Opposition Brief — Schumacher v. Nix

—

No. 92-649 | DEC 16 1992

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

DANA SCHUMACHER AND LEROY HODGE,

Petitioners

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

Respondents

Petition for Writ of Certiorari to The

United States Court of Appeals

For the Third Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

A. TAYLOR WILLIAMS, ESQUIRE

(Counsel of Record)

Administrative Office of PA Courts

1515 Market Street, Suite 1414

Philadelphia, PA 19102

(215) 560-6300

Attorney for Respondents

PACKARD PRESS / LEGAL DIVISION, 1617 JFK BOULEVARD, PHILA, PA 19103 (215) 563-9000

niacin aici

QUESTION PRESENTED

Whether this Court should issue a writ of certiorari to

the United States Court of Appeals for the Third Circuit

where the Circuit Court held that Pennsylvania may

constitutionally preclude non-ABA accredited law school

graduates from sitting for the Pennsylvania bar examina-

tion unless those graduates are members of the bar of a

reciprocal state?

PARTIES TO THE PROCEEDING

The parties to the proceedings below are correctly set

forth by Petitioner. However, James T. McDermott, Jus-

tice of the Supreme Court of Pennsylvania, is deceased.

Frank J. Montemuro has succeeded to the position of

Justice of the Supreme Court of Pennsylvania formerly

held by the late Justice McDermott. In accordance with

Rule 35.3, Supreme Court Rules, Justice Montemuro is

automatically substituted as a party for the purposes of

proceedings in this Court.

TABLE OF CONTENTS

Page

PE Cee eT ee ree i

Parties to the Proceedings...................eces: ii

IE ETE PCE T CRETE OTOP EL Vv

ee See ie a alana 4k bx 44.5 ob ow at oes 1

UN WE PUMNDOUNOURIIR 5 5 ssc vce sc ccwasccesccaces 2

Constitutional Provisions and Statutes Involved ..... 2

I ek dc was alk'e Wd eo oe ee ee 2

Reasons for Denying the Writ ...........:........ 3

A. There are no “special and important reasons”

for granting the writ of certiorari ........... 3

1. The Opinion of the Circuit Court is con-

sistent with precedent.................. 4

a. The Opinion of the Circuit Court does

not conflict with this Court’s decision in

SS ES a reer a eee 5

b. The right to travel analysis articulated

by the Circuit Court comports with this

CO I 6 vb ik kcecnccncaccece 5

c. The Opinion of the Circuit Court does

not conflict with rulings of other circuit

and district Courts .................:; 6

d. Pennsylvania Bar Admission Rule 203

does not violate the Privileges and Im-

munities Clause of Article IV of the

ECT Tee ee rer ere 7

e. Pennsylvania’s bar admission rule per-

taining to graduates of foreign law

schools is irrelevant to this Court’s in-

quiry as to whether certiorari should be

TABLE OF CONTENTS — (Continued)

2. The Opinion of the Cicruit Court is not “at

a. The Circuit Court properly found the

contested classification constitutional... 10

b. Pennsylvania’s valid state interest in

securing advantages for its lawyers has

been articulated in accordance with the

decisions of this Court............... 1]

Conclusion

iv

TABLE OF AUTHORITIES

Cases: Page

Appeal of Murphy 482 Pa. 43, 393 A.2d 369 (1978),

cert. denied and appeal dismissed sub nom. Mur-

phy v. Pennsylvania State Board of Bar Examin-

UG, GOP Vid ee CTOs ook oa 0 cb k bs eee seeues 8

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

Mis GP ME ek kn Sed caee Cone oe cues Cee. 5

City of New Orleans v. Dukes, 427 U.S. 297 (1976)

ON CUI. 0 ki erciaaneeiccerene eee 11

Donnelly v. Boston College, 558 F.2d 634 (1st Cir.

1977) (per curiam), cert. denied, 434 U.S. 987

fs ; ng erat Mk rm Mahe a Ry yh uh fe 6

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) . 10

Hackin v. Lockwood, 361 F.2d 499 (9th Cir. 1966)... 6

Harris v. Louisiana State Supreme Court, 334 F.

Supp. 1289 (E.D. La. 1971).................-. 6

Hawkins v. Moss, 503 F2d 1171 (4th Cir.), cert.

denied, 420 U.S. 928 (1974).............02-0.. 4,9

Hicks v. Miranda, 422 U.S. 332 i See 6

Huffman v. Montana Supreme, F. Supp. 1175 (D.

Mont. 1974) (three judge court) affd, 419 U.S.

5 OU... ss. eke. ee Ee 6

In re Application of Hansen, 275 N.W. 2d 790 (Minn.

1978), appeal dismissed, 441 U.S. 938 (1979).... 6

In re Lockwood, 154 U.S. 116 (1894) .............. 4

Layne & Bowler Corp. v. Western Well Works, Inc.,

See Wis Be Cs 4 Wada ose ib ska 3

Lombardi v. Tauro, 470 F.2d 798 (1st Cir. 1972), cert.

Gented, 412 O.3. BED OTT) 5onk ck ccccesccsaccs 6

Vv

TABLE OF AUTHORITIES — (Continued)

Cases: Page

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

| nn mea r SOE I. 5

Moore v. Supreme Court of South Carolina, 447

F.Supp 527 (D.S.C. 1977), aff'd, 577 F.2d 735

(4th Cir. 1978); cert. denied, 439 U.S. 984

(GOTO kn venns tmaneds dgnaeeees ree 6

Murphy v. Egan, 498 F. Supp. 240 (E.D. Pa. 1980). 6

Murphy v. State Board of Law Examiners, 429 F.

Semen. 16 GT FA Bc és kes ves ceeeseeees 6

Nordlinger v. Hahn, 505 U.S. __, 120 L. Ed. 2d 1,

0 ere re rrr ies 11

Pappanastos v. Board of Trustees, etc., 615 F.2d 219

(ee Os. DON ok oven etnscateeaueeeeuee eee 6

Potter v. New Jersey Supreme Court, 403 F. Supp.

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

(See Cae. Se vn tncxdkanduedesoec eee 6

Rice v. Sioux City Memorial Park Cemetery, 349 U.S.

FO CORE < ok cccncnuceusece te ceksee eee 3

Schware v. Board of Bar Exam. of State of N.M., 353

6, SO ....2.... eee 5

Shenfield v. Prather, 387 F. Supp. 676 (N.D. Miss.

rt HR 6

Supreme Court of New Hampshire v. Piper, 470 U.S.

$78 (0008... .« oxo<nccece ee 7

Wessel v. Pennsylvania Board of Law Examiners, 327

Misc. Dkt.-21 (Penna. Jan. 4, 1979), appeal

Giesninsed 665 FB. GF vc kv xs 0000 ok saneeee 6

Zobel v. Williams, 457 U.S. 55 (1982) ............. 5

TABLE OF AUTHORITIES — (Continued)

Constitution, Statutes and Regulations: Page

Be Wirth tars SE BE CED nikon ccc cdvsancviccccins 2

oe Se ee re 2,4

Rule 10.1, Supreme Court Rules ................. 3, 4

Rule 35.3, Supreme Court Rules ................. ii

vii

a

No. 92-649

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

DANA SCHUMACHER AND LEROY HODGE,

Petitioners

v.

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

Respondents

Petition for Writ of Certiorari to The

United States Court of Appeals

For the Third Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Respondents, Robert N.C. Nix, Chief Justice of the

Supreme Court of Pennsylvania, et al, (Respondents),

respectfully oppose Petitioners’ writ of certiorari to review

the judgment of the United States Court of Appeals for the

Third Circuit.

OPINIONS BELOW

The Order of the Court of Appeals for the Third

Circuit dated July 8, 1992, denying rehearing, has not

been reported and is reproduced in Petitioners’ Appendix

D at A-73 and A-74.

The Opinion and Judgment Order of the Court of

Appeals for the Third Circuit is reported at 965 F. 2d 1262,

and is reproduced in Petitioners’ Appendix A, at A-l

1

2

through A-28. The Opinion of the District Court has not

been reported; it is reproduced in Petitioners’ Appendix B

at A-29 through A-47. The Report of the Magistrate has not

been reported; it is reproduced in the Petitioners’ Appen-

dix C at A-48 through A-72.

STATEMENT OF JURISDICTION

Petitioners invoke this Court’s jurisdiction under 28

U.S.C. Section 1254 (1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Pennsylvania Bar Admission Rules at issue are set

forth in Petitioners’ Appendix at App. G, at A-78 through

A-82. The Equal Protection Clause of the Fourteenth

Amendment and the Article IV Privileges and Immunities

Clause are set forth in Petitioners’ Appendix. at App. F, at

A-77.

STATEMENT OF THE CASE

Petitioners are graduates of a non-ABA accredited law

school, and have practiced law for five or more years in

California, a state which does not grant reciprocity to

Pennsylvania lawyers.

Pennsylvania's general rule is that only graduates of

ABA-accredited law schools may sit for the Pennsylvania

Bar Examination. Pa. B.A.R. 203 (a)(2)(i). The sole excep-

tion is for graduates of non-ABA accredited law schools

who are members in good standing of the bar of a state

which holds a “reciprocal” agreement with Pennsylvania,

and who have practiced law in that reciprocal state for five

years.

Thus, Pennsylvania's provision waives the threshold

educational requirement for admission for applicants from.

reciprocal states, but not for applicants from nonreciprocal

states. The lower courts found no impingement of a

fundamental right, no suspect classification, and deter-

mined that the state advanced a valid state objective for the

rule.

3

REASONS FOR DENYING WRIT

A. No “special and important” reasons exist for granting the

writ of certiorari.

A review on writ of certiorari is a matter of judicial

discretion, and will be granted “only when there are

special and important reasons therefore.” Rule 10.1, Su-

preme Court Rules. These “special and important reasons”

include: a conflict between United States courts of appeal

on the same matter; a conflict between a state court of last

resort and a United States court of appeals; when a state

court or United States court of appeals decides a question

of federal law in a way which conflicts with an opinion of

the United States Supreme Court; or where a United

States court of appeals has decided an important question

of federal law which “should” be settled by the United

States Supreme Court. Rule 10.1 (a)-(c), Supreme Court

Rules. Although the list is not exhaustive, none of these

issues is present in this case, and Petitioners’ asserted

reasons do not merit this Court’s grant of certiorari.

Mr. Chief Justice Taft, speaking for a unanimous

court, has stated:

«<<

——

. it is very important that we be consistent in not

granting the writ of certiorari except in cases involving

principles the settlement of which are important to the

public, as distinguished from that of the parties, and in

cases where there is a real and embarrassing conflict of

opinion between the Circuit Courts of Appeals.” Rice

v. Sioux City Memorial Park Cemetery, 349 U.S. 70,

79 (1955), citing Layne & Bowler Corp. v. Western

Well Works, Inc., 261 U.S. 387 (1923).

Petitioners offer no compelling reason as to why this

Court should grant certiorari. Without exploring the mer-

its of the case, the instant response will address Petitioners’

arguments in support of certiorari seriatim, in accordance

with the numbered paragraphs set forth in the Petition.

4

1. The Opinion of the Circuit Court is consistent with

precedent.

The Opinion of the Third Circuit Court of Appeals

does not conflict with Supreme Court decisions cited by

Petitioners which would require strict scrutiny of the

challenged Pennsylvania Bar Admission Rule.

Pennsylvania's general rule, as noted above, is that

only graduates of ABA-accredited law schools may sit for

the Pennsylvania Bar Examination. Pa. B.A.R.203 (a)(2)(i).

The sole exception is for graduates of non-ABA accredited

law schools who are members in good standing of the bar of

a state which holds a “reciprocal” agreement with Penn-

sylvania, and who have practiced law in that reciprocal

state for five years.

Thus, Pennsylvania's provision waives the threshold

educational requirement for applicants from reciprocal

states, but not for applicants from nonreciprocal states.

This difference in treatment must advance only a valid

state objective; it does not involve a suspect classification

or invidious discrimination, or impinge on any fundamen-

tal right which would trigger stricter scrutiny.

There is no inherent right to practice law in the state

courts until the individual applicant has established the

requisite qualifications prescribed by the state. In re

Lockwood, 154 U.S. 116 (1894). A license to practice law

granted in one state does not confer an absolute right to

practice law in another state. Hawkins v. Moss, 503 F.2d

1171, 1175-76 (4th Cir.), cert. denied, 420 U.S. 928 (1974).

Neither general principles of comity nor any constitutional

provision require the respective states to admit to their

bars attorneys admitted in other jurisdictions. Id. States

have both a duty and a right to regulate the practice of

professions within their borders; federal courts should not

interfere with such internal regulations unless those regu-

lations invidiously discriminate against a certain class of

citizens, or are in no way related to a legitimate state

purpose.

5

a. The Opinion of the Circuit Court does not conflict

with this Court’s decision in Schware.

A state's professional licensing statute is deemed con-

stitutional if it is rationally related to a valid state objective.

Schware v. Board of Bar Exam. of State of N.M., 353 U.S.

232 (1957). The decisions of the lower courts do not, as

Petitioners argue, contravene Schware. Petitioners are

excluded from sitting for Pennsylvania’s Bar Examination

not because they are “Republican” or “Negro” or

“member[s] of a particular church.” Id. 353 U.S. at 239.

Petitioners are excluded because they do not meet the

threshold educational requirement, nor come under the

sole exception to that requirement. Schware did not

address reciprocity, nor did it preclude reciprocity as a

criterion.

b. The right to travel analysis articulated by the

Circuit Court comports with this Court’s decisions.

The Opinion of the Circuit Court is not in conflict with

those opinions of the United States Supreme Court cited

by Petitioners. Those decisions hold that durational resi-

dency requirements to obtain various governmental enti-

tlements denied equal protection of the law to persons

exercising their right to interstate travel. Memorial Hospi-

tal v. Maricopa County, 415 U.S. 250 (1974), Zobel v.

Williams, 457 U.S. 55 (1982); Attorney General of New

York v. Soto-Lopez, 476 U.S. 898 (1986). The instant case

does not present a residency requirement of any kind.

Moreover, the Circuit Court recognized and reviewed

each of the cases cited by Petitioners, and satisfied itself

that its right to travel analysis in the instant case was in

accord with this Court’s precedent as cited by Petitioners.

Appendix, A-9 through A-16.

6

c. The Opinion of the Circuit Court does not conflict

with rulings of other circuit and district courts.

While at one time, bar admissions standards varied

substantially from state to state, the present principal

distinction is among those states which allow non-ABA

accredited law graduates to sit for their bar examination,

and those which require graduation from an

ABA-accredited law school in each instance, without ex-

ception. Either of these paths meets constitutional require-

ments; no conflict exists between those lower courts which

have considered this issue.1 Pennsylvania's rule, which

treads a middle path to encourage reciprocity, is not

unconstitutional for doing so, particularly since, as the

lower courts noted, Pennsylvania is entitled to bar all

graduates of non-accredited law schools from sitting for the

l. The federal courts have consistently rejected constitutional

attacks upon the requirement of state bars that their members be

graduates of ABA accredited law schools. Huffman v. Montana Su-

preme, F. Supp. 1175 (D. Mont. 1974) (three judge court) affd, 419

U.S. 955 (1974); Wessel v. Pennsylvania Board of Law Examiners, 442

U.S. 907 (1979), dismissing appeal for want of substantial federal

question, 327 Misc. Dkt. 21 (Penna. Jan. 4, 1979); In re Application of

Hansen, 441 U.S. 938 (1972), dismissing appeal for want of substantial

federal question, 275 N.W. 2d 790 (Minn. 1978); see generally, Hicks

v. Miranda, 422 U.S. 332 (1975). [Dismissal for want of substantial

federal question is a decision on the merits.] Hackin v. Lockwood, 361

F.2d 499 (9th Cir. 1966); Lombardi v. Tauro, 470 F.2d 798 (1st Cir.

1972), cert. denied, 412 U.S. 919 (1977); Moore v. Supreme Court of

South Carolina, 447 F.Supp 527 (D.S.C. 1977), affd, 577 F.2d 735

(4th Cir. 1978); cert. denied 439 U.S. 984 (1978); Donnelly v. Boston

College, 558 F.2d 634 (1st Cir. 1977) (per curiam), cert. denied, 434

U.S. 987 (1977).

Other precedent from which review was not sought but which

upholds the accreditation requirement include, inter alia: Shenfield v.

Prather, 387 F. Supp. 676 (N.D. Miss. 1974) (three judge court);

Potter v. New Jersey Supreme Court, 403 F. Supp. 1036 (D.N.J. 1975),

affd mem. 546 F.2d 418 (3rd Cir. 1976); Murphy o. Egan, 498 F.Supp.

240 (E.D. Pa. 1980); Murphy v. State Board of Law Examiners, 429 F.

Supp. 16 (E.D. Pa. 1977); Pappanastos v. Board of Trustees, etc., 615

F.2d 219 (Sth Cir. 1980); Harris v. Louisiana State Supreme Court,

334 F. Supp. 1289 (E.D. La. 1971).

bar examination in Pennsylvania—and such graduates are

in fact barred in many states.

While the petition for certiorari does not address the

issue, Petitioners argued below that the contested Penn-

sylvania rule was unique among the states. Indeed, the

Magistrate’s Opinion noted and refused to give credence to

that argument. (Appendix, at A-71). Petitioners now down-

play the limited application of this bar admission rule in

order to persuade this Court to grant certiorari. The rule,

affects few persons, and is hardly, therefore, an issue so

greatly affecting the public that it merits this Court's

review. Simply stated, the issue and its limited ramifica-

tions are not “important” enough to receive this Court's

review.

d. Pennsylvania Bar Admission Rule 203 does not

violate the Privileges and Immunities Clause of

Article IV of the Constitution.

Pa. B.A.R. 203 (a) (ii) does not have a disproportionate

impact on the practice of law by citizens of the several

states who are not residents of Pennsylvania, since the

Rule raises no barrier to admission to the bar by nonresi-

dent attorneys in order to favor resident attorneys. It

erects no “fences” against out of state lawyers . . . to

protect in-state lawyers from professional competition.

Supreme Court of New Hampshire v. Piper, 470 U.S. 274

(1985), n. 18. Pennsylvania resident attorneys who have

not graduated from an ABA accredited school and who

have not practiced law in a reciprocal jurisdiction, as

required by the rule, are precluded from practicing in

Pennsylvania on the same terms as non-resident attorneys.

2. The Bar Admission Rules of the fifty states are of record below.

It would appear that the following states do not allow any exceptions to

their requirement that only ABA-approved law graduates may sit for

the bar examination: Arizona, Arkansas, Delaware, Florida, Hawaii,

Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Minnesota, Mis-

sissippi, Missouri, Montana, Nebraska, Nevada, New Hampshire,

New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Oregon,

South Dakota, Texas, Utah, and Wisconsin.

8

Moreover, the rule does not prohibit the practice of

law in Pennsylvania by nonresidents. In fact, Pennsylva-

nia’s rule accommodates the present mobility of the na-

tion’s population, leaving untouched the rules of those

states which allow no reciprocal admission. Reciprocity is

the lynchpin of mobility, and Pennsylvania's rule facilitates

relocation by Pennsylvania and out-of-state attorneys.

e. Pennsylvania’s bar admission rule pertaining to

graduates of foreign law schools is irrelevant to

this Court’s inquiry as to whether certiorari should

be granted.

Petitioners’ argument as to graduates of foreign insti-

tutions raises a red herring, diverting attention from the

classification drawn by the contested rule. The comparison

of the rules admitting United States law graduates with a

rule affecting a classification of graduates outside the

purview of ABA accreditation should not be a basis for the

grant of certiorari.

Rule 205, addressing the admission of foreign lawyers,

is intended to apply only to law schools located without the

geographical area encompassed by the accreditation activ-

ities of the A.B.A. As the Pennsylvania Supreme Court

noted in Appeal of Murphy 482 Pa. 43, 393 A.2d 369

(1978), cert. denied and appeal dismissed sub nom. Mur-

phy v. Pennsylvania State Board of Bar Examiners, 440

U.S. 901 (1979) at footnote 3:

Because the ABA did not undertake to evaluate law

schools situated outside of the United States, and

because this Court was receiving applications from

graduates of foreign law schools, our rule was amended

. . . to allow a person to sit for the bar examination if

he or she “shall have acquired a legal education which

in the opinion of the State Board is the equivalent” of

the education received in an ABA approved school.

This provision was not intended to apply to schools

9

located within the geographical area encompassed by

the accreditation activities of the A.B.A.. . . 471 Pa.

Ixxix.

Petitioners have been afforded equal treatment vis a

vis Pennsylvania attorneys who graduated from a nonac-

credited law school, and who have not practiced for the

requisite number of years in a reciprocal jurisdiction.

Indeed, as noted above, the requirement which pre-

vents the instant petitioners from sitting for the bar

examination is not more onerous than that imposed upon

Pennsylvania natives and residents not admitted in other

jurisdictions who, if not graduates of ABA accredited law

schools, may not sit for the bar examination. See Hawkins

v. Moss, supra, finding that, so long as a state does not

subject a migrant attorney to more onerous requirements

than those imposed on its own citizens, it cannot be said°

that the state has violated the Constitution.

2. The Opinion of the Circuit Court is not “at odds”

with the functioning of our Federal Union.

Pennsylvania's rule, rather than preventing comity, as

argued by Petitioners, fosters comity, and the Circuit

Court so found.

Petitioners assert that certiorari should be granted

because the implications of the decision of the Court of

Appeals are “far-reaching.”

Petitioners speculate that the Circuit Court’s logic

could be extended to enable Pennsylvania to “retaliate

against California’s requirement that all lawyers must take

an examination,” by refusing to permit California's doctors

to practice in Pennsylvania without examination, requiring

California to accept Pennsylvania's garbage, demanding

that California provide tax breaks to Pennsylvanians, or

imposing some other condition wholly unrelated to the

practice of law. Petition, pp. 31-32. Such speculation is an

illogical extension of the Circuit Court’s decision. The

Pennsylvania Bar Admission Rules affect lawyers and law-

yer applicants only; nothing in the record—or in reason —

10

would lead to the conclusion that Pennsylvania's Supreme

Court, which promulgated the rule, is waiting to step

outside this circumscribed group of lawyers and lawyer

applicants in an attempt to “coerce” California into a

reciprocal agreement. The rule as written encourages

reciprocity, which is a legitimate state purpose.

Moreover, the rule as promulgated possesses “some

notion of parallelism or mutuality.” The Circuit Court

made clear that precise mutuality is not necessary, and that

finding comports with the caselaw cited in the Circuit

Court’s Opinion.

The Circuit Court found that Petitioners simply

framed Pennsylvania's reciprocity interest too narrowly, in

that “Pennsylvania has a legitimate interest in securing

mutual treatment for all its attorneys seeking admission to

the bars of other states,” whether from accredited or

unaccredited law schools. (Circuit Court Opinion, at A-24).

Thus, despite the whirlwind of Petitioners’ impas-

sioned argument, this Court more properly abides by

principles of comity and federalism by denying certiorari

and refusing to second-guess the Pennsylvania Supreme

Court’s Bar Admission Rule as to graduates of non-

accredited domestic law schools—even if this Honorable

Court might prefer some other scheme. This is especially

so in light of the deference generally accorded states “as to

economic and social matters, and Pennsylvania's “especially

great’ interest in regulating its bar.” Circuit Court Opin-

ion, at A-27, citing Goldfarb v. Virginia State Bar, 421

U.S. 773, 792 (1975).

(a) The Circuit Court properly found the contested

classification constitutional.

Petitioners’ argument that graduates of non-ABA ap-

proved law schools from non-reciprocal states are held

“hostage” by Pennsylvania's rule, does not merit this

Court's grant of certiorari. The Circuit Court’s Opinion

does not suggest that the rule was intended to “harm”

either unaccredited law graduates from Pennsylvania or

unaccredited law graduates from other states; the Circuit

ll

Court simply noted that precise mutuality or ‘mathematical

exactitude’ in drawing classifications, is not required under

the caselaw. Circuit Court Opinion, at A-26, A-27 citing

City of New Orleans v. Dukes, 427 U.S. 297 (1976) (per

curiam).

(b) Pennsylvania’s valid state interest in securing

advantages for its lawyers has been articulated in

accordance with the decisions of this Court.

The policies underlying the bar admission rule “could

conceivably” have been that policy of encouraging reci-

procity which the Circuit Court found sufficient to pass

constitutional muster. Nor is this Court’s decision in

Nordlinger v. Hahn, 505 U.S. _ , 120 L. Ed. 2d 1, (1992)

to the contrary. Nordlinger clearly asserts that, for pur-

poses of rational-basis review, the Equal Protection Clause

does not require that the administrative or legislative body

whose action is reviewed “actually articulate at any time

the purpose or rationale supporting its classification.” Id.,

120 L. Ed. at 16. That case requires that the legitimate

state purpose “may conceivably or ‘may reasonably have

been the purpose and policy’ of the relevant governmental

decision maker,” and that requirement is met here. Id.

Respondents argued consistently and vigorously in

each proceeding below, their right to formulate rules

relating to bar admission, and their legitimate state pur-

pose in securing advantages for Pennsylvania lawyers

through reciprocity.

12

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari to the Court of Appeals for the Third Circuit

should be denied.

December 15, 1992

Respectfully submitted,

A. TAYLOR WILLIAMS, ESQUIRE

(Counsel of Record)

Administrative Office of PA Courts

1515 Market Street, Suite 1414

Philadelphia, PA 19102

(215) 560-6300

Attorney for Respondents,

Robert N.C. Nix, Jr., et al.