Lowrie v. Goldenhersh

Decision Date22 August 1983
Docket NumberNo. 81-2250,81-2250
Citation716 F.2d 401
PartiesJ. Kenneth LOWRIE, Plaintiff-Appellant, v. Joseph H. GOLDENHERSH, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Michael L. Shakman, Krupp & Miller, Chicago, Ill., for plaintiff-appellant.

Patricia Rosen, Asst. Atty. Gen., Chicago, Ill., Charles M. Munnecke, Admission to Practice & Recertification Comm., Olympia Fields, Ill., for defendants-appellees.

Before BAUER and WOOD, Circuit Judges, and CAMPBELL, Senior District Judge. **

HARLINGTON WOOD, Jr., Circuit Judge.

Plaintiff, J. Kenneth Lowrie, a lawyer licensed by the State of Michigan, seeks admission to the bar of the State of Illinois without submitting to the Illinois bar examination. Illinois Supreme Court Rule 705(a) permits the admission of foreign licensed attorneys without further examination provided the applicant has resided and actively and continuously practiced law in the licensing state for a period of at least five years out of the immediately preceding seven years. 1 In 1979, when Lowrie applied for admission under the rule, he was denied admission because he did not meet the rule's time requirement for practice in Michigan, the state of his license. He then applied to the Illinois Supreme Court for a waiver of the rule as applied to him. The waiver was denied and was followed by this lawsuit against the justices of the Illinois Supreme Court and the court-appointed members of the Board of Law Examiners ("Board"). The district court granted defendants' motion to dismiss for failure to state a claim upon which relief could be granted, 2 and Lowrie appeals.

I.

Lowrie was licensed to practice law in the State of Michigan in 1969. From 1969 to 1971, he served as an Assistant United States Attorney in Michigan; from 1971 to 1975, he was a Special Attorney for the United States Department of Justice in Missouri; from 1975 to 1977, he was a member of the Organized Crime Strike Force of the Department of Justice in Springfield, Illinois; and from 1977 until the present, he worked with the Organized Crime Strike Force in Chicago, Illinois. Thus, although Lowrie has been a licensed lawyer actively engaged in the profession for over thirteen years, at least six of those years in Illinois, he is not eligible under Rule 705(a) because five of his last seven years of practice were not in Michigan.

Lowrie challenges the rule as a violation of: (1) the Due Process and Equal Protection Clauses of the Fourteenth Amendment, (2) the right to travel as guaranteed by Section 2 of Article IV, and by Section 1 of the Fourteenth Amendment, (3) the Supremacy Clause of Article VI of the Constitution of the United States, and (4) the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983 (1979). The state characterizes Lowrie's constitutional attack on the rule as a masquerade for a collateral challenge to the Illinois Supreme Court's failure to grant him an exemption from the rule's requirements. The district court held that Rule 705 does not run afoul of any constitutional provision. Additionally, the court held that it had no jurisdiction to determine whether Lowrie qualified for an exemption from the requirements of the rule. 3

II.

Feldman must first be considered to determine its effect upon this case. Two bar applicants for admission to the District of Columbia bar, Feldman and Hickey, petitioned the District of Columbia Court of Appeals 4 seeking waivers of the court's District of Columbia bar admission rule. The rule required graduation from a law school approved by the American Bar Association. Both petitions were denied, and both petitioners filed complaints in the United States District Court for the District of Columbia challenging the District of Columbia Court of Appeals' denials of their waiver petitions and challenging the constitutionality of the bar admission rule. The district court dismissed the complaints for lack of subject matter jurisdiction. Appeals followed, and the United States Court of Appeals for the District of Columbia Circuit reversed and remanded. 5 The Supreme Court, however, vacated the judgment and remanded the cases for further proceedings. We are not alone in finding these bar admission issues troublesome.

In Feldman, the waiver proceedings in the District of Columbia Court of Appeals were determined to be judicial in nature. Claims of present right to admission to the bar were made and rejected. Neither professional qualifications, nor equitable considerations were considered justification for waivers. Feldman's petition was considered to contain legal arguments against the validity of the District of Columbia rule, but in Hickey's petition the legal arguments were obscure. Nevertheless, it was held that Hickey's failure to "cite case authority in support of his arguments or make any explicitly legal contentions [did] not render the proceedings non-judicial," 6 even though the proceedings were not cast in the common mold of judicial proceedings.

It has been recognized, but it is reemphasized in Feldman, that a United States District Court has no authority to review final judgments of a state court. Only the Supreme Court has that power. Therefore, to the extent that Feldman and Hickey sought reviews of their unsuccessful petitions for waiver, the district court lacked subject matter jurisdiction. 7 However, to the extent that the plaintiffs had mounted a "general challenge" to the constitutionality of the rule, the district court had jurisdiction. The general division of the allegations of the complaint between review of a waiver denial and a general constitutional challenge of the rule was, however, further refined. "If the constitutional claims presented to a United States District Court are inextricably intertwined with the state court's denial in a judicial proceeding of a particular plaintiff's application for admission to the state bar, then the District Court is in essence being called upon to review the state court decision. This the District Court may not do." 8

III.

In response to Feldman, Lowrie for the first time now argues that his Illinois Supreme Court waiver petition was not a personal waiver petition after all, and did not generate a Feldman judicial proceeding in the Illinois Supreme Court, but was instead only a request for quasi-legislative action. What Lowrie sought, he now says, was to have the Illinois Supreme Court modify its rules so as to recognize a sub-class of foreign licensed United States government attorneys to whom the foreign license rule should not be applied. The justification advanced for the distinction was that United States attorneys only represent one client, the United States, which they are authorized by federal statute to do. Lowrie characterizes his as a petition for rule-making of a legislative nature, akin to private legislation. In his waiver petition, Lowrie stated several reasons why Rule 705 should be waived as to him, primarily relying upon his educational and professional qualifications.

It is now too late for Lowrie to remodel or rename his waiver petition. After setting forth his professional background, he prayed that the Illinois Supreme Court direct the Board "to waive" the requirements of the foreign license rule as to him and to proceed to process his application for bar admission. In his complaint in the district court, Lowrie alleges that he mailed his "petition for waiver" to the defendants. Had Lowrie had the benefit of Feldman, perhaps his waiver petition to the Illinois Supreme Court would have been drafted otherwise. The fact that the waiver denial by the Illinois Supreme Court was without reasons and evidenced only by a letter from the clerk of that court does not change the judicial nature of the proceedings. The clerk's letter, attached by Lowrie as an exhibit to his complaint, characterizes Lowrie's efforts as a "Motion for Waiver," not as a petition for rule-making by the Illinois Supreme Court acting in an administrative capacity. The letter informed him that the court had denied his motion.

In our original Lowrie opinion, relying on our decision in Ktsanes v. Underwood, 560 F.2d 790 (7th Cir.1977), we viewed the procedures followed by Lowrie before the Illinois Supreme Court as administrative only and not as a judicial determination. We found subject matter jurisdiction and proceeded to consider Lowrie's constitutional claims to determine if he had stated a claim upon which relief could be granted, and affirmed the district court in its finding that he had not. Ktsanes and our original analysis in this case are now outdated. Lowrie, in light of Feldman, clearly instituted a judicial proceeding, not an administrative proceeding in the Illinois Supreme Court. 9 Finding it to be a judicial proceeding does not resolve the issues, however.

The next question that emerges as a result of the Illinois Supreme Court judicial proceedings viewed under Feldman is whether Lowrie is asking the district court to review the adverse waiver decision of the Illinois Supreme Court. The Supreme Court held in Feldman that to the extent that Feldman's and Hickey's suits in the United States District Court could be characterized as seeking review of the District of Columbia Court of Appeals' denial of waiver, there was no jurisdiction, but to the extent that the complaints mounted a general challenge to the constitutionality of the rule, jurisdiction would lie in the district court. 10

The Supreme Court cites, and quotes with approval, Doe v. Pringle, 550 F.2d 596 (10th Cir.1976) 11--a case somewhat similar to Lowrie's. In Doe, the court of appeals found that the district court had no jurisdiction to review a final order of a state supreme court denying "a particular application" to the state bar. The Supreme Court states that Doe properly emphasized the jurisdictional distinction between general challenges to state bar admission...

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