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LOWRIE v. GOLDENHERSH

February 26, 1981

J. KENNETH LOWRIE, PLAINTIFF,
v.
JOSEPH H. GOLDENHERSH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Grady, District Judge.

MEMORANDUM OPINION

This case presents a challenge to one of the rules of the Illinois Supreme Court regulating admission to the Illinois bar. The practical question is whether the applicant is entitled to admission without taking the Illinois state bar examination. The rule in question, Illinois Supreme Court Rule 705(a)(1)*fn1 allows admission on a foreign license without examination, provided the applicant has practiced for five of the seven years immediately preceding his application in a state in which he has been licensed.

In 1979 plaintiff applied for admission to the Illinois bar under Rule 705(a)(1). He was denied admission on the obvious ground that he had not practiced for five of the preceding seven years in the State of Michigan. He then applied to the Illinois Supreme Court for a waiver of the requirements of Rule 705(a)(1), which request was denied. Plaintiff has now filed this suit in which he challenges the constitutionality of Rule 705(a)(1). Defendants have moved to dismiss for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).

Plaintiff first attacks the Illinois rule as a denial of equal protection of the law, in violation of the Fourteenth Amendment. He argues that the distinction between applicants who have practiced five years in the state in which they were licensed and those who have practiced for five years in a state in which they are not licensed bears no rational relation to the apparent objective of the Illinois rule of insuring the competence of attorneys entering Illinois practice without taking the bar examination. Plaintiff points out that had he worked for the Justice Department in Detroit for the past five years, he would clearly satisfy the requirement of the Illinois rule. Even though the work he has done for the Justice Department in Illinois is substantially similar to the work he might have done in Detroit, plaintiff has been denied admission under Rule 705(a)(1) because the actual location of his practice has not been in a state in which he is licensed.

To satisfy the equal protection requirement, the state must demonstrate that "it is conceivable that the [rule] bears a rational relationship to an end of government which is not prohibited by the Constitution." Ktsanes v. Underwood, 467 F. Supp. 1002, 1007 (N.D.Ill. 1979) (three judge panel rejecting challenge to Illinois Supreme Court bar rule). See also Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1959); Murphy v. State Board of Law Examiners for the Commonwealth of Pennsylvania, 429 F. Supp. 16, 18 (E.D.Pa. 1977). While we agree with plaintiff that the Illinois rule bears no rational relationship to a state objective of insuring the competence of attorneys,*fn2 we do not find this to be the only permissible state objective. The state has a legitimate interest in preventing professional misconduct in the practice of law. We cannot say that a continuous period of employment in a jurisdiction which has granted a license and is concerned with the policing of its licensees is not some assurance of the character and fitness of those licensees when they apply for admission to another bar. While plaintiff has practiced for the past five years in one state, it is a state in whose courts he has not been licensed to practice*fn3 and which lacks authority to revoke or suspend the only license he holds. Although professional misconduct occurring in Illinois could be brought to the attention of the State of Michigan, this constitutes at best an attenuated disciplinary mechanism.

Plaintiff does not dispute the legitimacy of the state interest in the character and fitness of its attorneys, but argues that the identical objective is accomplished by Illinois Supreme Court Rule 705(a)(3), which provides that the applicant must prove his "good moral character and general fitness to practice law . . ." and must submit a certificate from a judge of a court in the state in which he is licensed attesting to his membership in good standing and admission to the bar of that state. Plaintiff's Supplemental Memorandum in Opposition to Defendants' Motion to Dismiss at 3. See also Exhibit C, ¶ 12 to Plaintiff's Complaint. However, as discussed above, we do not agree that these two rules are duplicative: 705(a)(3) assumes that the state has had an opportunity to observe and police the professional conduct of the applicant; 705(a)(1) insures that the state has had that opportunity. In addition, the fact that alternative, or less restrictive, measures might exist or be devised to effectuate a state's legitimate purpose is irrelevant. "Legislation need not deal with all phases of a problem in the same way, so long as the distinctions drawn have some basis in practical experience." South Carolina v. Katzenbach, 383 U.S. 301, 331, 86 S.Ct. 803, 820, 15 L.Ed.2d 769 (1966). See also McGinnis v. Royster, 410 U.S. 263, 276, 93 S.Ct. 1055, 1062, 35 L.Ed.2d 282 (1973).

Turning to plaintiff's next argument, we find his claim under the Supremacy Clause of Article VI of the United States Constitution to be insubstantial. It is argued that the Illinois rule discriminates against federal attorneys assigned to work in various states and effectively prevents them from pursuing their livelihood. However, plaintiff and others similarly situated are not prevented from practicing law in Illinois, but are simply required, at most, to take the same bar examination that most other applicants take. Plaintiff has not suggested any law of the United States, even expansively construed, which is contravened by the Illinois bar licensing requirements. The federal government has not undertaken any regulatory or licensing system for lawyers, whether or not they are federally employed. This function resides with the states. See Goldfarb v. Virginia State Bar, 421 U.S. 773, 792-93, 95 S.Ct. 2004, 2015-16, 44 L.Ed.2d 572 (1975); Whitfield v. Illinois Board of Law Examiners, 504 F.2d 474, 477 (7th Cir. 1974).

Nor do we think the rule violates plaintiff's right to interstate travel to pursue his profession. The constitutional "right to travel" under the Equal Protection and Privileges and Immunities Clauses to the Constitution does not imply that a citizen "carries with him from state to state an absolute right . . . to practice . . . a profession. . . ." Hawkins v. Moss, 503 F.2d 1171, 1178-1179 (4th Cir. 1974), cert. denied, 420 U.S. 928, 95 S.Ct. 1127, 43 L.Ed.2d 400 (1975). Admission to practice in one state is not automatic admission to practice in the courts of another state. Application of Wasserman, 240 F.2d 213, 214-215 (9th Cir. 1956); Hawkins v. Moss, 503 F.2d at 1175-1176 ("licenses to practice law . . . have no extraterritorial effect or value and can vest no right in the holder to practice law in another state."). The Supreme Court noted in Shapiro v. Thompson, 394 U.S. 618, 638 n. 21, 89 S.Ct. 1322, 1333 n. 21, 22 L.Ed.2d 600 that residency requirements to obtain a license to practice a profession are not necessarily penalties upon the exercise of the constitutional right of interstate travel. See also Memorial Hospital v. Maricopa County, 415 U.S. 250, 259 n. 13, 94 S.Ct. 1076, 1082 n. 13, 39 L.Ed.2d 306 (1974). We find that the requirement that an applicant to the Illinois bar reside and practice for a period in the state in which he is licensed is not so burdensome as to constitute a "penalty" against the exercise of the constitutional right to travel. See Shapiro v. Thompson, 394 U.S. at 634, 638 n. 21, 89 S.Ct. at 1333 n. 21 (denial of "basic necessities of life" found to be a penalty); Dunn v. Blumstein, 405 U.S. 330, 340-342, 92 S.Ct. 995, 1002-04, 31 L.Ed.2d 274 (1972) (absolute denial of right to vote); Memorial Hospital v. Maricopa County, 415 U.S. at 257-259, 94 S.Ct. at 1081-82 (right to "basic necessities of life," including non-emergency hospitalization and medical care).

We have no jurisdiction over the question of whether plaintiff qualifies for an exemption from the requirements of Illinois Supreme Court Rule 705(a)(1).*fn4 This is a matter for the Illinois Supreme Court, and its determination can be challenged only by a petition for certiorari to the United States Supreme Court. Woodard v. Virginia Board of Bar Examiners, 598 F.2d 1345, 1346 (4th Cir. 1979); Doe v. Pringle, 550 F.2d 596, 599 (10th Cir. 1976), cert. denied, 431 U.S. 916, 97 S.Ct. 2179, 53 L.Ed.2d 227 (1977); Feldman v. State Board of Bar Examiners, 438 F.2d 699, 704 (8th Cir. 1971). Cf. Ktsanes v. Underwood, 552 F.2d 740, 743 (7th Cir. 1977) (only the general validity of the Illinois bar rules can be raised in the lower federal courts).

The motion to dismiss is granted.

ON MOTION TO RECONSIDER

Plaintiff has filed a motion to reconsider our Memorandum Opinion and Order of February 26, 1981 ("Mem. Op." or "Memorandum Opinion") dismissing this action. The filing of this motion has given us an opportunity to reassess the grounds for our earlier opinion. For reasons discussed below the motion to reconsider is denied.

Plaintiff presents a number of arguments for reconsideration, some of which are repetitive of arguments he presented at the earlier pleading stage. We ...


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