is granted and plaintiff's motions are denied.
Two routes are available to an attorney who seeks admission to the Pennsylvania Bar. The attorney can take the written bar examination. Or, the attorney can request that the State Board of Law Examiners recommend to the Supreme Court of Pennsylvania that the applicant be exempted from the written examination, provided he (or she) can demonstrate that he meets the requirements of Rule 9 A and either section (1), (2) or (3). In the instant litigation, Mr. Ricci sought exemption from the written examination pursuant to Section (2), claiming that he had practiced law outside of Pennsylvania for 5 years.
Mr. Ricci made two applications to the State Board for such an exemption. After determining that the plaintiff . . . "clearly had not practiced law outside of Pennsylvania for at least 5 years as required by the Rules of the Supreme Court governing admission to the bar . . ." [Plaintiff's Memorandum in Support of Plaintiff's Motion for Summary Judgment at page 6], the State Board refused to recommend plaintiff each time plaintiff applied. Plaintiff entered an appeal before the Pennsylvania Supreme Court pursuant to Rule 14(b); the Court denied each appeal without opinion.
A quick perusal of the Bar Admissions procedure and the facts of this case reveal that the plaintiff has failed to join the Supreme Court of Pennsylvania (or its Justices) as a necessary and indispensable party under Rule 19(a) of the Federal Rules of Civil Procedure. The Pennsylvania Constitution grants the Supreme Court the responsibility to promulgate rules governing bar admissions. In Supreme Court Rule 7 the Supreme Court vests the State Board of Law Examiners with the responsibility of enforcing the Court's rules concerning registration and admissions to the bar; the State Board is answerable to the Supreme Court of Pennsylvania.
The Supreme Court has delegated to the State Board the preliminary screening function as the Board is authorized to issue a certificate recommending admission to the bar to each applicant it has found to be fit and generally qualified under the Supreme Court's rules. Yet no person can be admitted unless the Supreme Court, upon motion of a member of the bar and submission of the certificate from the Board, grants admission.
Defendants correctly argue that in this case the ultimate goal of the plaintiff is to secure admission to the bar, a goal which, as already indicated, cannot be achieved solely by suing the State Board; this is particularly true where the Supreme Court has on two occasions affirmed the Board's determination that the plaintiff is not qualified under Rule 9A(2). Thus, the Supreme Court is an indispensable party; the decree sought by the plaintiff will require the Court to take action, either directly or indirectly, as the State Board is only an administrative aide to the court. Muerer v. Ryder, 137 F. Supp. 362 (E.D.Pa. 1955); Feldman v. State Board of Law Examiners, 438 F.2d 699, 702 (9th Cir. 1971). See also Shields v. Barrow, 58 U.S. (17 How.) 130, 15 L. Ed. 158 (1854); 3 A Moore's Federal Practice para. 19.07  at 2219 (1974). The State Board of Law Examiners, which lacks authority to promulgate or change rules governing admission to the bar, is not an appropriate party to this suit. Hackin v. Lockwood, 361 F.2d 499 (9th Cir. 1966).
Defendant urges that this motion for summary judgment be granted because of plaintiff's failure to join the Supreme Court. However, the Third Circuit has ruled that summary judgment is inappropriate in this instance. If a district court is unable to rationally proceed because of the lack of an indispensable party, an order of dismissal, rather than summary judgment, should be entered as summary judgment goes to the merits operating in bar of the cause of action, not in abatement. Martucci v. Mayer, 210 F.2d 259, 260 (3d Cir. 1954); Brodsky v. Perth Amboy National Bank, 259 F.2d 705 (3rd Cir. 1958).
In ruling on a motion for summary judgment, this court's function is two-fold. First, this court must determine whether there is a genuine issue as to any material issue of fact. In the instant litigation, there is no factual dispute. This court's second function is to determine whether, in the absence of a genuine issue of fact, the movant is entitled to judgment as a matter of substantive law. See generally Taylor v. Rederi A/S Volo, 374 F.2d 545 (3d Cir. 1967); Admiral Corp. v. Cerullo Elec. Supply Cp., 32 F.R.D. 379 (M.D.Pa. 1961).
In his motion for summary judgment, the plaintiff has urged that this Court can ". . . interpret Rule 9A (2) in a normal and natural way to include plaintiff and therefore order defendants to approve plaintiff's application." [Plaintiff's Memorandum at 11]. However, as the state appellate court's interpretation of a state statute or rule is conclusive and binding on the federal courts, this Court must accept the ruling of the highest state court as to the appropriate interpretation of the rule. Commonwealth of Pennsylvania v. Brown, 373 F.2d 771, 3rd Cir., on remand 270 F. Supp. 782, D.C.Pa., aff'd 392 F.2d 120, 25 A.L.R.3d 724, cert. denied, 391 U.S. 921, 88 S. Ct. 1811, 20 L. Ed. 2d 657 (1967); U.S. ex rel. Gallagher v. Rundle, 273 F. Supp. 438, 441 (E.D.Pa. 1967). The Supreme Court of Pennsylvania's denials of Mr. Ricci's appeals provide clear evidence that in the eyes of the highest state court, the State Board of Law Examiners correctly found that plaintiff did not meet the qualifications of Rule 9A(2).
The plaintiff contends that the ruling of the Alaska Supreme Court in the case Application of Brewer, 506 P.2d 676 (1973) is decisive and should be followed by this Court. In Brewer, the Alaska Supreme Court ruled that the Alaska requirement that an applicant for admission to the state bar have practiced law outside of Alaska for five years prior to admission into the Alaska bar bore ". . . no rational connection with his fitness to practice law in Alaska." 506 P.2d at 679. Essentially, the plaintiff suggests that the Alaska state court's reading of their statute is more rational than the reading which the defendants have adopted; and that therefore this court should construe Rule 9A(2) in the same fashion -- namely, to hold that the rule can be read so as to include Mr. Ricci.
Plaintiff's reliance on Brewer in this litigation is misplaced. It may be that if plaintiff had brought this suit in the state courts, ultimately the State Supreme Court would see fit to interpret the rule as plaintiff has requested. However, the federal District Court must accept as binding the Supreme Court of Pennsylvania's interpretation of the rule.
What must now be determined by this court is whether Rule 9A(2) as interpreted by the Supreme Court of Pennsylvania and the State Board of Law Examiners to exclude Mr. Ricci violates rights granted him by the federal Constitution. Plaintiff contends that Rule 9A(2) has been interpreted so as to deny him the privileges and immunities of citizenship because Rule 9A(2) ". . . is discriminatory by Pennsylvania against its own citizens in favor of non-citizens." [Plaintiff's Memorandum at 12-13]. However, the purpose of the Privileges and Immunities Clause of Article IV, Section 2 of the U.S. Constitution is to prevent a state from discriminating against citizens of other states in favor of its own. Hague v. C.I.O., 307 U.S. 496, 511, 59 S. Ct. 954, 962, 83 L. Ed. 1423 (1930). As the Fourth Circuit held in sustaining the constitutionality of a rule of the South Carolina Supreme Court which exempted from the bar examination only those attorneys admitted to practice in states granting reciprocity to South Carolina attorneys:
So long, then, as the State does not subject the migrant attorney, seeking the right to practice in the State, to no [sic] more onerous requirements than those imposed on its own citizens seeking such right, it cannot be said that the State has violated the section. The obligation, from compliance with which the plaintiff seeks by this action to be excused, is exactly the same obligation imposed indiscriminately by the State . . . upon its own citizens in the same position as the plaintiff.