Petition for Writ of Certiorari — Cenac v. State Board of Law Examiners (No. 112)

e a Cy ore Y :. | aM AE, Lv

- “UURT. Ug MAY 2:3 1961

JAMES RO BPO WNNG. Ciork

IN THE

SUPHEME COURT UF THE UNITED STATES

OCTOBER TERM 064/

/

No. yl / } if

JAMES JOSEPH CENAC,

Petitioner,

Us,

STATE BOARD OF LAW EXAMINERS OF

ARKANSAS,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF ARKANSAS

TiaitiMan KE. Drxon,

109-10 Glover Blid’q,

Little Rock, Arkansas,

Attorney for Petitioner.

INDEX

Opinions Below

Jurisdiction

(Suestions Presented

Statutes Involved

Statement

Reasons for Granting the Writ

Conclusion

Appendix A. Statutes

B. Constitution of Arkansas

(. Rules of the Supreme Court of Ar-

kansas

D. Photostatic Copy of Docket Entries

’

2 Opinions Below

~

CITATIONS

(Cases:

Adler vs. Board of Regents, 98 Ta ed, 829, S47 U.S.

442, 74 S.Ct. 650

American Communication Association vs. Douds,

399 U.S. 382, 94 L-ed. 925

Bambent Petroleum Co. vs. Superior Court, 284 U.S.

&-22, 76 L ed. 136, 78 A.L.R. 826

Barsky vs. Board of Regents, 98 I. ed. $29, 247

U.S. 442, 74S. Ct. 380, 27 A.L.R. 2d 472

Boyd vs. State of Nebraska, 36 Led. 108

Brown vs. Board of Education, 344U.S. 141, 97 1 ed.

152

Canizio vs. People of the State of New York, 3827 U.S,

2,90 L ed. 545

Cummings vs. Missouri, 4 Wall. 277, 18 Le ed. 356

DeJonge vs. Oregon, 299 U.S. 353, 81 Le ed. 278, 57

§.Ct. 255

Demorest vs. City Bank Farmers Tco., 88 Led. 526,

321 U.S. 36, see page 530 TL ed.

Department of Banking vs. Louis H. Pink, 217 U.S.

264, 87 LL ed. 254, 27 U.S.CLA, 1257

—6971-4

to

-

Ith

il INDEX

Pace

Detroit and Mackinac Railway Co. vs. Michigan Rail-

road Commission, 60 TL, ed. 802 16

Re Parte Garland, 18 Ty ed. 366 14

Ev Parte John L. Tillinghast, 7 Wed. To 14

Georgia Ro and Power Co. vs. Decatur, 262 US, 482,

67 1, ed. 1065 =

Hartman vs. Greenhow, 26 1, ed. 271 16

Haynes vs. Brennan, 135 N.Y.S. 2d 900 14

International Harvester Co. of America vs, State of

Missouri Ea Rel Attorney General, 58 1, ed. 1276 7

Konigqsherg vs. State Bar of California, 3538 US, 252

1 Led. 2d. 810, 77 S.Ct. 722 10, 13, 17

Lana vs. Brennan, (Sup) 124 N.Y.S. 2nd. 136 14

Louisiana Naviqation Co, vs. Oyster Commission of

Louisiana, 266 U.S. 99, 57 T, ed. 138 ?

Madruga vs. Superior Court of California, 346 U.S.

566, 98 I, ed. 290, 74 S.Ct. 298 16

Market Street Raitheay Co. vs. Railroad Commission

of California, 324 U.S. 528, 89 L ed. 1171, 1194,

1195, 1196 PHRMA Me.

Vichigan Central Railroad Co, vs. George V. Mix,

278 US. 492, 73 LL ed. 470 15

Pope vs. Atlantic Coast Line Railroad Co., 345 U.S.

379, 97 Led. 1096, 73 S.Ct. 749 16

ence Army vs. Municipal Court, 331 US. 049, 91

IL, ed. 1667, 1677 1

Re. Usldinger, 35 Cal. 2d. 723 } 14

Re. Zanger, 266 N.Y. 165, 194 N.E. 7 1

Schware vs. Board of Bar ‘aoc of State of

New Merico, 77 S.Ct. 752, 353 U.S. 232, 1 L ed. 2nd.

796, 64 A.L.R. 2nd. 288 *,. £8, 37% 78,230

State of Indiana Ex Rel Dorthey Anderson, Peti-

tioner vs. Harry Brand Trustee of Chester County

Township of Wabash County, Indiana, 305 U.S. 95,

82 L ed. 685 15

State of Missouri Ex Rel St. Louis, Broensv ille and

Mexican Railway Co. vs. W illson A. Taylor, 69

i ed. 947 Tete tee 16

Tomkins vs. State of Missouri, 323 U.S 45, 89 L ed.

Meh ee ee, - oy 16

INDEX

STATUTES

Ark. Stats., 1947, =

Ark, Stats., 1947, =:

Ark. Stats., 1947, =

Ark. Stats., 1947, =

MiIscELLANEOUS

Fourteenth Amendment to the Constitution of

United States 3,

Amendment 28 to the Constitution of Arkansas

Rule 3, Supreme Court of Arkansas

Rule 17, Supreme Court of Arkansas

the

4,9, 14, 20

m F224

24

Ark. Stats. 427-1135 in connection with Rule 17 (a)

Supreme Court of Arkansas

Rules Governing Admission to the Bar

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1960

No.

JAMES JOSEPH CENAGC,

Petitioner,

mary

STATE BOARD OF LAW EXAMINERS OF

ARKANSAS,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF ARKANSAS

Petitioner prays that a writ of certiorari issue to review

the judgment of the Supreme Court of Arkansas, entered

in the above entitled case on Mareh 13, 1961.

Opinions Below

The Per Curiam Order, dated March 13, 1961, denying

the motion for default) judgement (RR. 26) is unreported.

- The Per Curiam Opinion entered after the record for cer-

tiorari to this Court had been ordered, and dated) March

27, 1961 is unreported (R. 27). Both the Per Curiam

Order and the Per Curiam Opinion are in the record and

printed in Appendix K..

(1)

2

Jurisdiction

The judgment of the Supreme Court of Arkansas was

entered Mareh 13, 1961, and after the record for petition

for writ of certiorari had been ordered an opinion was

written on March 27, 1961 (R. 27). The jurisdiction of this

Court is invoked under 28 U.S.C.A. 1257 (3) Also see Mar-

ket Street Railway Co. v. Railroad Commission of Calif.,

324 U.S. 548, 89 L ed. 1171; Louisiana Nav. Co. v. Oyster

Commission, 226 U.S. 99, 57 Le ed. 188; Department of

Banking v. Pink, S17 US. 164, 87 Led. 234; Georgia R. &

Power Company v. Decatur, 262 U.S. 482, 67 L ed. 1065:

all holding that the testis not whether under local rules

of practice the judgment be denominated final, but whether

such adjudication by the State court is an effective de-

termination of litigation. This Court has jurisdiction

where the highest court of the state had original juris-

diction and there is no other State court in which to review

the matter. The Federal Question was raised in the first

instanee in the Petition To Admit To Practice Of Law,

filed in the Supreme Court of Arkansas, as an original action

(Kk. 3), alleging amony other things that petitioner had

heen denied the right to practice law in violation of the

Due Process Clause and Equal Protection Clause of the

Fourteenth Amendment to the Consti‘ution of the United

States, (R. 5) in that he had not been given credit for

grades he actually earned in taking the Bar examination

and in that the Chairman of the Board of Law Examiners

had considered the petitioner to be a member of the Com-

munist party and not to be of good moral character, which

was and is denied as being absolutely untrue.

That the actions oi the Supreme Court of Arkansas in

deciding the case before the same had been officially dock-

eted, (Rt. 29) and in refusing to make an order after an

unofficial investigation, at which no opportunity was given

. 3

to put on any testimony Whatsoever constituted a violation

of petitioners rights under the Fourteenth Amendment to

the Constitution of the United States.

The actions of the Supreme Court. of Arkansas, after

the case had been officially docketed at said court's request,

denying the petitioners motion for default judement, and

entering a nune pro tune order permitting the respondents

to answer after the petition for default judgment lad been

filed, constituted a denial of petitioners rights under the

Fourteenth Amendment to the Constitution of the United

“Sfates; and the actions of the Supreme Conrt of Arkansas

in writing a Per Curiam Opinion after the record jiad

been ordered for certiorari to this court constituted a denial

of petitioners rights under the Fourteenth Amendment to

the Constitution of the United States. The whole pattern

being to deny petitioner the right to practice law, in viola-

tion of the Due Process Clause and Mqual Protection -

Clause of the Fourteenth Amendment to the Constitution

of the United States, regardless of any steps taken by him

to become licensed.

This being a question and matter never having been

passed upon under the present laws of Arkansas and in

the history of Arkansas, presents a question of first im-

pression and it is of utmost importance that this question

should be resolved once and for all, the Supreme Court of

Arkansas being the trial court under the apparent, but

unknown heretofore, procedure.

Questions Presented

Did the State Board of Law Examiners deny petitioners

right to practice law in viol: ation of the Due Process ¢ ‘lause

and Equal Protection Clause of the Fourteenth Amend-

ment to the Constitution of the United States?

Did the Supreme Court of Arkansas commit error in

{

4

deciding the question of petitioners right to practice before

the case was docketed officially, and did the actions of the

Supreme Court of Arkansas violate the petitioners rights

under the Due Process of Law and Equal Protection of the

Laws Clauses of the Fourteenth Amendment to the Con-

stitution of the United States in refusing to grant the motion

for default judgment and entering a nune pro tune order

after the motion for default judgment had been filed, and

the time had lapsed for the filing of same, permitting re-

spondents to answer; and in writing an opinion to same

after the order denying the motion for default judgment

had been entered and after the record had been ordered

for certiorari to this court; and did these actions con-

stitute a pattern depriving petitioner of his rights in viola-

tion of the Due Process and Equal Protection of the Laws

Clauses under the Fourteenth Amendment to the Constitu-

tion of the United States?

Statutes Involved

The pertinent statutory provisions and the pertinent

provision of the Constitution of Arkansas and the Rules

of the Supreme Court of Arkansas are printed in the ap-

pendices A, B, C, infra pp. 21, 23, 24.

Statement of Case

The appellant, in this case, graduated from the Arkausas

State Teachers College in 1954 with a Bachelor of Science

Degree, and from Arkansas Law Sehool in 1957, with a

Bachelor of Laws Degree. His scholastic average was good.

He has taken the Bar Examination seven times, beginning

July 1957 and ending July 1960. For some reason he has

not been recommended for a license to practice law.

The writer of this brief is fully certain that the appellant

is fully qualified, both scholastically and morally, to be ad-

d

mitted to the Bar, having known him for a number of vears.

The writer of this brief has extensively coached the Ay

pellant within the past two or more vears, and during that

tine the Appellant has taken the Bar examination four

times,

With the above facts in mind the Attorney for Appellant

filed on December 5, 1960 with the clerk of the Supreme

Court of Arkansas Appellant's Perition ro Be Apsierrep te

Practice Law, a true copy of same was secved on John He.

Haley, Chairman of the State Board of Law Examiners, in

person at his regularly constituted office.

Appellant in substance alleged in his petition, after a

statement of his educational qualifications, that he had met

received the grades that he actually earned, due to the fact

that the Chairman of the Board of Law Examiners thouelt

that the Appellant was a member of the Conununist party,

and of poor moral character due to past arrests, which was

duly dented by the Appellant as being untrue. Appellant

further alleged that the Secretary of said Board also ae

cused him of the same as stated above, and such aceusation-

are absolutely untrue.

Appellant further alleged in his petition that the actions

of the Chairman and Secretary of the Board of Law Ey-

aminers constituted a denial of his rights in violation of the

Fourteenth Amendment to the Constitution of the United

States as being a denial of his right to practice law with:

out ‘*Due Process of Law’? and without ‘*Rquai Pro

tection of the Laws’? and he had been deprived without the

right to defend himself to the contrary. And that one ean

not be deprived of the right. to practice law, or any other

occupation in a manner or for reasons contravening th:

Due Process and Equal Protection clauses of the Four.

teenth Amendment to the Constitution of the United States,

citing numerous cases in his petition.

6

Appellant attached to his petition sixteen exhibits as to

hix good moral character, which were none other than copies

of letters from Businessmen, Attorneys, and Judges recom-

mending him to be eranted a License to practice law.

Appellant praved in his petition that the respondents be

reauired to show cause why he should not be admitted to

practice law, and upon their failure to do so, that he be

eranted a License to practice law.

At the time of the filing of the said petition, the Clerk

of the Supreme Court of Arkansas stated to the writer of

this brief that the matter should be kept quiet until he

consulted with the members of the Court, that there should

he no publicity and that if and when a filing fee was neces-

sary that he would notify the writer of this brief. On or

about Decetuber 14, 1960 the writer of this brief, without any

other notice, was requested to appear within thirty minutes,

before a committee of three Judges of the Supreme Court.

Upon arriving before the committee of which only two were

present, the writer of this brief found the Chairman and

Secretary of the State Board of Law Examiners to be

present. The hearing was merely a round table discussion

of the merits of the petition, no opportunity for testimeny

to be taken, and it was understood that it was only pre-

liminary off the record discussion and investigation. The

appellant's constitutional rights were violated in that he

Was not given a chance to attend, and did not receive notice

before the hearing took place.

On January 10, the writer of this brief received a letter

from the Clerk of the Supreme Court, stating that the court

had denied the petition. All this without any testimony

being taken. The writer of this brief contacted the Clerk

for a formal order, and was informed by letter on Jan-

uary 20, 1961, that if he wanted a formal order of the court

that he would have to pay $11.50 docketing fee, and that the

7

same would fall under rule 17 of the Court as regard issues

of fact. This was the first time that the clerk wenld even

accept the docketing fee.

The petition was finally formally docketed February 1,

1961. On the same date the Clerk of the Supreme Court of

Arkansas telephoned the writer of this brief stating that

the case was formally decketed and that John H. Haley,

Chairman of the Board of Law Examiners, had heen noti-

fied of same and that no further notice was necessary, since

he had already been served a copy of the pleadings, and

that he had personally notified him of the docketing of the

ease, Tmimediately, the writer of this brief phoned John

IH. Haley, Chairman of the Board of Law Examiners, who

stated to linn that he would within the next few days file

an answer. All this after having been served on Devem-

ber 5, 1960.

After waiting the proper time permitted by Law, as-

suming without waiving ‘that respondent's time for answer

had long since expired, on February 24, 1961, after care-

fully checking the Court Docket and finding that mo re-

sponse of any kind had been filed by the respondent, Ap-

pellant filed his Morton ror JepemMent py Deeavir, alleging

that the petition had been filed on December 5, 1960, duly

served on John H. Haley, Chairman of the State Board of

Law Examiners. After an informal investigation of a com-

mittee of the court, the case was docketed reciting notice of

same, and stating that no defense of any kind had been made

or filed, and that the allegations should stand as confessed

and that judgment by default should be eranted.

On February 27, 1961 respondents answer and response

to motion of petition was filed by Jolin Hf. Haley, Chair-

man, alleging in the response to motion for default jude-

ment that he was to file a response prior to hearing, and that

it way not possible to gain admission to the Bar of Arkan-

8

sas by default, as no summons was issued (even in the face

of actual notice of all proceedings).

In answer to the petition, in substance respondents al-

leved that petitioner had no right to review the action of

the Board prior to July 1960, that under the system the

identity of the appheant is not known by the Board, that

petitioner had been unsuccessful on any Bar examination ;

that neither the Board’s Secretary nor the Board's Chair-

man had any knowledge of any communist affiliation nor

trafie offenses, moral character havine not been considered.

Without further ado, the Supreme Court of Arkansas on

March 13, 1961 by Per Curiam Order, without opinion

denied Appellant’s motion for default judgment. On March

15, the writer of this brief requested by letter addressed to

tne Clerk of the Supreme Court of Arkansas the exact cost

of a record to the Supreme Court of the United States.

On March 24, 1961 by letter, the complete transeript for the

purpose of Certiorari to this Court was ordered. Three

days later, a Per Curiam opinion was rendered by the

Supreme Court of Arkansas on March 2771961, wherein it is

stated that no summons was issued but that John H. Haley

Chairman was notified personally by the clerk of the -filing

of the petition on February 17, 1961 and the clerk granted

ten days extra to file a response, thereafter on February

24, 1961 a motion for default was filed, and on February

27, 1961 an auswer to the motion for default was filed, on

Mareh 6, 1961 an order overruling motion for default

entered, hereafter procedure was to be under rule 17 (¢) of

the Supreme Court. In substance the Supreme Court of

Arkansas reiterated their original findings of January

10, 1961 whieh was made without opportunity for any de-

fense whatsoever, and after the record had been ordered

for a Writ of Certiorari to this Court.

The crux of the whole matter is that Appellant has been

9

discriminated against, not only by the State Board of Law

Examiners; but, by the members of the Supreme Court of

Arkansas itself. The contention being that under Amend-

ment 28, of the Arkansas Constitution, the Supreme Court

of Arkansas has full power to make any and all rules reg-

ulations as to the practice of law.

The Supreme Court of Arkansas appoints all members

of the State Board of Law Examiners, and tells them what

subjects the applicants shall be graded upon, and the State

Board of Law Examiners is an arm of and part of the

Supreme Court of Arkansas, This being the case, the only

procedure to follow, which is unknown in the State of Ar-

kansas before this date, is to present your petition for ad-

mission to the Supreme Court itself, there being no written

rules known to any member of the Bar to do otherwise, and

for this reason the Appellant adopted the procedure in this

case Which is a new procedure in Arkansas. The above

facts beinye true the writer of this brief has attempted to

find some procedure at law, which appears to be a case of

first impression in Arkansas, to follow. Being a case of

first impression TP trust this Court will bear with the writer

of this brief in his contention. |

The Reasons for Granting the Writ

In the case at Bar petitioner had graduated from Ar-

kansas State Teachers College with a Bachelor of Science

Degree, subsequently thereto he had graduated from Ar-

kansas Law School with a Bachelor of Laws Degree, and has

a7 percent average in his law study there, thereby meeting

any and all educational requirements necessary,

Under the original rules if he had graduated from High

School and passed the Bar he would have been eligible for

a license; subsequently there to, the rules have been

changed which required him to be a graduate from the

10

University of Arkansas Law School, and then he would have

been licensed without examination; or if he had a four

year College degree and was a graduate of Arkansas Law

School, he would have been automatically admitted without

examination, and in these cases such Law School Diploma

was prima facie evidence of the holders qualifications and

fitness; subsequently the rules have been changed requir-

ing pre-law work, plus a law degree, plus examination, and

then a license after that.

The petitioner began his education while the old rules

were in force, but before he completed his education he was

caught within the latest rules.

Under the Statutes (If he had submitted his application

within that time he would have been licensed without ex-

amination) but since the rules have been changed he had to

take the examination, which he has done seven times, and a

License has been denied due to the allegation of a suspicion

of former communist tendencies which we deny as being

true, the petitioner being a Roman Catholic which is con-

trary to all communist teachings. The petitioner having

been accused of not having a good moral character, which

has been fully denied; the petitioner was denied the right

to practice law, without an opportunity to put on any evi-

dence. In the case of Konigsberg vs. State Bar of Cali-

fornia and Committee of Bar Examiners of the State of

California, 1 L ed. 2nd. 810, it was held by this Court that:

‘*Constitutional Law + 408, 697—right to practice law

—inoral character. 3. A state’s denial of a person’s

right to practice law on the ground that he failed to

prove his good moral character and his loyalty to the

United States is both arbitrary and discriminatory, and

hence a denial of due process and equal protection of

the laws, where there is no evidence in the record which

¢

11

rationally supports a finding of doubt about his charae-

ter or loyalty.’

The record in this case showing, a constituted pattern to de-

prive him of his rights without a hearing to be eranted

nu license to practice law.

The record showing that he filed his petition for admis:

sion to practice on December 5, 1960 and was not allowed

to pay a filing fee at that time, vet he was given an opinion

denying him, the right to practice law, before the case had

been formally docketed. Then after his counsel requested

a formal order of the denial of the petition, the case was

docketed, then followed the motion for default) judement,

after the time had expired, an answer was filed, and after

that a nune pro tune order Was issued extending the time

for filing an answer, which was done without knowledge

or consent of counsel for petitioner, Subsequently thereto

the record for certiorari to this court was ordered, and two

weeks later an opinion was rendered by the Supreme Court

of Arkansas, apparently, designed to prevent a hearing

before this Court. In the ease of Schicare vy. Board of Bar

Examiners of the State of New Mexico, 303 U.S, 232, 11

ed. 2d 796, 77 S.Ct. 752 the Court held:

‘Constitutional Law, 2324, 408, 636, 697—right to

choose occupation—practice of law—1. A State cannot

exclude a person from the practice of law or from any

other occupation in a manner or for reasons that con-

travene the due process or equal protection clauses

of the Fourteenth Amendment.’’

To the writer of this brief it appears to be a well consti-

tuted plan to prevent the petitioner from obtaining a license

to practice law, in that petitioner had met all requirements

and in the answer, filed after the time permitted by law,

12

of respondents herein it was stated that he should not be

allowed to look at his examination papers behind July

1960. This is an admission more or less that au eramina-

tion paper before that date might reflect that he had made

a sufficient grade to pass the examination, This Court held

in the case of Schware vy. Board of Bar Examiners of the

State of New Mexico, supra,

‘Constitutional Law #697—due process right) to

practice law. 14. The due process clause of the Four-

teenth Amendment is violated by a state's denying

an applicant the opportunity to qualify for the prae-

tice of law on the ground that he has not shown eood

moral character, where such a finding cannot reason-

ubly be made on the record.”’

This whole matter appears a denial of Due Process since

under Amendment 28 to the Constitution of Arkansas, the

Supreme Court of Arkansas is charged with responsibility,

to determine who shall or shall not be engaged in the prac:

tice of law. Which apparently superseded ail statutes to

the contrary. This being the case the State Board of Law

Examiners being appointed by the Supreme Court) of

Arkansas is an arm of said court. This being the case

the only proper procedure was to file a petition for ad

mission to practice law within the Supreme Court: itself,

So, the respondents being part of the Supreme Court. of

Arkansas, the rules for motions in that court would govern.

The rules preseribed are similar to the rules of this Court,

in that notice must be had upon the opposing counsel, which

was had. The record shows that the opposing counsel had

full knowledge of this matter and that he appeared in

December 1960 for an informal hearing before the Supreme

Court of Arkansas. There is no question that the respond:

euts had full knowledge and notice of this proceedings and

13

that respondents deliberately delayed in every step of the

Way In responding to the petition filed herein.

Eexelusion from the Bar because of arrests in the past,

Without prosecution, trial, or arraignment, violates Due

Process of Law. This Court has said in an opinion where

there was shown a violation of a Constitutional right,

quoting Nchoware ve Board of Bar Braminers of the State

of New Merten, supra:

Evidence 2961 -sufficiency.-misconduct arrest. 7,

The mere fact that aman has been arrested has very

httle if any, probative value in showing that he has

engaged in-cany isisconduct, and whatever probative

force the arrest may have is normally dissipated when

formal charges are not filed against the arrested person

and he is released without trial’

The law is well settled that one cannot be denied the

Hight to practice law or any oceupation ina manner or

Yor reasons contravening the Dine Process Clause and.

qual Protection Clauses of the Fourteenth Smendment

to the Constitution, In the ease at Bar the whole seheme

and plan has been te deny the petitioner the right te prac

tice law, particulirly so where the matter was decided fully

Without testimony and without opportunity to defend him

self, before the case had been formally docketed, then after

the action of the lower court, being. as a follow Tee

Hit out oon every possthilitv. Under the eireumstanees it

would be a vain thing to proceed further to take festinrans

When, unmistakably the lower court has reached a decision

Without testimony being taken. One cannot frivelon-iy

deny the right to practice law due to personalities invelved,

and we eite Schware ve Board of Bar Evaminers of the

State of New Merteo, 243 US. 282, 1 Le ed. 2nd ToG, 77

S.Ct. Gol, 64 ALLR. 2nd 288. Kontqshberd vo State Bar of

14

California, 353 U.S: 252, 77 S.Ct. 722: 1 L ed. 2nd 810;

Ex Parte Garland, 18 L ed. 366; Cummings v. Missouri,

4 Wall. 277, 18 L ed. 356; DeJonge v. Oregon, 299 U.S.

353, 81 L ed. 278, 57 S.Ct. 255; American Communications

Association v. Douds, 399 U.S. 382, 94 L ed. 925; Barsky

v. Board of Regents, 98 L ed. 829, 247 U.S. 442, 74 S.Ct.

380, 27 A.L.R. 2d. 472, Ex Parte John L. Tillinghast, 7

L ed. 798; Re. Ross, 8 Cal. 2d 608, 67 Pac, 2d 84, 110 A.L.R.

217; Re. Useldinger, 35 Cal. 2d 728; Haynes v. Brennan,

135 N.Y.S. 2d 900; Re. Zanger, 266 N.Y. 156, 194 N.E. 72;

Lana v. Brennan, 124 N.Y.S. 2nd 136 and cited cases.

Having covered the question of the rights of the peti-

tioner under the Fourteenth Amendment to the Constitu-

tion, under the above cited cases, we now come to the

question of default judgment, the law of Arkansas on

default judgments is as follows:

‘* Judgment by default shall be rendered by the Court

in any case where an appearance or pleading, either

general or special, has not been filed within the time

allowed by this Act; provided, that the Court may for

good cause allow further time for filing an appearance

or pleading, if application for qranting further time

is made before expiration of the period, within which

the appearance or pleading should have been filed;

and that nothing in this Act shall impair the diseretion

of the Court to set aside any default Judgement upon

showing of excusable neglect, unavoidable casualty or

other just cause.”’ (Act 53, of 1957)

<

Petitioner is faced with a situation where, at the time

he ordered the record to this court there was a final jude-

ment, and for the purpose of this case where he had been

shut out by a final judgment denying his petition after an

order before the case had been formally docketed and after

15

his petition for admission had been denied; the record had

been ordered and subsequently thereto two weeks later an

opinion Was written, apparently to cut petitioner out eom-

pletely, Yet on the other hand, petitioner had already

applied to this Court by ordering a reeord before any such

apinton was rendered, and in view of this it was a final

Judgment from which petitioner is seeking review, the test

not being whether or not under local rules the judgement

is denominated final; but, rather where the reeord shows

that the State Court has in fact fully adjudieated the rights

of petitioner and that such adjudication is not subject to

further review, Department of Banking v. Louis H. Pink,

Ole US. 264, 87 L ed. 254, 27 ULS.CLAL 1257, also see as to

decisions reviewable stating that the judgement is not de-

ferminative as to whether a state court judgment is final

“as to be appealed to the Supreme Court; but the test

as to whether the record shows that the order of the court

has in fact fully adjudicated rights and that that adjudi-

cation is not subject to review in a state court, Gospel Army

v. City of Los Angeles, 331 U.S. 543, 91 L ed. 1662; Rescue

rma ve Manicrpal Court, 831 U.S. 549, 91 L ed. 1667, 1677,

Where in this Court made an inquiry regardless of the

state procedure, and determined the federal question.

A+ to whether or not a state court can predetermine liti-

cant. rights under the Federal Constitution see State of

Indiana Ev Rel Dorthey Anderson, Petitioner vs. Marry

boand, Trustee of Chester County Township of Wabash

County, Indiana, 305. US. 95, &2 To ed 685.

A judgment of the highest court of a State denying a

writ of prohibition to prevent a trial court from entertain-

Ing a cause for lack of jurisdiction is final and appealable,

Michigan Central Railroad Co. vs. George Vi. Mix, 278 US.

$02, 05 Teed. 470. The denial of a writ of prohibition so as

to be subject to review by the Supreme Court of the United

States, although the original controversy is not determined,

= 16

State of Missouri Ex Rel St. Louis, Brownsville, and Mexico

Railway Co. vs. Willson A. Taylor, 69 L ed. 247;

Under the circumstances of the case involved there is no

question but that the judgment is final and subject to review

by this Court, see Mandamus, Detroit and Mackinac Rail-

way Co. vs. Michigan Railroad Commission, 60 L ed. 802,

Louisiana Navigation Co. vs. Oyster Commission of Lou-

tsiana, 57 L ed. 138, holding in effect that a judgment is final

for review irrespective of how far it may be that the state

law concluding such questions, were concluded during the

litigation before a final judgment of a state court was ren-

dered; also see Hartman vs. Greenhow, 26 1. ed. 271; Pope

vs. Atlantic Coast Line Railroad Co., 345 U.S. 379, 97 L ed.

1094, 73 S.Ct. 749; see annotation 97 [L ed. 208, citing numer-

ous eases as to finality of judgment. In substance which

it has been held that the test is no longer that the judement

is denominated as final but as to the substanee of the decision

the subject matter may be final, in the way it is treated

by the trial court. Also see Brown vs. Board of Lduca-

tion of Topeka, 344 U.S. 141, 97 Teed. 192. also see VMadraqa

vs. Supertor Court of California, 346 U.S, 566, 98 Led. 299,

74 S.Ct. 298; Canizo vs. Pe ople of the State of New York,

327 U.S. 82, 90 L ed. 545, consideriny the faets that the

court’s decision could not be appealed to a higher court of

the state, this court took Jurisdiction, then see opinion L ed.

547, 548: Tomkins vs.v State of Missouri, 323° U.S.

45, 89 L ed. 407; As to the essential elements of a State

Court being final for review to this court see Market Street

Railway Co. vs. Railroad Commission of California, 324

U.S. 528, 89 L ed. 1171, see annotation of said case second

heading page 1187 of the L ed., under mandamus and pro-

hibition being final for consideration in this Court, see the

last cited case pages 1194, 1195, 1196 of the TL. ed. citing

numerous cases in favor of petitioner.

Where the State Court has denied rights asserted, under

17

local law the protection which the Constitution guarantees

is a question on which the petitioner is entitled to invoke

the judgment of this Court even though the Constitutional

protection invoked be denied on no federal growtds, it is

the provinee of this court to inquire whether the decision

‘of the state court rest upon a fair and substantial basis,

Demorest vs. City Bank Farmers Teco, 88 1, ed. 526, 3821 U.S.

36, see page 530 in the opinion TL. ed. Boyd vs. State of

Nebraska, 36 I, ed. 103; International Harvester Co. of

America vs. State of Missouri Ex Rel Attorney General,

o8 L ed. 1276, one of the leading cases on finality of jJudg-

ments is Bambent Petroleum Co. vs. Superior Court, 284

U.S. 8-22, 76 L ed. 156, 78 A.L.R. 826.

In the cise of Honigsberg vs. State Bar of California

and Committee of Bar Examiners of the State of Cali-

fornia, supra the Court held:

‘Appeal and EFrror 2745—review by Supreme Court

of state court decisions—question of fact. 4. In review-

ing a state court decision whieh is challenged as violat-

ine federal constitutional rights, the United States

Supreme Court is justified in searching the record to

determine whether the erueial finding has a reasonable

basis in the evidence.”’

Calling the Court's attention to the record of the case

we are attaching a certified photostatic copy of the docket

entries in full for the sag to consider on its face value,

see appendix D. It shows 2-17-61 ten days abd in time to

file ans. (nune pro tunc order) this is merely a docket entry,

there is no order showing when the nune pro tune was

granted, it merely shows that some time a mune pro tune was

entered in the docket entry running back to 2-17-61, the

rest of the record shows that a motion for default judgment

was filed and served on 2-24-61, an answer to petition and

response to the motion for default judgment, was filed

18

|

2-27-61 and served (service was not actually had) then the

case was submitted on 3-6-61 and denied on 3-13-61, then

on 3-27-61, a per curiam opinion was rendered.

We state unequivocably that at the time of filing of the

motion for a default judgment on 2-24-61 that no notation

was entered on the docket for an extension of time being

granted; and if that same notation had been shown at the

time that the motion for default judgment had been filed we

would not have filed it, because counsel for petitioner was

very careful in this in all respects.

We know that the record of this matter is incomplete but

we submit to the court that an opinion had been rendered

against petitioner before this case was formally docketed

and that if this and the accusations does not show a denial

of Due Process of Law, because of the matter being pre-

determined, then we are at a loss and we are strictly at the

mercy of this Court to see that Justice shall be done.

Petitioner in this case had on several occasions gone

before the old and new Chairman of the State Board of Law

examiners claiming that he should have passed the Bar,

and have been recommended for a license, and in all in-

stances he was told that revardless of the grades made he

would not be recommended for a license. The Secretary

of the Board of Law Examiners had been consulted many

times by the petitioner, and petitioner’s character was

placed in question, and was accused of communist affilia-

tions, all of which petitioner has fully denied, and upon

referral to the former Chairman, the petitioner was told that

he was bound by the decisions of the Secretary. As far

back as July 15, 1957, and again on April 15, 1958 (we know

we are going outside the record, but we know this would

have been developed if the opportunity had developed) the

former Chairman had seriously questioned the petitioners

moral character, and so had the Secretary of the Board of

Law Examiners, the Secretary being violently opposed to

19

petitioner being recommended for a license to practice law.

The present Chairman stated he also followed the de-

cisions of the Secretary, in this manner. This in the face

of the Chairman's response where he denied any knowl.

edge of communist affiliations, and denied any knowledye

of a bad moral character; but unequivocally stated in dias

response that petitioner should not go behind the last bar

examination taken by him in July 1960, ALD of this deniai

in the face of the statement that he should not be allewed

to consider his past grades on his past examination. Off

the record we have been told that the past examination

papers have been destroyed, the truth of this assertion,

we do not have any knowledge of. We knew that we have

discussed matters outside of the record and the only reason

we have is because we have been deprived of an opportunity

to do any better. We beg the Court's indulgence and hope

that the Court will bear with us, because this ts such an un-

usual and unprecedented situation, and we know of no other

place to seek Justice but to this Court. |

The whole situation of the case at Bar appears to be

one that the petitioner is being prevented from practicing

law without valid and sufficient reasons and we quote;

“Attorneys 23, 5—right to practice law. 2. [rrespective

of whether the practice of law is a ‘tright** or **priv-

ileve*’ a person cannot be prevented from practicing

law except for valid reasons, such practice not being

a matter of state’s grace."’

‘* Attorneys & 3—admission to practice—-qualifications.

3. While a state can require high standards of qualiti-

cation, such as good moral character or proficiency in

its law, before it admits an applicant to the bar, any

qualification must have a rational connection with the

applicant's fitness or capacity to practice law; an ap-

plicant cannot be excluded merely because he is a Re-

20

publican, or a Negro, or a member of a particular

church.

Attorneys & 3—admission to practice---standards. 4.

Even in applying permissible standards, offieers of a

state cannot exclude a person from the practice of law

when there is no basis for their finding that he failed

to meet the standards, or where their action is in-

vidiously discriminatory.’”’

See Schware vs. Board of Bar Examiners of the State of

New Meyico, supra.

In view of all the facts and law stated the petitioner feels

that he has been diseriminated against and we are at a loss

to arrive at any other conclusion.

Conclusion

For the foregoing reasons the petition for writ of cer

tiorart should be granted and the lower Court be reversed,

and in the alternative that petitioner's rights should he

spelled out according to law and according to his rights

under the Fourteenth Amendment to the Constitution of —

the United States.

Respectfully Submitted,

TiumMan KE. Drxox,

109-10 Glover Blidq.,

Little Rock, Arkansas,

Attorney for Petitioner.

21

APPENDIX A

Ark. Stats. 25-101, QuanirICaTIONS FOR ADMIssion.«— livery

citizen of the awe of twenty-one years, of good moral char-

acter, and who possesses the requisite qualification of learn-

ing and ability, may, upon application, and in the manner

hereinafter provided, be admitted to practice as an attor-

ney and counselor at law in the courts of this State Pro-

vided, It shall be lawful for the Supreme Court to admit to

practice as an attorney and counselor at law in the courts of

this State, any citizen under the age of twenty-one vears

who is of good moral character and who possesses the other

requisite qualifications of learning and ability, and who is a

craduate of any aceredited, recognized or Class A) Law

School, (Civil Code, 2760; Act Apr. 24, ISt5, No. ss

(22760 (1st clause of Ist sentence), p. 218; 1917, Now obey

1, p. 1787; C. & M. Dig, 2596; Acts 1927, No. 19. 1.

». O68; Pope's Die, 26055.

Arkansas Stats. 25-102. Attuornmy or Jepgk to Lickxse.

No judge of the Supreme, cireuit or other court shall have

power to Heense any applicant to practice Taw, but such

power shall be exercised by the courts of the State, by

proper orders, duly recorded, (Civil Code 760, Net.

Apr. 24, 1875, No. 88 31 (760 (2nd clause of Ist. sentence)

» 21: CL & M. The, 20%: Pope's Dig. 654.

Ark. Stats. 25-108. Examixation--Prrrrion to Tanke Av

wissiox Uposx Grapcatrion-—-Oatie -Estireep to Pracrick

is Aun Courts Urox Apission.—Every applicant for ad-

Mission to practice law in the courts of this State shall be

examined pursuant to rules of the Supreme Court of this

State and shall before lis or hee admission, produce to the

court, by sworn petition, saiisfactory proof of the fore-

eoing quolifications, Provided, however, that all students

who complete the full legal course required ine the Liaw

School of the Department of the University of Arkansas

and receive a certificate or diploma from the constituted

authorities thereof showing the graduation from such Law

School, shall not be required to take an examination to

the Bar, and to authorize such graduate to practice Inaw in

))

the courts of this State, upon motion made to and order

entered by the Supreme Court.

All persons admitted to practice law in this State shall

make oath to support the Constitution of the United States

and of the State of Arkansas, and faithfully to discharge

the duties of the office upon which he is about to enter;

and no person shall be licensed or permitted to practice

law in any of the courts of record of this State until he

has been admitted to practice by the Supreme Court of

this State, and every person so admitted shall be entitled

to practice in all the courts of this State, provided, that

the provisions of this act (#25-101-25-103) shall not apply

to anyone to whom a license has already been issued to

practice law in any court of record in the State of Ar-

kansas. (Civil Code #760; Act Apr. 24, 1873, No. 88

(#760 (2nd sentence), p. 213; 1917, No. 361, #1, p. 1786;

(*. & M. Dig., #598; Acts 1929, No. 32, #1, p. 33; Pope’s

Dig., #638.

Ark. Stats. 25-104. AproinTMENT oF Examininc Boarp.—

The Supreme Court may appoint a board of exammers, of

practitioners in the Supreme Court for each judicial eir-

cuit to conduct examination for license, according to a

standard adopted by the Supreme Court. (Acts 1917, No.

361, #2, p. 1786; C. & M. Dig., #599; Pope’s Dig., +639.)

*)°

~t

APPENDIX B

Amendment 28, to the Constitution of Arkansas, Regulat-

ine Practice of Law.

“Supreme Court—Rule Making Power. -The Supreme

Court shall make rules regulating the practice of law and

the professional conduct of attorneys at law.”

APPENDIX C

RuLFs OF THE SUPREME CourT OF ARKANSAS

Ru.LeE 3

Motions Must Be WrittEN

‘*(a) All motions must be in writing, and such as are

not merely incidental and non-controversial shall be sup-

ported by affidavit, unless the facts are of record.

(b) Eight clearly legible copies must be filed.

(c) Evidence of service of motions on opposing counsel

must be furnished at time of filing.

(d) Within ten days after the service of a motion a re-

sponse thereto may be filed, with evidence of service on

opposing counsel."’

Rue 17

OricgINaL ACTIONS

‘“(a) ProcEpurE is Courts or EKauity to Goverx.—In

cases in which the jurisdiction of this court is in fact origi-

nal, such as suits attacking the validity of state-wide peti-

tions filéd under Constitutional Amendment No. 7, the pro-

cedure in this court will conform to that prevailing in the

chaneery courts. Summons or other process will be issued

by the clerk of this court, the respondent's pleading to be

tiled within the time allowed in chancery cases.

(b) Issues or Law Onty [svonvep.—- When the issues in-

volve questions of law only, the parties shall file printed

abstracts and briefs as in other eases, their time under

Rule 7 to be calculated from the date on which the issues

are joined.

(¢) Issues or Fact.—Evidenee upon issues of fact will

be taken by a master to be appointed by this court. As a

condition to the appointment of a master the court shall

require both parties to file a bond, to be approved by the

clerk, to secure the payment of all costs adjudged against

them incurred in taking and transcribing the proof, inelud-

ing the fee of the master. Tn lieu of the bond above men-

tioned, the parties, the intervenors, or other interested

iS et

ow?

persons shall have the option of furnishing a bond exe-

cuted by the real parties in interest.

Since Rule 17 (a) refers to the Statute on pleadings we

quote.

‘Ark. Stats. of 1947, No. 27-1195. Time ror APrEakaNce or

Pheapinc To Compiaisr or Cross Compiarst.—A defend-

ant to any complaint or cross-complaint must appear or

plead either generally or specially the first day after ex-

piration of che periods of time set forth below, as the case

may be:

« First. Where the summons has been served twenty (20)

days in any county in the state:

Second. Where the summons has been served thirty (50)

days outside the state;

Third. In the ease of constructive service where publi-

cation of the warning order lias been made as required

by jaw, and thirty (20) days has elapsed since the making

of the order and the appointment of the Attorney ad

litem. (Civil Code, 2126: Act Mar. 27, S71. No. 48, 1,

#9 p. 109; 1947, No, 93, 1, p. 1%.)

Rupes Goverxixe ANeatission ro tHe Bar

“The State Board of Law Examiners is hereby consti-

tuted, before whom all applicants for leense must appear,

The rule eoverning composition of the Board of Law

Examiners was amended olan, 1. 1960, te provide that

the Board will consist of ten members, whe shall serve

fora term of three vears. Appointment will be made ly

the Supreme Conrt to fill vacancies. Vacancies occurring

from causes other than expiration of term of office will he

filled as they ocenr, and the person so appointed shall serve

the remainder of the term of lis predecessor,

The Board, from its members shall select its own chair-

man. A non-member seeretary, who shall reside in Little

Rock, shall also be selected."

26

Time aNd Prack or Examination

‘*The Board shall meet semi-annually on the first Mon-

day in March and the third Monday in July of each vear,

at the State Capitol in Little Rock, for the purpose of

examining applicants. Provided, the Board may meet at

such other times as it may designate, for the purpose of

considering applicants under the reciprocity rule, or from

members of the bar of this state admitted to practice in

the Cireuit and Chancery Courts prior to July 1, 1917.

Duties oF THE Bown

‘*The Board shall provide questions to be nsed on exami-

nations, and shall furnish to each applicant a set of such

questions, on the day of examination.

The Board shall grade the examination papers and as a

Board ascertain the average of each applicant.

Applicants shall be actual bona fide residents of Arkansas

for at least six consecutive months immediately preeeding

their application, and intend to engage in the active practice

of law in this state within six months after licensed. The

names and addresses of applicants making an average erade

of 75 per cent on all subjects, and who shall have been found

to be of good moral character, shall be certified to the

Clerk of the Supreme Court, with a recommendation that

they be licensed as attorneys-at-law and solicitors in ¢han-

cery.”’

DetiFs oF THE CLERK

‘*U'pon receipt of the report from the Board recommend.

ing an applicant for license, the clerk shall immediately

notify the said applicant, sending him a petition for license

and oath of office. Said petition, when properly executed

and returned, shall be presented to the Court, when the

order of enrollment will be made and license issued."

DeTieEs oF THE APPLICANT

“The applicant shall execute the petition and take the

oath before some officer authorized by law to administer

official oaths (a notary public cannot do so), and return

the petition to the clerk of the Supreme Court, together

) oe

with the fee provided by law ($15.00). Each applicant for

admission to the Bar is required to answer under oath a

questionnaire on forms preseribed by the Court. Should any

answer be false ina material respect, the applicant will be

rejected if the fact is ascertained before enrollment; but if

enrolled, such attorney is subject io disbarment,"

Dirks oF THE Storkrany

“The duties of the Secretary are purely ministerial Te

shall attend to all necessary correspondence of the Board

‘and shall furnish to applicant all needed information rela-

tive to, and petitions for leave to take the examination,

‘He shall give such bond as may be required by the

Board. Tle shall keep a faithful aecount of all fees col.

lected and expenditures made; make a detailed report to

the Board at each regular meeting; and shall perform such

other duties as may be directed by the Board.”

EXAMINATION Stpasbers Passing Guape

“The rule entitled ‘Examination. Subjects | Passing

Grade’ was amended Mareh 14, 1960, as follows: ** AT

examinations shall be in writing and shall cover the fol

lowing subjects: Torts, Contracts, Real Property, Pro.

eedure-—Trial and Appellate, Criminal Law and Procedure,

Equity, Constitutional Law, Corporations, Evidence, Con-

fliet of Laws, Wills and Probate Law, Ageney, Trusts, and

such other subjects as the Board may direct.

Applicants must make an average of 4o per cent on all

subjects in order to pass.”

Aprrnuications to Take Exawixation

‘OAL applicants for leave to take the examination shall

be filed with the Secretary at least one month in advance

of the date of the examination."

Exrexsk Fee - AmMexpen Manen 14, 1960

‘A fee of $25.00 must accompany the applieation to

take the examination, and a fee of $50.00 must accompany

the application for admission without examination Creei-

28

procity rule), remittance heing made by postoffice money

order or Little Rock exchange, payable to the State Board

of Law Examiners. The fees thus provided sliall be used

by the Board to defray the expense of examination, neces

sary expense of the Board members while attending meet

ings and to provide a reasonable compensation tor the

services of its Seeretary, which amount shall be fixed by

the Board."’

REQUIREMENTS FoR Tanwing EXAMINATION

‘Acting under Amendment No, 28 and also the Conrt's

inherent power, and in accordance with the report of ths

Committee of the Junior Bar Section of the Bar Assocta-

tion of Arkansas, the Supreme Court adopted the followine

Rules effective July 1, 1949, governing admission to the

Bar.

1. No candidate shall be allowed to take the bar ONE Lg

tion who has not completed at least two vears of pre baw

study in a college approved by the State Board of Law

Examiners,

2. No candidate shall. be allowed to take the bar examina:

tion unless he meets one of the following requirements,

a. Satisfactory completion of 1250 elass room hours of

instruction ina law school approved by the State Board

of Law Examiners; or

b. Four vears of full-time private study ina hiw ofiece

after registration with the State Board of daaw bexain

ners,

8. Graduation from a law school shall nei confer the

right of admission to the bar, and every candidate shall

be subject to an examination,

4. From and after the July 1960 examination anv apni.

cant who has taken the examination unsuceesstully three

or more times may be allowed to retake the examination

only if at least twelve months have elapsed since last takine

the examination."’

29

GENERAL INFORMATION

Admission to practice is based upon grade made on

the examination and moral qualifications.

“The examination is in writing. Each applicant must

provide himself with the necessary pen and paper.

No questions from previous examinations are available

for distribution,

or information relative to the examination and appli-

eation to take same consult the Secretary, who should be

addressed as Secretary of State Board of Law Examiners,

Littl: Rock, Arkansas.

The former Rules of the Supreme Court of Arkansas

ns to the Admission to Practice Law, see Volume 207

Arkansas Reports NNN, NANiv:

Graduates of University of Arkansas School of Law and

Arkansas Law School"

Every applicant for admission to practice in the courts

of this State shall be examined pursuant to rules of the

Supreme Court of this State, and shall before his or her

admission produce to the Court, by sworn petition, satis-

factory proof of the qualifiertions required by Chapter

XII, Pope's Digest.

Provided, however, that all students who shall have com-

pleted the full legal course required by the University of

Arkansas School of Law, and have received a diploma

from the constituted authorities thereof showing gradua-

tion from the Law Schook shall not be required to take an

examination,

And further provided, any applicant) who shall have

completed a four year college course and has received his

or her college degree from the constituted authorities there-

of, showing eraduation from the college and who in addition

thereto shall thereafter have completed a three vear law

course in the Arkansas Law School, and received a diploma

from the constituted authorities thereof, showing gradua-

tion from the Arkansas Law School, shall not be required

to take an examination, and such graduation diploma shall

he sufficient proof of the qualifications of such appheant

for admission to the bar, and to authorize such graduate

to practice law in the courts of this State and may be

30

enrolled upon motion made to and entered by the Supreme

Court.”’

GENERAL INFORMATION

‘*Admission to practice is based upon grade made on

the examination and moral qualifications. No literary or

law degree is required to entitle one to take the examina-

tion.

The examination is in writing and ordinarily covers a

period of two days. Each applicant must provide himself

with the necessary pen and paper.

No questions from previous examinations are available

for distribution.

For information relative to the examination and appli-

cation to take same, consult the Secretary, who should be

addressed as Secretary of State Board of Law Examiners,

Little Rock, Arkansas.’’

31

APPENDIX D>

Photostatic copy of docket entries

CourtT Orpvers

2-17-61 ten days addn time to file ans. (nune pro tune

order).

2-24-61 Appellant's motion for judgment by default.

Served. |

2-27-61 Respondent's answer to petition, and) response

to motion for default Judgment. Served.

3-6-61 Submitted on motion for default Judgment.

3-13-61 Motion denied.

3-27-61 Per curiam opinion pursuant to order of denial.

Stark OF ARKANSAS,

In the Supreme Court:

I, Pruoar N. Gowex, Clerk of the Supreme Court of Ark-

ansas, do hereby certify that the foregoing photographed

material constitutes a true copy of the docket entries in

the case of James Joseph Cenac v. State Board of Law Ex-

aminers, No. 90-2404.

In Testimony Whereof, T have hereunto set my hand and

affixed the Seal of the Supreme Court of. Arkansas, this

4th day of April, A.D. 1961.

Puitip N. Gowen,

Clerk.

32

APPENDIX E

ORIGINAL PROCEEDING

SUPREME CourT OF ARKANSAS

No. 2404

JAMES JOSEPH CeEnac, Petitioner,

vs,

StaTeE Buoarp oF Law Examiners oF AkKANSAS, Respondent

Deniep, March 13, 1961.

Pex CurtaM OrpDER

Motion for judgment by default denied.

33

Filed March 27, 1961, Philip N. Gowen, Clerk.

SUPREME Counr of ARKANSAS

No. 2404 /

James Joseru Cenac, Petitioner,

Ms,

Stave Boarbp or Law Examiners of ArkaANsas, Respondent

OrigiInaL PROCEEDING

DENIED

Per CurtamM Opinion

On February 1, 1961, the Petitioner officialls filed) his

Petition in this Court praying that the State Board of

Law Examiners be required to show cause why he should

not be admitted to practice law, and upon their failure to do

so, that he be licensed to so practice law. The claims upen

Which this prayer is based are set forth in the Petition.

No summons was caused to be issued by the Petitioner di

rected to the Respondent, but on Friday, February 17, 1961,

the Honorable John Haley, Attorney, Chairman of) the

Board of Law Examiners, was notified personally by the

Clerk of this Court of the date of filing of said Petition.

Haley thereupon requested additional time ino which to

file an Answer and Response. Pursuant to this request,

the Clerk of this Court eranted the said Haley ten extra

days in which to file an Answer and Response, Thereafter,

on February 24, 1961, Petitioner filed a Motion for De-

fault Judgment; and three days later, on February 27, 1961,

the Respondent's Answer and Response to the Motion for

Default Judgiient was filed, well within the time allowed

by the Clerk of this Court, as shown by the docket entry.

On March 6, 1961 the Petitioner’s Motion for Default

Judenent was sabmitted for the consideration of this Court,

and on Marel 13, 1967 this Court entered an Order over-

ruling the Motion for Default Judgment. This Per Curiam

Opinion follows pursuant thereto. With the Motion for

‘ 34

Default denied, and issues joined, the Attorney for the

Petitioner has been advised that any issue of faet may be

handled in accordance with Rule 17(¢) of this Court.

The reasons for overruling Petitioner’s Motion for De-

fault Judgment are hereinafter set out:

This being an original action (conceding without deciding

that said action is properly brought in this Court) the

procedure is governed by Rule 17(a) of this Court. In

essence, Rule 17(a) states that the procedure in such an

action ‘‘will conform to that prevailing in the chancery

courts. Summons or other process will be issued by the

clerk of this court, the respondent’s pleading to be filed

within the time allowed in chancery cases.’’ Under this

procedure the Respondent’s Answer would be due within

twenty days after the Petition was filed) and summons

issued and served thereon. In this case however no sum-

mons was ever issued. We find that the Respondent had

no notice of the filing of the Petition until approximately

three days before the Answer would have been due. This

being the case the Cler k, having full authority of this Court

to do so, granted the Respondent ten extra davs in which

to file a Response, making said Response due on March 26,

1961. The Answer and Response, as above stated, was filed

within that time, namely on February 27, 1961. This being

true, Petitioner was not entitled toa Default Judgment.

The Court also notes that the Petitioner left his Petition

with the Clerk of this Court, without advancing the filing

fee, in the early part of December, 1960, and this was held

awaiting the payment of the fee; and all the matters herein-

after mentioned that occurred from December, 1960 to Feb-

ruary 1, 1961 were because of this irregular filing. On De-

cember 14, 1960 a Committee composed of three Judges of

this Court to supervise the work of the Examining Board

met with the Attorney for the Petitioner and Mr. Haley,

Chairman of the Board of Examiners. The result of this

meeting was reported to the full Court regularly convened,

and on January 9, 1961, the Court directed the Clerk of this

Court to notify the Petitioner's Attorney by letter. On

yr

oe)

January 10, 1961 the Clerk of this Court wrote the letter to

Cenac’s Attorney stating among other things that:

“The Court has instructed me to inform vou that the

above Petition has been denied, pursuant to the recom-

mendation of the Court's standing Committee upon

such matters,

“The Committee’s recommendation was based upon

the hearing at which vou were present, along with the

chairman and the secretary of the Board of Law Ex-

aminers. From the statements made at the hearing the

Committee found it to be an undisputed fact that the

examiners grade the papers by number only, and do not

know the name of the particular applicant whose papers

are being graded. Tt is accordingly the Court’s con-

clusion that Mr. Cenae’s failure to make a passing grade

upon the examination has been the sole reason for his

not being admitted to practice.’

In view of all of the foregoing it is the opinion of this

Court that the Petitioner's Motion for a Default Judgment

should be, and it is hereby, denied,

(6571-4)