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Ktsanes v. Underwood

decided: March 23, 1977.

BASIL D. KTSANES, PLAINTIFF-APPELLANT,
v.
HONORABLE ROBERT C. UNDERWOOD ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 75 C 3421 - Joseph Sam Perry, Judge.

Fairchild, Chief Judge, John S. Hastings, Senior Circuit Judge,*fn1 and Swygert, Circuit Judge.

Author: Swygert

SWYGERT, Circuit Judge.

Rule 705 of the Illinois Supreme Court (Smith-Hurd Ill. Ann. Stats. Ch. 110A § 705) provides that an attorney who has resided and practiced law in another state for five years may, upon passing a character and fitness test, be admitted to the bar of Illinois.*fn2 The rule further provides that an otherwise qualified attorney who has practiced in another state is ineligible to apply for admission if that attorney has previously taken and failed an Illinois bar examination.*fn3

This appeal presents two issues: (1) whether the Illinois Supreme Court's denial of plaintiff-appellant's petition for waiver of Rule 705(d) and admission to the bar of Illinois on foreign license is a judicial proceeding directly reviewable by the United States Supreme Court, thus rendering the district court without jurisdiction to consider an attack on that denial; and if not, (2) whether the plaintiff-appellant presented a substantial federal question requiring the convening of a three-judge court. We hold that the petition for waiver of Rule 705(d) and its denial did not constitute a judicial proceeding appealable to the United States Supreme Court. We further hold that a substantial federal question exists which requires the consideration of a three-judge court.*fn4

Plaintiff Basil D. Ktsanes brought this action against the Justices of the Illinois Supreme Court and the members of the State Board of Law Examiners pursuant to 42 U.S.C. § 1983. Plaintiff requested the convening of a three-judge court under 28 U.S.C. § 2281 for a declaration that Rule 705(d) of the Supreme Court of Illinois is void and unenforceable, and for an injunction against enforcement of the rule by defendants. The plaintiff alleged that Rule 705(d) violates the Equal Protection Clause of the Fourteenth Amendment.

The district court granted defendants' motion to dismiss, refusing to convene a three-judge court. This appeal followed.

Plaintiff was born in Illinois and resided there until he went to Louisville, Kentucky to attend law school. He graduated in June 1967 and returned to Illinois where he took the Illinois bar examination in July and failed to pass. When he could not find satisfactory employment in Illinois, plaintiff returned to Louisville where he found a position with the Jefferson County Attorney's office.

In July 1968 the plaintiff passed the Kentucky bar examination and was appointed as assistant county attorney. In April 1969 he accepted a position as legal assistant to the Governor of Kentucky in the Department of Finance, and in August 1970 was promoted to deputy finance commissioner. He also served as an assistant commonwealth attorney.

A reciprocity agreement permitting admission on foreign license exists between Illinois and Kentucky. Plaintiff requested an application from the Illinois State Board of Law Examiners; it was denied under Rule 705(d) because he had previously failed the Illinois bar examination. He then petitioned the Justices of the Illinois Supreme Court for an exemption from the rule. The petition was denied in March 1975. Ktsanes subsequently filed this action in federal court under section 1983.

The threshold issue is whether there was jurisdiction to hear a constitutional challenge to Rule 705(d) in the district court. If jurisdiction exists, we must decide whether the issues present a substantial federal question, necessary in order to convene a three-judge court.

I

The Attorney General of the State of Illinois on behalf of the defendants argues that there is no jurisdiction to hear this case because it amounts to a review of a decision of the Illinois Supreme Court by a federal district court. Proper procedure, he contends, would have been an appeal from the Illinois court directly to the Supreme Court of the United States under 28 U.S.C. § 1257. We do not agree.

The United States Supreme Court in a previous challenge to the right of the Illinois Supreme Court to exclude a person from the bar of that state considered the requirement of a case or controversy under Article III of the federal Constitution. In re Summers, 325 U.S. 561, 89 L. Ed. 1795, 65 S. Ct. 1307 (1945). In that case the plaintiff, a conscientious objector, had been excluded from the bar because he would not take the required oath to support the constitution of Illinois. He alleged that the exclusion was in violation of the Due Process clause of the Fourteenth Amendment based upon First Amendment freedom of religion grounds. Summers had completed all the prerequisites for admission to the bar except that the committee on character and fitness had not certified him. He filed a petition for admission in the Illinois Supreme Court, alleging that he had been refused the certificate because he was a conscientious objector and that this was in violation of the Fourteenth Amendment. The petition was denied. In the United States Supreme Court, the ...


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