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SHAPIRO v. COOKE

October 27, 1982

Philip S. SHAPIRO, Plaintiff,
v.
Chief Judge Lawrence H. COOKE and Associate Judges Matthew J. Jasen, Domenick L. Gabrielli, Hugh R. Jones, Sol Wachtler, Jacob D. Fuchsberg and Bernard S. Meyer as the Court of Appeals of the State of New York, Defendants


Miner, District Judge.


The opinion of the court was delivered by: MINER

MEMORANDUM -- DECISION and ORDER

MINER, District Judge.

 I

 This is an action pursuant to 42 U.S.C. § 1983, challenging the constitutionality of 22 NYCRR § 520.9(a), which sets forth the standards for admission to the New York State bar without examination. Specifically, plaintiff disputes the rule's requirement for five years of experience in lieu of successful completion of the bar examination, insofar as it fails to credit as "actual practice" the time spent in the performance of legal services by New York State employees admitted to the bars of other states. Plaintiff claims that § 520.9(a) denies him rights secured under the Equal Protection Clause, U.S. Const. amend. XIV, § 1, and the Privileges and Immunities Clause, U.S. Const. article IV, § 2 and discriminates against interstate commerce, U.S. Const. article I, § 8, cl. 3. Jurisdiction is conferred upon this Court by 28 U.S.C. §§ 1331 and 1343. Before this Court are plaintiff's motion for summary judgment and defendants' cross-motion for summary judgment. Fed.R. Civ.P. 56.

 II

 Part 520 of Title 22 of the NYCRR sets forth the rules which have been promulgated by the New York Court of Appeals for admission of attorneys to practice law in this state, as authorized under New York Judiciary Law § 53. Under these regulations and New York Judiciary Law § 90, the function of examining and admitting candidates for the bar is performed primarily by the New York State Board of Law Examiners and the New York Supreme Court Appellate Divisions. However, the Court of Appeals retains two functions under Part 520. Under 22 NYCRR § 520.12, the Court of Appeals may "vary the application or waive any provision of these rules where strict compliance will cause undue hardship on the applicant," and, correspondingly, under § 520.9(a)(2)(i)(d), the court may certify that a combination or cumulation of service satisfies the requirement of five years of experience for admission without examination. With the exception set forth in § 520.9(a)(2)(i)(d), the Appellate Division determines all applications for admission without examination. *fn1"

 The facts here are uncontroverted. On March 8, 1982 plaintiff applied to the New York Court of Appeals for a determination that his combined or cumulative legal experience qualified him for admission to the New York bar without examination, pursuant to 22 NYCRR § 520.9. In his petition, plaintiff represented that he had been a domiciliary of the State of New York since 1980, that he was admitted to the bar in the State of Maryland on December 30, 1976, that he had practiced law in that state from December, 1976 to January, 1980, and that, since January 14, 1980, plaintiff had served as an Intervenor Attorney for the New York State Consumer Protection Board. Plaintiff applied to the Court of Appeals, pursuant to § 520.9(a)(2)(i)(d), for a determination that his three years of actual practice in Maryland, combined with his two years and two months of experience as an Intervenor Attorney, was the equivalent of five years of "actual practice" at the bar of the jurisdiction where he was admitted. By letter dated March 23, 1982, the Clerk of the Court of Appeals informed plaintiff that his application was denied on the ground that "employment in New York State by the Consumer Protection Board as an Intervenor Attorney is not actual practice in the contemplation of Rule 520.9(a)(2)(i)(a)."

 On April 7, 1982, plaintiff petitioned for reargument or reconsideration of the court's determination. In the plaintiff's second petition, plaintiff represented that he had performed substantially the same functions in Maryland as an "Assistant People's Counsel" as he was performing in New York as an Intervenor Attorney. The plaintiff contended that on July 12, 1979 and in February, 1982, the court had permitted the admission of attorneys who possessed less than five years actual practice in their states of admission, but possessed additional experience in New York as administrative hearing officers for the Public Service Commission. The plaintiff represented that he had been recruited for employment with the New York State Consumer Protection Board, and that his decision to accept employment was influenced by his knowledge of the court's determination of July 12, 1979. The Court of Appeals rejected these arguments and denied plaintiff's second petition by letter dated April 20, 1982.

 Plaintiff did not seek judicial review of the Court of Appeals' administrative determination in the state courts. However, on May 21, 1982, plaintiff initiated this action pursuant to 42 U.S.C. § 1983, seeking declaratory and injunctive relief striking down § 520.9(a) as repugnant to the Commerce Clause, Privileges and Immunities Clause, and Equal Protection Clause of the United States Constitution, insofar as it applies to attorney-employees of New York State who are admitted to practice in other states. In addition to this § 1983 action, plaintiff has applied to the United States Supreme Court for review of the Court of Appeals' determination of his individual application by way of writ of certiorari pursuant to 28 U.S.C. § 1257. *fn2"

 III

 As a threshold matter, defendants argue that this Court should decline to exercise jurisdiction over the plaintiff's claims, so that a state court of competent jurisdiction might have an opportunity to construe § 520.9. Defendants contend that, in passing upon the plaintiff's application pursuant to § 520.9, the Court of Appeals acted in an administrative, not judicial, capacity. The court's power to regulate the admission of attorneys to the New York bar was delegated to it by the Legislature pursuant to New York Judiciary Law § 53, and does not arise under the court's judicial power, conferred under New York Constitution article VI, § 3.

 This administrative determination, defendants maintain, was subject to review in the state courts under Article 78 of the New York Civil Practice Law and Rules, which provides for judicial review of a determination made by any governmental body or officer. Defendants further maintain that plaintiff could have challenged the Court of Appeals' administrative determination by way of a state declaratory judgment action *fn3" or a state court review of the rules governing admission to practice. Therefore, defendants argue, since constitutional issues at bar rest upon an unsettled interpretation of state law, and since federal court construction here of rights defined under a complex state regulatory scheme would interfere with state efforts to establish coherent policy in a matter of substantial state concern, abstention in this case is warranted and plaintiff should seek state court review of the administrative determination at issue here. *fn4"

 This Court rejects defendants' abstention contentions. Abstention is a court created doctrine first articulated in 1941 in Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). Although the doctrine has expanded in several different forms since Pullman, it is still broadly defined as a doctrine "under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, [and it] is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it." Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 813, 96 S. Ct. 1236, 1244, 47 L. Ed. 2d 483 (1976), quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S. Ct. 1060, 1062-63, 3 L. Ed. 2d 1163 (1959).

 The Supreme Court has confined the circumstances appropriate for abstention to three categories, none appropriate for the present case. Colorado River Water Cons. Dist. v. United States, supra, 424 U.S. at 814-17, 96 S. Ct. at 1244-46. First, "abstention is appropriate 'in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law.'" Id. at 814, 96 S. Ct. at 1244. See, e.g., Lake Carriers Ass'n. v. MacMullen, 406 U.S. 498, 92 S. Ct. 1749, 32 L. Ed. 2d 257 (1972). However, in the present case there are no ambiguities in § 520.9 for state courts to resolve, and "absent issues of state law that might affect the posture of the federal constitutional claims -- this Court has uniformly held that individuals seeking relief under 42 U.S.C. § 1983 need not present their federal constitutional claims in state court before coming to a federal forum." Zablocki v. Redhail, 434 U.S. 374, 380 n. 5, 98 S. Ct. 673, 678 n. 5, 54 L. Ed. 2d 618 (1978). See, e.g., Patsy v. Florida Bd. of Regents, 457 U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982). Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. ...


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