Ktsanes v. Underwood

• Decision Date: 23 March 1977
• Docket Number: No. 76-1623,76-1623
• Citation: 552 F.2d 740
• Parties: Basil D. KTSANES, Plaintiff-Appellant, v. Honorable Robert C. UNDERWOOD et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 740

552 F.2d 740

Basil D. KTSANES, Plaintiff-Appellant, v. Honorable Robert C. UNDERWOOD et al., Defendants-Appellees.

No. 76-1623.

United States Court of Appeals Seventh Circuit.

Argued Dec. 2, 1976.

Decided March 23, 1977.

Jason E. Bellows, Chicago, Ill., for plaintiff-appellant.

William J. Scott, Atty. Gen., Herbert Lee Caplan, Asst. Atty. Gen., Chicago, Ill., for defendants-appellees.

Before FAIRCHILD, Chief Judge, HASTINGS, Senior Circuit Judge, ¹ and SWYGERT, Circuit Judge.

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. ² 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. ³

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. ⁴

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 under28 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, 65 S.Ct. 1307, 89 L.Ed. 1795 (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 defendants, the Justices of the Illinois Supreme Court, argued that the constitutional issue raised could not be considered because there was no case or controversy and the Supreme Court, therefore, lacked jurisdiction. The Court held, however, that a true controversy did exist.

The standard used in such a determination is necessarily a federal one arising from the requirement in Article III, § 2, Cl. 1 of the Constitution. ⁵ In re Summers, supra at 566, 65 S.Ct. 1307; Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U.S. 249, 259, 53 S.Ct. 345, 77 L.Ed. 730 (1933). The question must have assumed "such a form that the judicial power is capable of acting on it", In re Summers, supra at 567, 65 S.Ct. at 1311; Osborn v. Bank, 22 U.S. (9 Wheat.) 738, 819, 6 L.Ed. 204 (1824), and be more than a "desire for an abstract declaration of the law." In re Summers, supra at 567, 65 S.Ct. at 1311; Fairchild v. Hughes, 258 U.S. 126, 129, 42 S.Ct. 274, 66 L.Ed. 499 (1922); Muskrat v. United States, 219 U.S. 346, 361, 31 S.Ct. 250, 55 L.Ed. 246 (1911). Although the proceedings in Summers were informal and had not been treated as judicial by the Illinois Supreme Court, that court had considered the petition on its merits and rejected it. The Supreme Court of the United States found this treatment had developed the issue sufficiently to make the proceeding adversary.

In the instant case we have exactly the opposite set of circumstances. When Ktsanes petitioned the Illinois court, the petition was merely one for exemption from the rule, not a challenge of it. There was no "claim of a present right to admission to the bar of a state and a denial of that right" which the Summers Court held to create a case or controversy under Article III. Summers, supra at 568, 65 S.Ct. at 1307. Ktsanes never argued the question of the validity of Rule 705(d) before the Illinois Supreme Court. He was asking for ministerial action, not judicial determination. The denial of his petition was made by the court acting in an administrative capacity. See Law Students Research Council v. Wadmond, 401 U.S. 154, 158 n. 9, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971); Lathrop v. Donohue, 367 U.S. 820, 827, 81 S.Ct. 1826, 6 L.Ed.2d 1191 (1961). That denial did not present a case or controversy cognizable by an Article III court, and, thus, was not appealable to the Supreme Court of the United States.

The constitutional questions raised by this case were first asserted in the district court; the equal protection issue had nowhere before been litigated. The cases cited by the Attorney General for the proposition that determinations of state courts are appealable only to the United States Supreme Court are inapposite here. In re Summers, supra; Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1876); Cheramie v. Tucker, 493 F.2d 586 (5th Cir. 1974). Those cases involve instances in which the issues were fully developed or in which adversary proceedings had been held. Unlike the instant case, they were appealable to the Supreme Court because they presented cases or controversies within the meaning of Article III.

Defendants present several cases to support their contention that a lower federal court cannot hear a challenge to the denial of admission to a state bar. Doe v. Pringle, 550 F.2d 596 (10th Cir. 1976); Feldman v. State Board of Law Examiners, 438 F.2d 699 (8th Cir. 1971); MacKay v. Nesbitt, 412 F.2d 699 (9th Cir. 1969); Jones v. Hulse, 391 F.2d 198 (8th Cir. 1968). They point to the language in these cases which states, in effect, that admission, discipline, and disbarment of members of a state bar are matters for the state courts, and that federal district courts do not sit as courts of appeal on such matters. This language is generally true; however, the Supreme Court commented in Schware v. Board of Bar Examiners of the State of New Mexico, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957):

Admission to practice in a State and before its courts necessarily belongs to that State. Of course, legislation laying down general conditions of an arbitrary or discriminatory character may, like other legislation, fall afoul of the Fourteenth Amendment. 353 U.S. at 248, 77 S.Ct. at 761.

This is just such a case, in which the rule "laying down general conditions" is claimed to be discriminatory.

II

Since jurisdiction did exist in the federal district court, we must next determine whether a three-judge court is necessary to hear the case. Defendants argue that no substantial federal question is raised by plaintiff's constitutional challenge to Rule 705(d)...