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Ricci v. State Board of Law Examiners

filed: January 26, 1978.

RICCI, ALEXANDER D., APPELLANT
v.
STATE BOARD OF LAW EXAMINERS, ET AL.; DESMOND MCTIGHE; ABRAHAM H. LIPEZ; JUSTIN M. JOHNSON; JOHN W. ENGLISH, SR.; ANTHONY S. MINISI



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 75-2653).

Seitz, Chief Judge, Garth, Circuit Judge, and Brotman, District Judge.*fn*

Author: Per Curiam

Plaintiff was admitted to the practice of law before the United States Court of Appeals for the District of Columbia on September 9, 1965, after having passed the District's bar examination. He both resided and actively practiced law in the District from September 1965 until March 1968 when he moved to Pennsylvania where he has since been employed as a full time attorney with Betz Laboratories, Inc. of Trevose, Pennsylvania. However, he has continued to practice "District of Columbia law" before several federal agencies from his Trevose office and has been physically within the District approximately 30 working days per year since 1968.

Plaintiff applied for admission to the bar of the Supreme Court of Pennsylvania under Rule 9 of the Pennsylvania Supreme Court. The relevant portion of Rule 9A(2) provides as follows:*fn1

"A. An attorney of the highest court of another state having jurisdiction over the admission to practice of attorneys at law (the term 'state' includes territories and the District of Columbia) . . . may, in the discretion of the State Board, be recommended for admission to the bar of this court without bar examination, if he files his Petition with the State Board and presents:

"2. proof satisfactory to the State Board that he practiced law outside of Pennsylvania for at least five years. . . ."

Plaintiff's application was denied by the State Board of Law Examiners (State Board) on September 5, 1972. The Supreme Court of Pennsylvania denied plaintiff's appeal under Rule 14B*fn2 on January 8, 1973 and his motion for reconsideration on February 20, 1973. A second application by plaintiff was denied by the State Board on March 14, 1975 and the Pennsylvania Supreme Court again denied his appeal on July 5, 1975.

Plaintiff filed an action in the district court praying for: (1) the convening of a three judge district court; (2) a declaratory judgment that Rule 9A(2) of the Rules of the Supreme Court of Pennsylvania violates the due process and equal protection provisions of the Fourteenth Amendment of the Constitution as well as the Full Faith and Credit Clause and (3) an order that the State Board apply Rule 9A(2) to plaintiff in the same manner as such rule has been applied to members of the bars of other states residing in states other than Pennsylvania.

The district court declined to convene a three-judge court; granted summary judgment in favor of the State Board; denied plaintiff's motion for summary judgment; and ruled that, absent the order granting the State Board summary judgment, the cause would have been dismissable because the Supreme Court of Pennsylvania rather than the State Board would be the needed defendant in the action.

It is agreed that plaintiff is qualified for admission to the Pennsylvania Bar under Rule 9 except for the State Board's ruling that he has not practiced law outside of Pennsylvania for the requisite five years.

Since the three judge court statute was viable at the time the complaint was filed, we first consider whether the district court committed error in not requesting that a three judge court be convened.

It is perfectly clear that insofar as the complaint seeks a judgment declaring that Rule 9A(2) violates the designated Constitutional provisions, it is not a proper subject matter for convening a three judge court. The three judge court statute applies only to requests for injunctive relief: United States ex rel. Souder v. Watson, 413 F. Supp. 711, 714 (M.D. Pa. 1976).

Plaintiff does in effect seek an injunction under his prayer for an order directing the State Board to construe Rule 9 so as to include him. However, it is not the function of a federal court to interpret a state court rule contrary to the interpretation placed on it by the state's highest court. See O'Brien v. Skinner, 414 U.S. 524, 531, 38 L. Ed. 2d 702, 94 S. Ct. 740 (1974). To the extent the complaint seeks such relief, we conclude that it does not warrant the convening of a three judge court.

We therefore conclude that the district court did not err in refusing to request the convening of ...


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