is not a result of

the challenged Rule. Plaintiffs are

precluded because they fail to meet

Pennsylvania's threshold educational]

requirement. That Pennsylvania will waive

this obstacle for others but not for them

does not ipso facto violate equal

protection. It simply means that the

difference in treatment must advance a

valid state objective.

In other words, there is a clear

distinction that can be drawn, both in law

and in logic, between striking down a

preclusive residency requirement because it

does not advance a valid state objective,

A-65

and on the other hand, upholding this Rule

which waives the normal educational

requirement for some applicants in order to

advance a valid state objective. Unlike a

residency requirement, waiving the

educational requirement for attorneys from

reciprocal states represents a difference

in treatment which is rationally related to

a valid state objective, i.e. gaining the

mutual benefit for Pennsylvania's similarly

educated attorneys. That plaintiffs are

not among those benefitting from the Rule

does not invalidate the Rule.

We also reject plaintiffs argument

that they are precluded from taking the

examination because they formerly lived and

practiced in the non-reciprocal state of

California. This is not so. Plaintiffs

are precluded from sitting for’ the

examination because they do not’ wmeet

A-66

Pennsylvania's threshold educational

requirement. Nothing in the Pennsylvania

Bar Admission Rules prohibits California

attorneys from sitting for the Pennsylvania

bar examination, but they must meet

Pennsylvania's educational requirement--not

California's--before doing so. Nor are we

Swayed by plaintiffs' recurring theme that

they could now sit for the Pennsylvania Bar

examination had they been admitted to and

practiced for five years in a reciprocal

state, rather than California. This is

true. However, this truism carries with it

no greater legal significance than the

equally true observation that they could

now sit for the Pennsylvania Bar exam had

they attended an accredited law school,

rather than Peoples College. Both

statements are true, but neither

A-67

establishes a violation of equal

protection.

Plaintiffs next argue that assuming

that the system of reciprocity is generally

related to the valid state objective of

obtaining a mutuality of benefits for the

respective states' Similarly situated

attorneys, Rule 203(a)(2)(ii) does not

advance that objective. Plaintiffs contend

that since California allows non-ABA

graduates to sit for the bar, it already

accommodates Pennsylvania's non-ABA

graduates. According to plaintiff,

Pennsylvania's true objective in

promulgating Rule 203(a)(2)(ii) is not to

confer a benefit to "its few Pennsylvania

lawyers"? who are not ABA accredited law

> The ABA accreditation requirement was

not made an explicit part of Pennsylvania's

Bar admission rules until 1971. 441 Pa

xxxi. Prior to that, the rules required

only that the applicant graduate from an

A-68

school graduates, but to somehow force

California into entering a reciprocity

agreement with Pennsylvania which would run

solely to the benefit of Pennsylvania's ABA

accredited law school graduates.

Specifically, plaintiffs aver that the true

Purpose of the Rule is to pressure

California into granting Pennsylvania's ABA

graduates a waiver from having to sit for

the California bar examination should any

choose to relocate there.

The existence of such a cryptic motive

underlying Rule 203(a)(2)(ii) is totally

unfounded in the record. Plaintiffs have

"approved" law school. Additionally, there

are certainly non-ABA graduates. from

reciprocal states, who initially gained

admission to the Pennsylvania Bar through

Rule 203(a) (2) (ii). Therefore, although

the record is silent as to the number of

Pennsylvania attorneys who did not graduate

from ABA accredited law schools, we cannot

conclude as factually established, that

this class of attorneys is so "few," as to

mock the apparent purpose of the rule.

A-69

submitted absolutely no evidence that would

support such a finding. Nor is there a

factual basis to support plaintiffs'

proposition that Rule 203(a)(2)(ii) does

not, nor was it intended to, benefit the

Class of Pennsylvania lawyers it purports

to benefit. It is fundamental that a party

may not rely on unsupported allegations to

defeat a motion for summary Sudgeent.

Celotex Corp. v. Catrett, 477 U.S. 313

(1986). It is equally fundamental that

unsworn statements of purported fact made

by counsel in briefs do not meet the

requirements of Rule 56 and are

insufficient to repel summary judgment.

Schoch v. First Fidelity Bancorporation,

912 F.2d 654, 657 (3d Cir. 1990).

Moreover, even if we accept that the

number of non-ABA graduates practicing in

Pennsylvania and who might benefit from the

A-70

reciprocity provisions of Rule

203(a)(2) (ii) is small that does not, as a

matter of law, render illegitimate the

state's valid objective in conferring upon

that small group the benefits of

reciprocity.® Neither law nor logic

compels that conclusion.

IV. CONCLUSION

We have carefully considered all of

plaintiffs' arguments, including those

relating to the treatment Pennsylvania

6 Plaintiffs also point out that

several states who have aé_= reciprocal

relationship with Pennsylvania do not,

under any circumstances, admit graduates of

non-ABA accredited schools. Thus, as to

these states, Pennsylvania has_ granted

their non-ABA graduate practicing attorneys

a greater benefit than is being granted in

return. However, this argument fails to

consider that those states, by definition,

do not have non-ABA graduate practicing

attorneys. Thus, Rule 203(b)(2)(ii) is

moot as to those reciprocal states.

A-71

affords to graduates of foreign law

schools, the deterrent impact the disputed

Rule may have on non-ABA_ accredited

graduates' decisions whether to migrate to

Pennsylvania, and that Rule 203(a) (2) (ii)

is apparently unique among the states.

Although plaintiffs' arguments are

extensive and well stated, we find them to

be without merit. .

Finally, we are not unsympathetic to

plaintiffs. We have no reason to dispute

that they are, as proffered, intelligent

individuals who could competently practice

law in the Commonwealth of Pennsylvania.

However, it is not our function to question

the wisdom or even the harshness of

Pennsylvania's rules for admission to its

bar. Our inquiry is limited solely to

whether the rules violate some federally

protected right. We conclude that they do

A-72

not. Therefore, defendants' motion shoulda

be granted, plaintiffs' motion denied.

United States Magistrate Judge

Dated: May 20, 1991

A-73

Appendix D

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 91-3666

DANA SCHUMACHER, LEROY HODGE,

Appellants,

Vv.

ROBERT N. C. NIX, JR., et al.

(D.C. Civ. No. 90-1431)

SUR PETITION FOR REHEARING

July 8, 1992

Present: SLOVITER, Chief Judge, BECKER,

STAPLETON, MANSMANN, GREENBERG, SCIRICA,

COWEN, NYGAARD, ALITO and ROTH, Circuit

Judges, and DEBEVOISE*, District Judge

*As to panel rehearing only.

A-74

The petition for rehearing filed by

appellants 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 service not having voted

for rehearing, the petition for rehearing

by the panel and the Court in banc, is

denied.

BY THE COURT,

Circuit Judge

Dated: July 8, 1992

A-75

Appendix E

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 91-3666

DANA SCHUMACHER, LEROY HODGE,

Appellants,

v.

ROBERT N. C. NIX, JR., et al.

On Appeal from the United States District

Court for the Western District of

Pennsylvania

(D.C. Civ. No. 90-1431)

June 3, 1992

Present: Greenberg and Scirica, Circuit

Judges, and Debevoise, District

Judge

JUDGMENT

A-76

This cause came on to be heard on the

record from the United States District

Court for the Middle District of

Pennsylvania and was argued by counsel

April 6, 1992.

On consideration whereof, it is now

here ordered and adjudged by this Court

that the order of the said District Court

entered August a7, 1991 granting |

defendants' motion for Summary judgment,

be, and the same is hereby affirmed. Costs

taxed against the appellants. All of the

above in accordance with the Opinion of

this Court.

ATTEST:

Clerk

>

i

77

Appendix F

CONSTITUTIONAL AND STATUTORY PROVISIONS

Fourteenth Amendment to the

Constitution of the United States:

All persons born or naturalized in the

United States and subject to the

jurisdiction thereof, are citizens of

the United States and of the State

wherein they reside. 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 process of law; nor deny to any

person within its jurisdiction the

equal protection of the laws.

Article IV, Section II (1) of the

Constitution of tre United States:

The Citizens of each State shall be

entitled ti all Privileges and

Immunities cf Citizens in the several

States.

A-78

APPENDIX G

RELEVANT PENNSYLVANIA BAR ADMISSION RULES

RULE 203. ADMISSION OF GRADUATES OF

ACCREDITED AND UNACCREDITED INSTITUTIONS

(a) Bar Examination. The general

requirements for permission to sit for the

bar examination are:

(1) Receipt of an undergraduate

degree from an accredited college or

university or the receipt of an education

which, in the opinion of the Board, is the

equivalent of an undergraduate college or

university education.

(2) (i) Except as provided in

Subparagraph 2(ii) of this Rule, completion

of the study of law at and receipt without

exception of an earned Bachelor of Laws or

Juris Doctor degree from an accredited law

school. See Rule 205 (relating to

admission of graduates of foreign

institutions) for standards applicable to

graduates of foreign law schocls; or

(ii) Completion of the study of law

at and receipt without exception of an

earned Bachelor of Laws or Juris Doctor

degree from an unaccredited law school

located within the boundaries of the United

States of America, provided that the

applicant is a member of the bar of a

reciprocal state and meets the following

qualifications:

(A) Presentation of a

certificate from the highest court or

A-79

agency of such state having

jurisdiction over admission to the bar

and the practice of law stating that

the applicant is in good standing at

the bar of such court or such state.

(B) Presentation of proof

satisfactory to the Board that the

applicant, while continuously engaged

in the practice of law in any state or

states outside of this Commonwealth

and subsequent to admission in a

reciprocal state, has for a period of

five years;

(i) practiced law in a

reciprocal state or states outside

this Commonwealth; or

(ii) engaged full-time in the

teaching of law at one or more

accredited law schools in the United

States; or

(iii) served on active duty in

the United States military service, as

a judge advocate or law specialist, as

those terms are defined in the Uniform

Code of Military Justice, 10 U.S.C.

Sec. 801, as amended, regardless of

the location of the service.

Service under subparagraphs (i), (ii)

and (iii) may be combined to satisfy

the five year service requirement of

this Paragraph.

(3) Absence of prior conduct by the

applicant which in the opinion of the Board

indicates character and general

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qualifications (other than scholastic)

incompatible with the standards expected to

be observed by members of the bar of this

Commonwealth.

(b) Admission to the Bar. The

general requirement for admission to the

bar of this Commonwealth is satisfactory

completion of the bar examination

administered by or under the authority of

the Board.

Amended effective April 25, 1980; amended

December 17, 1981, effective 30 days after

January 9, 1982; amended effective June 30,

1983; August 22, 1986.

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RULE 205. ADMISSION OF GRADUATES

OF FOREIGN INSTITUTIONS

(a) General Rule. The Board, under

such standards, rules and procedures as it

may prescribe, may extend the provisions of

Rule 203 (relating to the admission of

graduates of accredited and unaccredited

institutions) to any applicant who has

completed 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:

(1) 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 admission to the bar and

the practice of law or

(2) who is a citizen of the United

States of America and because of such

citizenship is not eligible for admission

to the practice of law in such foreign

country.

(b) Law Study Required. Unless

otherwise provided the Board, applicants

who meet the provisions of subparagraphs

(a) (1) or (a) (2) of this Rule may apply to

sit for the Pennsylvania Bar Examination

provided they have successfully completed

24 credit hours in an accredited American

law school. These 24 credit hours must be

taken in the following subjects: Conflicts

of Law; Constitutional Law; Contracts;

‘

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Corporations; Criminal Law; Decedents'!

Estates; Evidence; Family Law; Federal

Civil Procedure; Federal Income Taxes

(personal Only); Professional

Responsibility; Real Property; Torts;

Uniform Commercial Code, Art. II - Sales;

Uniform Commercial Code, Art. III -

Commercial Paper; Uniform Commercial Code,

Art. IX - Secured Transactions. No more

than 4 credit hours in any one subject

Shall be counted toward this requirement.

Amended December 17, 1981, effective 30

days after January 9, 1982; amended

effective August 22, 1986.