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KORUP v. FLAHERTY

October 27, 1981

Niels KORUP
v.
John P. FLAHERTY, Bruce W. Kauffman, Rolf Larsen, Robert N. C. Nix, Jr., Henry X. O'Brien, Samuel J. Roberts, Roy Wilkinson, Jr.



The opinion of the court was delivered by: LUONGO

MEMORANDUM

Niels Korup, the plaintiff in this civil rights action, was denied permission to sit for the February 1981 Pennsylvania bar examination because he failed to meet certain admission requirements established by, or under the authority of, the Pennsylvania Supreme Court (the Court). The defendants, sued individually and in their judicial capacity, are the Justices of the Court. Although it is not entirely clear from his complaint, Korup essentially alleges that the admission requirements in question, as adopted and as applied, violate his rights under the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. Korup seeks relief in the form of an order of this court requiring the defendants to admit him to the practice of law or permit him to sit for the next Pennsylvania bar examination. Plaintiff alleges that this court has jurisdiction under 28 U.S.C. §§ 1331 and 1343 for violations of 42 U.S.C. § 1983, and the Fourteenth Amendment to the United States Constitution.

 The defendants have moved to dismiss on the grounds that (a) this court lacks subject matter jurisdiction, (b) the action is barred by the doctrine of res judicata or collateral estoppel, (c) the plaintiff has failed to state a claim upon which relief can be granted, and (d) this court lacks the authority to grant the relief requested.

 BACKGROUND

 The plaintiff is a law school graduate of the University of Copenhagen and is admitted to the practice of law in Denmark. In 1976, he received an L.L.M. from the University of California at Berkeley, and the following year completed an additional 14 credits during post graduate study at Harvard Law School. Aggregating the number of credit hours Korup had completed at Berkeley with those completed at Harvard, Korup had accumulated 44 credit hours at institutions fully accredited by the American Bar Association. On the basis of these credentials, *fn1" Korup applied in September 1980 to the Pennsylvania Board of Law Examiners (the Board) for permission to sit for the Pennsylvania bar examination.

 
Rule 205. Admission of Foreign Attorneys
 
The Board, under such standards, rules and procedures as it may prescribe, may extend the provisions of Rule 203 (relating to the admission of graduates of accredited institutions) to any applicant who has completed the study of law in a law school which at the time of such completion was not located within the geographical area encompassed by the accreditation activities of the American Bar Association and who has been admitted to practice law in and is in good standing at the bar of a foreign country, as evidenced by a certificate from the highest court or agency of such foreign country having jurisdiction over admission to the bar and the practice of law.

 In order to effectuate the rule, the Board had adopted, several years prior to Korup's application, the following resolution:

 
Upon MOTION, duly made and seconded, it was resolved that foreign attorneys may apply to sit for the Pennsylvania Bar Examination provided they have successfully completed the study of law in an accredited American law school for 24 credit hours with a minimum of 16 credit hours in any of the following subjects: Criminal Law, Real Property, Contracts, Torts, Evidence, Constitutional Law, Corporations and Decedents' Estates.

 The Board applied these criteria to Korup's application and found that his course work at Harvard and Berkeley exceeded the 24 credit-hour requirement, but that he had accumulated only 11 credit hours in the subjects specified in the resolution. Accordingly, the Board denied his application to sit for the bar examination. Korup timely petitioned the Court for review of the Board's determination. See Pa. B.A.R. 222 and Pa.R.App.P. 1501 et seq. While his petition for review was pending, Korup also filed with the Court a motion for summary relief, Pa.R.App.P. 1532(b), or, in the alternative, for expedited oral argument. This motion and the petition for review were denied by the Court without opinion on June 19, 1981.

 Korup did not seek review of the Pennsylvania Supreme Court's ruling in the United States Supreme Court, but, instead, filed the present action in this court. Count I of Korup's complaint alleges that his right to due process has been violated by the adoption and application of admission requirements which create an irrebuttable presumption that he is unqualified to practice law. Count II alleges that the defendants' practice of occasionally granting waivers of the A.B.A. accreditation requirement to graduates of domestic, but not to graduates of foreign law schools violates his right to equal protection under the law.

 DEFENDANTS' MOTION

 The defendants initially contend that this action must be dismissed for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). I disagree. Plaintiff's complaint pleads facts sufficient to support the jurisdiction of this court under 28 U.S.C. §§ 1331 and 1343. Defendants do not dispute this. Rather, their argument is based on the principle that federal district court jurisdiction under those two sections is entirely original, and that plaintiff is really seeking review of the action of the Supreme Court of Pennsylvania under the guise of a civil rights suit. In support of their position, they point to several federal courts of appeals' decisions which, in dismissing suits similar to plaintiff's, held that federal district courts do not have jurisdiction to review orders ...


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