Brown v. Supreme Court of Virginia

• Citation: 359 F. Supp. 549
• Decision Date: 05 June 1973
• Docket Number: 43-72-R.,Civ. A. No. 700-71-R
• Parties: Allison W. BROWN, Jr., Plaintiff, v. SUPREME COURT OF VIRGINIA et al., Defendants. Roger W. TITUS, Plaintiff, v. SUPREME COURT OF VIRGINIA et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

359 F. Supp. 549

Allison W. BROWN, Jr., Plaintiff, v. SUPREME COURT OF VIRGINIA et al., Defendants.

Roger W. TITUS, Plaintiff, v. SUPREME COURT OF VIRGINIA et al., Defendants.

Civ. A. Nos. 700-71-R, 43-72-R.

United States District Court, E. D. Virginia, Richmond Division.

June 5, 1973.

Allison W. Brown, Jr., pro se (Robert M. Alexander, Arlington, Va., and David Carliner, Washington, D. C., on brief).

Stuart H. Dunn, Asst. Atty. Gen., of Va. (Andrew P. Miller, Atty. Gen., of Va., Richmond, Va., on brief), for defendants.

Francis C. Lee, Richmond, Va. (McCaul, Grigsby & Pearsall, Richmond, Va., on brief), for intervenor Virginia State Bar.

Roger W. Titus, pro se (Philip J. Hirschkop, Alexandria, Va., William W. Greenhalgh, Rockville, Md., and Leonard J. Keilp, Arlington, Va., on brief, for plaintiff).

Robert P. Dwoskin, Charlottesville, Va., and Herbert A. Rosenthal, Jr., Washington, D. C., on brief, for American Civil Liberties Union, intervenor.

Before BRYAN, Circuit Judge, and LEWIS and MERHIGE, District Judges, in No. 700-71-R.

Before BRYAN, Circuit Judge, and HOFFMAN and MERHIGE, District Judges, in No. 43-72-R.

WALTER E. HOFFMAN, District Judge, in No. 43-72-R.

PER CURIAM in No. 700-71-R.

These cases involve an area of state-federal relations; namely, the right of a state to establish and administer standards for admission to the bar — a field into which the federal court should be especially reluctant and slow to enter, but one in which there is a duty to investigate in appropriate cases. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); Konigsberg v. State Bar, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957); Douglas v. Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590 (1923); Willner v. Committee on Character, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963).

The actions, originally filed against the Supreme Court of Appeals of Virginia (later renamed the Supreme Court of Virginia) and the individual justices thereof, were consolidated for hearing. The Virginia State Bar was granted leave to intervene. The American Civil Liberties Union requested leave to intervene as a party plaintiff in No. 43-72-R, but the request came too late to permit active participation although we have considered the brief filed. In due time the Supreme Court of Virginia filed a motion for abstention which, after hearing, was granted on May 17, 1972. Following petitions for reconsideration filed by each plaintiff, the Supreme Court of Virginia, in unanimous opinions written by Justice Carrico, denied the applications. Application of Brown, 213 Va. 282, 191 S.E.2d 812, decided October 9, 1972, and Application of Titus, 213 Va. 289, 191 S.E.2d 798, decided October 9, 1972.

Abstention did not, of course, involve the abdication of federal jurisdiction, but only the postponement of its exercise. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 416, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). Apparently the action of this three-judge court was strictly in accordance with the procedure approved by the Supreme Court of the United States. American Trial Lawyers Ass'n v. New Jersey Supreme Court, 409 U.S. 467, 93 S.Ct. 627, 34 L.Ed.2d 651 (1973).

The facts are sufficiently stated in the opinions of the Supreme Court of Virginia. Suffice it to say, these actions attack the validity of Rule 1A:1, reading as follows:

"Rule 1A:1. Foreign Attorneys — When Admitted to Practice in this State Without Examination. "Any person who has been admitted to practice law before the court of last resort of any state or territory of the United States or of the District of Columbia may file an application to be admitted to practice law in this Commonwealth without examination, if counsel licensed to practice here may be admitted to practice there without examination.

"The applicant shall:

"(1) File with the clerk of the Supreme Court at Richmond an application, under oath, upon a form furnished by the clerk.

"(2) Furnish a certificate, signed by the presiding judge of the court of last resort of the jurisdiction in which he is entitled to practice law, stating that he has been so licensed for at least five years.

"(3) Furnish a report of the National Conference of Bar Examiners concerning his past practice and record.

"(4) Pay a filing fee of fifty dollars.

"Thereafter, the Supreme Court will determine whether the applicant:

"(a) Is a proper person to practice law.

"(b) Has made such progress in the practice of law that it would be unreasonable to require him to take an examination.

"(c) Has become a permanent resident of the Commonwealth.

"(d) Intends to practice full time as a member of the Virginia bar.

"In the determination of these matters the Supreme Court may call upon the applicant to appear personally before a member of the Court or its executive secretary and furnish such information as may be required.

"If all of the aforementioned matters are determined favorably for the applicant, he shall be notified that some member of the Virginia bar who is qualified to practice before the Supreme Court may make an oral motion in open court for his admission to practice law in this Commonwealth.

"Upon the applicant's admission he shall thereupon in open court take and subscribe to the oaths required of attorneys at law, whereupon he shall become an active member of the Virginia State Bar."

THE BROWN CASE—NO. 700-71-R

Brown, a member of the bar of the United States Court of Appeals for the District of Columbia, is a permanent resident of Virginia. However, he is employed on a full-time basis as a Supervisory Attorney in the Appellate Court Branch of the National Labor Relations Board, Washington, D. C. While his original application indicated that he intended to practice full time as a member of the Virginia bar, subsequent correspondence clearly revealed that he did not intend to resign his employment and, if admitted, he did not intend to practice full time as a member of the Virginia bar.¹ Accordingly, Brown was advised that his application had been refused because of his failure to comply with Rule 1:5(4)(d), now Rule 1A:1(4)(d).

THE TITUS CASE — NO. 43-72-R

Titus, a member of the bar of the State of Maryland, maintains one office in Rockville, Montgomery County, Maryland, where he also resides, and a second office in the District of Columbia. He concedes that he has no intention of becoming a resident of Virginia. The Supreme Court of Virginia refused his application by reason of his stated intention not to comply with Rule 1A:1(4) (c), requiring permanent residency as to an applicant for admission to the bar without examination.²

Since a judgment of the Supreme Court of a state expresses "the power of the state as a whole," Rippey v. Texas, 193 U.S. 504, 509, 24 S.Ct. 516, 517, 48 L.Ed. 767, Skiriotes v. Florida, 313 U.S. 69, 79, 61 S.Ct. 924, 85 L.Ed. 1193, we must examine the rulings for the purpose of determining whether they are arbitrary or discriminatory, and hence in violation of the Fourteenth Amendment. We start with the accepted premise that the admission to practice the legal profession before the courts of a particular state belongs to that state. As stated by Mr. Justice Black in Konigsberg v. State Bar, supra, "We recognize the importance of leaving States free to select their own bars, but it is equally important that the State not exercise this power in an arbitrary or discriminatory manner nor in such way as to impinge on the freedom of political expression or association."

Many states adhere to the residency requirement as a condition to admission upon motion without examination. Maryland, the home state of Titus, apparently requires a permanent residence, an intention to practice law, and an intention to maintain a law office or teach the profession. By reason of its unique situation, the District of Columbia at one time had no residency requirement but did require five years of practice in a state. Effective April 1, 1972, the District Court rules were modified by Rule 93 providing for admission if the applicant maintains a law office in the District of Columbia or a "contiguous area" in the Maryland counties of Montgomery or Prince Georges, in the Virginia counties of Arlington or Fairfax, or in the City of Alexandria. However, the right to enter an appearance without District of Columbia counsel is limited to those who maintain an office in the District except, with respect to those maintaining an office in the contiguous area but not in the District, they may note an appearance without local counsel only if a member having an office within the District of Columbia and not in the contiguous area is permitted to appear, file pleadings and practice in the courts of such contiguous area without being required to join of record an attorney having an office within the contiguous area. No specific period of prior practice in any state is required. In fact, only Florida, Georgia, Louisiana and the District of Columbia fail to specify any residency requirement for admission to practice on motion without examination. See Desk Book, Am.Jur. (2d), 1972 Cumulative Supplement, Doc. No. 94. Ten states require an examination and refuse to recognize reciprocity. Some of these states also require residency for the purpose of taking the examination. We must reject the argument of plaintiffs that the requirements in Virginia are more stringent than in other states.

It is well to note what these cases do not hold. At the outset it can be said without fear of contradiction that they do not pertain to the moral fitness and character of the applicants. The reports from the National Conference of Bar Examiners with respect to the past practice and record of the applicants were favorable. The question of the right to practice in a federal court is not at issue. We are not concerned with the highly specialized practice such as patent or antitrust law. Nor do these cases prohibit...