Salibra v. Supreme Court of Ohio

• Decision Date: 03 April 1984
• Docket Number: No. 83-3088,83-3088
• Citation: 730 F.2d 1059
• Parties: Lawrence A. SALIBRA, II, Plaintiff-Appellant, v. SUPREME COURT OF OHIO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1059

730 F.2d 1059

Lawrence A. SALIBRA, II, Plaintiff-Appellant, v. SUPREME COURT OF OHIO, et al., Defendants-Appellees.

No. 83-3088.

United States Court of Appeals Sixth Circuit.

Argued Feb. 17, 1984.

Decided April 3, 1984.

Peter D. Miller, Cleveland, Ohio, for plaintiff-appellant.

Anthony J. Celebrezze, Atty. Gen. of Ohio, David E. Northrop, Asst. Atty. Gen. (argued), Columbus, Ohio, for defendants-appellees.

Federal Bar Association, Arlington, Va., American Corporate Counsel Ass'n, Washington, D.C., for amicus curiae.

Before LIVELY, Chief Judge, KENNEDY, Circuit Judge, and TAYLOR, District Judge. ^*

CORNELIA G. KENNEDY, Circuit Judge.

This case involves a challenge to a rule of admission to the bar of the State of Ohio. Appellant Lawrence Salibra (Salibra) is an attorney, a member of the Wisconsin, Illinois and New York bars. He wishes to be admitted to practice law in Ohio without taking the Ohio Bar examination, but is precluded by a rule of the Supreme Court of Ohio. Salibra challenges the constitutionality of this rule on equal protection and right to travel grounds, asking for a declaratory judgment. The District Court dismissed his claim sua sponte under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, and we affirm.

Rule I, Sec. 8 ¹ of the Supreme Court Rules for the Government of the Bar of Ohio governs admission to the bar without examination. ² Subsection (A)(e) requires that the applicant furnish:

(e) evidence showing that applicant has, while a non-domiciliary of Ohio and for at least five years, engaged in legal work outside Ohio of such character and description as shall satisfy this court that the applicant possess the legal skills deemed adequate for admission to

the practice of law in Ohio without examination ....

(Emphasis added.)

Salibra graduated from law school in 1974, practiced for a private firm in Illinois for two years, and then began work as corporate counsel for Alcan Aluminum Corp. in Cleveland, Ohio. He has continued to work for Alcan since 1976. Salibra has been able to practice law in Ohio for the last several years without being admitted to the bar by virtue of Ohio Supreme Court rule VII(5): ³

(5) Every attorney admitted to the practice of law in another state, but not in Ohio who performs legal services in this state solely for his employer as a full-time employee shall also file a Certificate of Registration and pay the fee as required by the foregoing sections of this Rule. Said registration shall continue in force only so long as such attorney is so employed.

Salibra argues that rule I, Sec. 8(A)(e) violates equal protection and denies him his right to travel because it requires five years of legal practice outside Ohio for admission without examination.

I.

In his brief Salibra argued that the District Court should not have dismissed his action sua sponte for failure to state a claim, without first having given him a hearing or a chance to submit a written argument. We recently disapproved of such sua sponte dismissals on the merits in Tingler v. Marshall, 716 F.2d 1109 (6th Cir.1983). ⁴ Under Tingler, a district court, when faced with a complaint which it believes may be subject to dismissal, must:

1) allow service of the complaint upon the defendant;

2) notify all parties of its intent to dismiss the complaint;

3) give the plaintiff a chance to either amend the complaint or respond to the district court in its notice of intended sua sponte dismissal;

4) give the defendant a chance to respond or file an answer to motions;

5) if the claim is dismissed, state its reasons for the dismissal.

The District Court in Salibra's case omitted steps 2 through 4, and its dismissal was consequently improper under Tingler. Counsel for Salibra has requested by letter, however, that we decide the case on the merits. In view of this request and the posture in which the case reaches up, we will not remand this case to the District Court for further proceedings. The case was decided prior to our decision in Tingler, and is now before us fully briefed on the merits. The parties agree that the issues involve solely questions of law, fully reviewable by this court. In Tingler we criticized sua sponte dismissals on the merits as being ultimately wasteful of judicial resources. In the interest of conservation of those resources we now address the merits of Salibra's case.

II.

Salibra points out that if he had practiced law in any state other than Ohio for the past five years as a resident of any other state, he would now be eligible for admission to the Ohio Bar without examination. Because he chose to practice in Ohio, however, he must now take the bar examination to become a member. He submits that this is a violation of the equal protection clause of the Fourteenth Amendment. Salibra argues that the equal protection clause forbids Ohio from crediting only work done outside Ohio for admission to the bar without examination.

Salibra has the burden of demonstrating the unconstitutionality of the challenged classification. Parham v. Hughes, 441 U.S. 347, 351, 99 S.Ct. 1742, 1745, 60 L.Ed.2d 269 (1979). ⁵ The classification is not based on a "suspect class" or other immutable human attribute and does not involve a "fundamental right", ⁶ and so need have only a reasonable basis to pass constitutional muster. Id.; Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 723, 66 L.Ed.2d 659 (1981); Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 942, 59 L.Ed.2d 171 (1979); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970); Lindsley v. National Carbonic Gas Co., 220 U.S. 61, 79, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1910); Lowrie v. Goldenhersh, 716 F.2d 401, 408-09 (7th Cir.1983). See Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957) ("any qualification [for the bar] must have a rational connection with the applicant's fitness or capacity to practice law").

We find that there is a rational basis for the Ohio Supreme Court's distinction between work performed inside Ohio under a special rule and work performed outside of Ohio. A first rationale, noted by the District Court, is that the Ohio rule encourages attorneys who come into the state with less than five years of legal practice to take the bar immediately. Although the state will permit an attorney to practice law for a corporate employer without admission to the bar, concerns of knowledge and competency in Ohio law argue for a policy encouraging these corporate employees to take the bar exam soon after arrival in the state. A policy which would allow such attorneys to gain admission without examination after five years of practice would encourage them to practice without taking the bar, and this could have an adverse effect on the level of competence in corporate practice. A state's interest in regulating the practice of law within its borders is compelling, because lawyers are essential to the primary governmental function of administering justice. Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 2015, 44 L.Ed.2d 572 (1975); Bashir v. Supreme Court of Ohio, 501 F.Supp. 288, 291 (S.D.Ohio 1980), aff'd, 652 F.2d 641 (6th Cir.1981). See In re Griffiths, 413 U.S. 717, 722-23, 93 S.Ct. 2851, 2855-56, 37 L.Ed.2d 910 (1973); Konigsberg v. State Bar of California, 366 U.S. 36, 52, 81 S.Ct. 997, 1007, 6 L.Ed.2d 105 (1961).

The Ohio rule's classification also has the reasonable goal of encouraging experienced attorneys to come into Ohio to practice law. Such encouragement is not necessary for attorneys in Salibra's position who have already been practicing law in Ohio for at least five years.

Moreover, Salibra is not being treated unequally in this case. On the contrary, he has received special treatment for the past eight years. The Ohio rules generally require that all persons practicing law in Ohio be members of the Ohio Bar. ⁷ Salibra has been able to practice law in Ohio only by virtue of the special exception applicable to corporate lawyers under rule VII, (5). The point here is not whether attorneys employed by corporations have any more or less experience than attorneys otherwise employed. The salient issue is rather that for the past eight years the Ohio Supreme Court has given Salibra special treatment not accorded most lawyers. Now Salibra argues that because Ohio has allowed him to practice for more than five years without being admitted to the bar, it must now grant him the additional benefit of admission without examination. We fail to see how Salibra, who has received special treatment to this time, can now be a victim of an equal protection violation.

Salibra cites Stein v. Coleman, 214 U.S.P.Q. 118 (W.D.Mich.1982), a very similar case, in which a member of the Wisconsin Bar moved to Michigan to work as a patent attorney for a corporate employer. The attorney was allowed to practice in Michigan without admission to the bar by virtue of a Michigan rule allowing practice by corporate counsel. ⁸ Another Michigan rule ⁹ allowed admission without examination for attorneys who have "actively practiced law" for three of the five years preceding application. The Michigan Board of Law Examiners denied the plaintiff's application for admission without examination on the grounds that he had not "actively practiced law" within the meaning of the rule by practicing in Michigan under the special provision for corporate employees.

Plaintiff brought suit against the Michigan Supreme Court, alleging equal protection and right to travel violations. Defendants moved for summary judgment on the ground that plaintiff had failed to state a claim, but the District Court found that he had stated a claim. The court explained that there was no dispute that plaintiff was otherwise qualified for admission without examination, and would have been admitted had he engaged in patent law practice for a corporation for...