Appeal of Murphy

393 A.2d 369, 482 Pa. 43, 1978 Pa. LEXIS 985

• Court: Supreme Court of Pennsylvania
• Decided: October 5, 1978
• Docket: 8, 44
• Status: Published

Opinions

OPINION OF THE COURT

PER CURIAM.

For many years this Court, exercising its inherent right to determine the conditions of admission to the bar of this state,¹ has insisted on two complementary requirements: one, that an applicant for admission be a graduate both of an accredited college and of an accredited law school; and two, that the applicant take and pass the bar examination administered by the Pennsylvania State Board of Law Examiners (an arm of this Court). These two requirements have been insisted upon because of the belief that neither alone was sufficient. The learning process of attending a law school was felt to need the capstone of an examination administered under the supervision of the admitting authority,² and the examination in turn was felt to need the underpinning of a competent legal education.

For many years the rule of our Court relating to the legal education requirement said only that the institution should be “approved”; in practice, the Court looked to and relied upon the American Bar Association’s accreditation list as its guide in determining whether that requirement had been met. In 1971 this practice was made explicit, the rule stating that to qualify for the bar examination an applicant “shall have completed the study of law in a law school accredited by the American Bar Association.” 441 Pa. xxx.³

In 1977 the Pennsylvania bar admission rules were revised generally, and the former rule specifying accreditation was incorporated into Rule 203 of the new Pennsylvania Bar Admission Rules, 471 Pa. lxxix. To the adoption of these new rules a dissenting opinion was filed by our brother MANDERINO. Ibid, at xcv.

We now have before us two appeals⁴ from actions by the Board of Law Examiners based on the accreditation requirement. One appeal, by Edward M. Murphy, II, is from the refusal of the Board to allow him to sit for the bar examination.⁵ The other, by Thomas Sylvester Acker, is from the refusal of the Board to certify the applicant’s eligibility to be admitted on motion under the rule of comity which recognizes five or more years of practice in a reciprocating sister state, and a certificate of good standing by the supreme court of that state, as sufficient to warrant admission to the bar of this Court without examination. The point in common in the two cases is that in Pennsylvania both admission to the bar examination and admission to the bar “on motion” under the comity rule are premised upon the applicant possessing a law degree from an approved law school. Murphy graduated from Western State University College of Law of Orange County, Fullerton, California⁶; Acker graduated in 1955 from Youngstown State University School of Law, Youngstown, Ohio.⁷ Neither institution is accredited under our rules because neither has received ABA accreditation and it was for this reason that the Board took the action it did in each case. We affirm the decisions of the Board.

The dissenters apparently do not quarrel with the philosophy that a good legal education, not merely passing a state administered bar examination, is a reasonable and beneficial condition for admission to the bar. The disagreement seems to be with the selection of the American Bar Association as the accrediting agency; more precisely, with what is seen to be an unconstitutional delegation of judicial authority to a non-governmental body such as the ABA.⁸ Mr. Justice MANDERINO finds basic flaw in the absence of any standards to guide the ABA in its delegated functions.⁹ He would therefore permit graduates of an unapproved school to seek admission in this state, “either individually or by their schools.” In our view, this argument is misplaced.

In the first place, this Court has not “delegated” any judicial function to the ABA. The admission of a person to practice law in this state is and always has been a judicial function, exercised now exclusively by the Supreme Court, with the aid of the State Board of Law Examiners. As explained at the outset, we have chosen to make a legal education one of the pre-conditions of seeking admission to our bar whether through the taking of the bar examination or recognition of the five-year practice equivalent in a reciprocating sister state. We could have decided to determine the adequacy of the legal education of an applicant through our own investigative machinery. Even Mr. Justice MANDERINO, however, recognizes that this would be “very impractical.” ¹⁰ 471 Pa. at xcvii. Instead, Pennsylvania, like every other state in the union, has chosen to avail itself of the results of the ABA accreditation procedure, and accepts and adopts the ABA listing.¹¹

The ABA’s long-standing concern with the quality of legal education in the United States needs no documentation here.¹² This concern is expressed primarily through the Association’s Section of Legal Education and Admission to the Bar,¹³ and it is the Council of this Section which has operating responsibility for the Association’s program of accreditation. A law school is approved by the ABA upon application of the school and after a finding that it offers a sound program of legal education that complies with the ABA’s Standards for the Approval of Law Schools.¹⁴ Approval is by action of the House of Delegates of the Association.¹⁵

In the second place, the acceptance of the American Bar Association’s findings is in no way arbitrary or capricious. That Association is recognized by the United States Commissioner of Education, Department of Health, Education and Welfare, as a “nationally recognized accrediting agency.” It is also so recognized by the National Commission on Accrediting. Similarly the Association of American Law Schools, membership in which, as defined in that Association’s by-laws, is itself recognized as an important accrediting accomplishment, acknowledges that for a law school’s degree to be accepted nation-wide as satisfying the requirements of the bar admission authorities, ABA approval is essential.¹⁶

With this kind of acceptance by qualified officials and organizations, it seems wide of the mark indeed to inveigh against the ABA approval process because there are no standards to guide it. See dissenting opinion of Mr. Justice MANDERINO to the adoption of the Bar Admission Rules, 471 Pa. xcv at xcvii (1977), quoted in his Murphy dissent, infra, 393 A.2d at 376. Mr. Justice MANDERINO overlooks that the ABA has itself developed and adopted standards and rules of procedure and that these are printed and distributed widely to law schools, universities, libraries, boards of bar examiners, professional groups and others concerned with legal education.¹⁷ Our adoption of the results of the ABA accreditation process carries with it an endorsement of the standards which the ABA has promulgated for the guidance of itself and the institutions and students involved.¹⁸

While no reason is given in the dissenting opinion for this Court to extend recognition to a law school not approved by the ABA, the idea that we should be open to so doing is implicit therein. Some states do indeed recognize schools not approved by the ABA, but invariably, with one exception known to us, this is with reference to schools located in the particular state.¹⁹ Pennsylvania is in the fortunate position of having each of the six schools situated within its borders²⁰ fully approved by the ABA, so there is no temptation to relax standards in deference to local pressures. The exception noted above is the State of Indiana. The Supreme Court of that state now recognizes a law degree earned from a law school which is approved by the state in which the school is located, whether or not the school was ABA approved. With all respect to the action of our sister state, this seems to us to be carrying the concept of full faith and credit to an unjustified extreme, for the net effect is to permit a jurisdiction having the lowest educational criteria determine who may sit for the bar examination in Indiana. We are unable to perceive how this policy serves the public interest.

If we were to consider expanding the privilege of taking the bar examination (or being admitted on motion as an attorney from another state), and were to do so on a more informed approach than that employed in Indiana, the question immediately arises as to what criteria and procedures we should employ in making such a determination. Without written criteria to be met by the schools involved and without an established system of inspection and evaluation, plus periodic reevaluation, the approval would be on an ad hoc basis, without any of the standards which all agree are essential. With such an established system for Pennsylvania, it would seem that we would merely be duplicating the ABA program, unless, of course, we wished to make the standards either more stringent or less stringent than the ABA standards.²¹ No one has advanced to us any argument that either variant is presently necessary or desirable. At this time, therefore, we see no virtue either in allowing a school unapproved by the ABA to seek independent recognition from Pennsylvania, or in permitting a bar examination applicant to attempt to prove to this Court that his unapproved school does in fact measure up to ABA standards.

Our holding today is in accord with longstanding and unanimous authority which has rejected the non-delegation argument here advanced as well as a host of other constitutional attacks on the requirement that an applicant for admission to the bar be a graduate of an ABA-approved law school. See, e. g., Potter v. New Jersey Supreme Court, 403 F.Supp. 1036 (D.N.J.1975), aff’d, 546 F.2d 418 (3d Cir. 1976); Rossiter v. Colorado State Board of Law Examiners, No. C-4767 (D.Colo., filed August 26, 1975) (three-judge court); Lombardi v. Tauro, 470 F.2d 798 (1st Cir. 1972) (no unlawful delegation); Kadans v. Collins, 441 F.2d 657 (9th Cir. 1971), appeal dismissed, 404 U.S. 1007, 92 S.Ct. 672, 30 L.Ed.2d 656 (1972); Hackin v. Lockwood, 361 F.2d 499 (9th Cir. 1966), cert. denied, 385 U.S. 960, 87 S.Ct. 396, 17 L.Ed.2d 305 (1967); In re Lorring, 75 Nev. 330, 340 P.2d 589 (1959); Rosenthal v. State Bar Examining Committee, 116 Conn. 409, 165 A. 211 (1933).

The orders of the Pennsylvania Board of Law Examiners are affirmed.

MANDERINO, J., filed a dissenting opinion in which LARSEN, J., joins. NIX, J., did not participate in the decision of the appeal at No. 44, Application of Thomas Sylvester Acker.

1 . See Art. V, Sec. 10(c) of the Constitution of Pennsylvania.

2 . The so-called “diploma privilege” is recognized in only five states— Mississippi, Montana, South Dakota, West Virginia and Wisconsin. In those jurisdictions a written examination for applicants with a degree from a recognized law school located within the state is dispensed with.

In 1971 the Council of the Section of Legal Education and Admissions to the Bar of the American Bar Association and the Board of Managers of the National Conference of Bar Examiners joined in a statement “concerning the propriety of examination by public authority before admission to practice.” In this statement the view, first expressed in 1921 by the American Bar Association, was reaffirmed that there should be examination by public authority as a condition to permission to practice law.

3 . Because the ABA did not undertake to evaluate law schools situated outside of the United States, and because this Court was receiving applications from graduates of foreign law schools, our rule was amended in 1976 to allow a person to sit for the bar examination if he or she “shall have acquired a legal education which in the opinion of the State Board is the equivalent” of the education received in an ABA approved school. This provision was not intended to apply to schools located within the geographical area encompassed by the accreditation activities of the ABA. The current form of the rule is to be found in Pa.B.A.R. 203(2) and 205. 471 Pa. lxxix.

4 . Under Pa.B.A.R. 222, effective in October, 1977, an aggrieved applicant should now petition this Court for judicial review of the determination of the Board. The present parties have used the prior terminology of “appeal”, which we have treated as substantial compliance with the rule.

5 . This is Mr. Murphy’s second appearance before this Court. He previously applied to the Board for permission to sit for the February 1977 bar examination, on a record identical to the one presented here, and his application was denied. He appealed from that denial to this Court, and his petition was denied by this Court on December 23, 1977, Mr. Justice MANDERINO dissenting. No. 317 Misc. Docket No. 21 (1977). Murphy then brought an action in the United States District Court for the Eastern District of Pennsylvania, alleging that this Court’s requirements, noted above, denied him equal protection of the laws. The action was dismissed on March 29, 1977, for failure to state a claim on which relief can be granted, and no appeal was taken. Murphy v. State Board of Law Examiners, 429 F.Supp. 16 (E.D.Pa.1977).

6 . Murphy transferred to Western State from Armstrong College of Law, Berkeley, California. Armstrong also is a non-accredited institution.

7 . This institution was at one time (apparently during the 1950s) approved by the League of Ohio Law Schools and on this basis its graduates were for a time accepted for admission to the bar by the Supreme Court of Ohio. The ABA has not been requested to inspect the school since 1956, and the Pennsylvania Board of Law Examiners has been informed that the school is out of existence.

8 . The dissenting opinion does not find fault with our long-established requirement that an applicant shall have received an undergraduate degree from an accredited college or university. See Pa.B.A.R. 203(1). The rule does not specify the accrediting agency, but this Court has always accepted the accreditation of the recognized regional college and university associations which act in this regard.

9 . Mr. Justice MANDERINO, in his dissenting opinion, speaks also of the “glaringly apparent” inequity of the Rule requiring accreditation. The nature of the inequity is not spelled out, presumably because it is “apparent.” It is unclear to us, however, wherein this inequity lies. It surely cannot be found in the fact that, as appellant alleges, the California Committee of Bar Examiners has seen fit to accredit Murphy’s school within California, and that this has been accepted as sufficient by several other California state groups, other proprietary law schools and certain federal departments.

10 . In 1975 the chairman and a member of the Pennsylvania State Board of Law Examiners accompanied the accreditation committee of the ABA on its three day inspection of a law school, several of whose students had theretofore been denied permission to take the Pennsylvania Bar examination, and which had applied for accreditation. The Chairman, Desmond J. McTighe, Esq., reported that this “experience convinced us that we could not possibly discharge the burden of accrediting any particular law school, and that this was a professional job which had to be entrusted to an impartial inspection committee of law school Professors and Deans.” (It should be added that the inspection teams include qualified and experienced practitioners and judges as well as legal educators.) Letter dated April 26, 1978 from Desmond J. McTighe, Esq. to Justice Thomas W. Pomeroy, Jr., a member of this Court.

11 . We are informed that there are minor modifications in a few states. Thus New York requires an applicant to have been in resident study as a full-time student for at least 96 weeks, as opposed to the .tJBA’s 90 weeks; the Indiana Supreme Court specifies about two-thirds of an applicant’s law school curriculum, more than does the ABA; North Carolina, so we are informed, does not automatically accept a school as approved in that state immediately upon its receipt of ABA accreditation.

12 . See Harno, Legal Education in the United States (1953); Sullivan, The Professional Association and Legal Education, 4 Journal of Legal Education 401 (1952).

13 . The objective of improvement of prelegal and legal education is stated in Article I, Sec. 3 of the By-laws of the section as follows:

“The purposes of the Section shall be to consider, discuss, recommend to the Association, and effectuate measures for the improvement of the systems of prelegal and legal education in the United States; methods for inculcating in law students the sincere regard for the ethics and morals of the profession necessary to its high calling; and means for the establishment and maintenance in the several states of adequate and proper standards of general education, legal training, and moral character of applicants for admission to the Bar, including the manner of testing their qualifications.”

14 . The ABA Standards specify, in brief, that a law school’s program must require at least 80 semester hours of work completed in not less than 90 weeks by a full-time student and 120 weeks by a part-time student, thus assuring a minimum “quantity” of legal education. Quality of schools is measured by a number of factors, such as admissions policies, number and qualifications of full-time faculty, size of book collection, study spaces and other aspects of physical plant and on-the-scene observation of teaching and other faculty activities. Approval is granted to law schools without regard to whether they are state related, parts of a private university, or proprietary in nature.

15 . The House of Delegates granted provisional approval to four law schools at its meeting in February, 1978: Whittier College, School of Law, Los Angeles, California; Lewis University College of Law, Glen Ellyn, Illinois; Pace University School of Law, White Plains, New York; Yeshiva University, Benjamin N. Cardozo School of Law, New York, New York.

16 . Source: Professor Millard H. Ruud, Executive Director of the Association of American Law Schools, Washington, D. C.

17 . See the pamphlet “Approval of Law Schools — American Bar Association Standards and Rules of Procedure,” as amended, 1977. The ABA also compiles and issues a summary of the interpretations which have been rendered relative to the ABA Standards. See ABA Memorandum 7778-27 dated February 1, 1978 sent to Deans of ABA approved law schools.

18 . In the early 1970’s the Pennsylvania Board of Law Examiners carefully reviewed the ABA accreditation system and “concluded that their standards and procedures appeared fair and thorough and that we could [continue to] rely upon them.” Letter from Desmond J. McTighe, Esq., supra note 10.

19 . Certain law schools in Alabama, Georgia, Mississippi and Tennessee do not have ABA approval but their graduates are permitted to take the bar examination in the respective states.

20 . Dickinson School of Law, Temple University School of Law, University of Pennsylvania Law School, Duquesne University School of Law, University of Pittsburgh School of Law, and Villanova University School of Law. A seventh school, Delaware Law School, is now also considered a Pennsylvania law school. Although physically located in Wilmington, Delaware, the school is now an integral part of Widener College, situated in Chester, Delaware County, Pennsylvania. The Delaware Law School has been ABA accredited since 1975.

21 . Because of the number of law schools located in California that state presents a special situation. There are fifty-seven (57) law schools in the state, some fifteen (15) of which have received ABA approval; forty-two (42) have not been so approved. See American Bar Association Section of Legal Education and Admissions to the Bar, A Review of Legal Education in the United States — Fall 1977 (1978). California has developed a system for accrediting those schools in the latter group which meet the lesser requirements set by the California Committee of Law Examiners. Graduates of those schools may sit for the bar examination like graduates of the ABA approved schools. We understand that there are presently eight (8) such institutions. As to the remainder, possessing no accreditation status, students must pass a state-administered first year law examination and successfully complete two years of full-time or three years of part-time study in order to be allowed to sit for the California bar examination.