DECISION
PER CURIAM.
Plaintiff Potts, a citizen of the United States, was neither a qualified and registered voter in the State of Hawaii nor had he “physically, resided in Hawaii continuously for a period of six months after attaining the age of 15 years” prior to September 13, 1971, when the Hawaii bar examination was scheduled to be given to those seeking to be licensed to practice law in the State of Hawaii. Nevertheless, over 60 days before that date he filed application to take the examination. There was no question that he met all prerequisites for eligibility to take the examination,
except the residence qualification set
forth in 7 H.R.S. § 605-1
or Rule 15(e) of the Rules of the Supreme Court of the State of Hawaii.
The Supreme Court of Hawaii refused him permission to take the examination, without stating any reason therefor.
Plaintiff, thereafter, on August 10, 1971, brought this class action under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 against the Justices of the Supreme Court of the State of Hawaii. The Attorney General of Hawaii has agreed to the joinder of the State itself as a proper party defendant because of the implication of 7 H.R.S. § 605-1, as well as because the rules of the Supreme Court
here involved have the force and effect of law.
The complaint asks for a declaratory judgment that both the statute and rule are unconstitutional, and for an injunction against enforcement of the rule and statute as to plaintiff and all persons both now and hereafter in a class with him. The district judge granted a temporary restraining order enabling plaintiff to take the Fall 1971 examination. Although notification of the class action was duly issued, no other member of the class applied for leave to take that examination.
After answer by the defendants and a hearing, a three-judge federal district court was convened under 28 U.S.C. § 2281, because the prayer sought injunctive relief against a state statute and an order made by an administrative board or commission acting under a state statute on the ground of their unconstitutionality.
The case has been fully briefed and argued.
Jurisdiction
Defendants urge that this court is without jurisdiction to hear the case. Defendants’ position is that under Theard v. United States, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957), a federal district court may not sit in judgment on any state court orders relating to the admission, discipline and disbarment of members of its bar, and that such orders may be reviewed only by the Supreme Court of the United States on certiorari to the state court.
The same argument was presented to other three-judge courts, viz., Keenan v. Bd. of Law Examiners, 317 F.Supp. 1350 (E.D.N.C.1970); Webster v. Wofford, 321 F.Supp. 1259 (N.D.Ga.1970); Law Students Civil Right's Research Council, Inc. v. Wadmond, 299 F.Supp. 117 (S.D.N.Y.1969), aff’d 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749; and Lipman v. Van Zant, 329 F.Supp. 391, decided August 5, 1971 (D.C.N.Miss.). Each of those courts held that while
Thecurd
controls when questions of bar disciplinary proceedings not involving constitutional questions are concerned, it does not foreclose a three-judge district court from taking jurisdiction over a challenge on constitutional grounds to state bar admission requirements, whether prescribed state statute, or by administrative or court rule.
We agree.
Abstention
Defendants also urge that even if this court has jurisdiction it should abstain from taking jurisdiction because
the “state bar admission requirements fashioned by the highest court of the State goes to the heart of the State court’s business” and “an authoritative account of the considerations underlying * * * Rule 15(c) involves difficult questions of state policy and of fact within the specialized comprehension of the Hawaii Supreme Court * *
This court finds that Rule 15(c) is uncomplicated and fundamentally unambiguous on its face. Beyond the bald assertion itself, no “difficult questions of state policy and of fact” have been disclosed to this court. Moreover, it is more than a little anomalous to require the plaintiff to ask the state court which promulgated the rule under attack to sit in judgment on the constitutionality of its own product.
As the Court said in Cohens v. Virginia, 19 U.S. 264, 404, 5 L.Ed. 257 (1821): “We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given.” Here too, as in Keyishian v. Board of Regents, 385 U.S. 589, 601, n. 9, 87 S.Ct. 675, 682, 17 L.Ed.2d 629 (1967): “This is not a case where abstention pending state court interpretation would be appropriate * * We choose not to abstain.
Equal Protection
Hawaii, like many other states, has long had “citizenship” or residency prerequisites for admission to practice law.
Under the Kingdom’s Civil Code of 1859, only “Hawaiian subjects” could be admitted to practice
and “foreigners” could not become subjects until they “shall have resided within the Kingdom five years or more * *
This concept continued after annexation, a 1921 law making United States citizenship a requirement.
All this was changed by the Hawaii legislature in 1937, which ordained that only those who had “been residents of the Territory for at least one year immediately preceding” the bar examination could be admitted to practice.
In an attempt to exclude “transient” members of the armed forces from being admitted to practice in Hawaii, the requirement that an applicant be “qualified to vote” was introduced in 1945.
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DECISION
PER CURIAM.
Plaintiff Potts, a citizen of the United States, was neither a qualified and registered voter in the State of Hawaii nor had he “physically, resided in Hawaii continuously for a period of six months after attaining the age of 15 years” prior to September 13, 1971, when the Hawaii bar examination was scheduled to be given to those seeking to be licensed to practice law in the State of Hawaii. Nevertheless, over 60 days before that date he filed application to take the examination. There was no question that he met all prerequisites for eligibility to take the examination,
except the residence qualification set
forth in 7 H.R.S. § 605-1
or Rule 15(e) of the Rules of the Supreme Court of the State of Hawaii.
The Supreme Court of Hawaii refused him permission to take the examination, without stating any reason therefor.
Plaintiff, thereafter, on August 10, 1971, brought this class action under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 against the Justices of the Supreme Court of the State of Hawaii. The Attorney General of Hawaii has agreed to the joinder of the State itself as a proper party defendant because of the implication of 7 H.R.S. § 605-1, as well as because the rules of the Supreme Court
here involved have the force and effect of law.
The complaint asks for a declaratory judgment that both the statute and rule are unconstitutional, and for an injunction against enforcement of the rule and statute as to plaintiff and all persons both now and hereafter in a class with him. The district judge granted a temporary restraining order enabling plaintiff to take the Fall 1971 examination. Although notification of the class action was duly issued, no other member of the class applied for leave to take that examination.
After answer by the defendants and a hearing, a three-judge federal district court was convened under 28 U.S.C. § 2281, because the prayer sought injunctive relief against a state statute and an order made by an administrative board or commission acting under a state statute on the ground of their unconstitutionality.
The case has been fully briefed and argued.
Jurisdiction
Defendants urge that this court is without jurisdiction to hear the case. Defendants’ position is that under Theard v. United States, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957), a federal district court may not sit in judgment on any state court orders relating to the admission, discipline and disbarment of members of its bar, and that such orders may be reviewed only by the Supreme Court of the United States on certiorari to the state court.
The same argument was presented to other three-judge courts, viz., Keenan v. Bd. of Law Examiners, 317 F.Supp. 1350 (E.D.N.C.1970); Webster v. Wofford, 321 F.Supp. 1259 (N.D.Ga.1970); Law Students Civil Right's Research Council, Inc. v. Wadmond, 299 F.Supp. 117 (S.D.N.Y.1969), aff’d 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749; and Lipman v. Van Zant, 329 F.Supp. 391, decided August 5, 1971 (D.C.N.Miss.). Each of those courts held that while
Thecurd
controls when questions of bar disciplinary proceedings not involving constitutional questions are concerned, it does not foreclose a three-judge district court from taking jurisdiction over a challenge on constitutional grounds to state bar admission requirements, whether prescribed state statute, or by administrative or court rule.
We agree.
Abstention
Defendants also urge that even if this court has jurisdiction it should abstain from taking jurisdiction because
the “state bar admission requirements fashioned by the highest court of the State goes to the heart of the State court’s business” and “an authoritative account of the considerations underlying * * * Rule 15(c) involves difficult questions of state policy and of fact within the specialized comprehension of the Hawaii Supreme Court * *
This court finds that Rule 15(c) is uncomplicated and fundamentally unambiguous on its face. Beyond the bald assertion itself, no “difficult questions of state policy and of fact” have been disclosed to this court. Moreover, it is more than a little anomalous to require the plaintiff to ask the state court which promulgated the rule under attack to sit in judgment on the constitutionality of its own product.
As the Court said in Cohens v. Virginia, 19 U.S. 264, 404, 5 L.Ed. 257 (1821): “We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given.” Here too, as in Keyishian v. Board of Regents, 385 U.S. 589, 601, n. 9, 87 S.Ct. 675, 682, 17 L.Ed.2d 629 (1967): “This is not a case where abstention pending state court interpretation would be appropriate * * We choose not to abstain.
Equal Protection
Hawaii, like many other states, has long had “citizenship” or residency prerequisites for admission to practice law.
Under the Kingdom’s Civil Code of 1859, only “Hawaiian subjects” could be admitted to practice
and “foreigners” could not become subjects until they “shall have resided within the Kingdom five years or more * *
This concept continued after annexation, a 1921 law making United States citizenship a requirement.
All this was changed by the Hawaii legislature in 1937, which ordained that only those who had “been residents of the Territory for at least one year immediately preceding” the bar examination could be admitted to practice.
In an attempt to exclude “transient” members of the armed forces from being admitted to practice in Hawaii, the requirement that an applicant be “qualified to vote” was introduced in 1945.
In 1949, admission to practice law required that the bar applicant not only be qualified to vote in the Territory but also “actually register as such voter.”
Thus the prerequisite remained until the Hawaii Supreme Court, on February 17, 1970, promulgated its Rule 15(c).
The basic question here is whether the Equal Protection Clause of the Fourteenth Amendment proscribes the application by the Hawaii Supreme Court of the residence qualification of its Rule 15(c) or of H.R.S. § 605-1 to an otherwise qualified applicant desiring to take the Hawaii bar examination.
While neither § 605-1 nor Rule 15(c) discriminates with respect to race, color or nationality, nevertheless both the statute and the rule obviously create two classes of applicants for the Hawaii bar. In one class are those otherwise qualified persons who under § 605-1 are registered voters (with not less than one
year’s residence) or who under Rule 15(c) have been physically present in Hawaii for a continuous six-month period after reaching age 15. This class is entitled to take the bar examination. In the other class are otherwise equally qualified applicants who, solely because they are not registered voters or have not met the physically present requirement, cannot fit into the procrustean bed of either the law or the rule, and are thereby precluded from taking the bar examination.
Under traditional equal protection principles, a state retains broad discretion in many categories to classify persons. Any such classification, for any purpose, must have a reasonable basis.
Thus, if any state of facts reasonably can be conceived that would sustain a challenged classification, even though it were discriminatory, it would not be violative of the Equal Protection Clause of the Fourteenth Amendment.
In the case before us, just as in Truax v. Raich, 239 U.S. 33, 39-40, 36 S.Ct. 7, 10, 60 L.Ed. 131 (1915), “the discrimination defined [by the law or the rule] does not pertain to the regulation or distribution of the public domain, or of the common property or resources of the people of the State, the enjoyment of which may be limited to its citizens as against * * * citizens of other States.”
This court, of course, recognizes that the State of Hawaii and its Supreme Court “have exclusive jurisdiction over the admission of attorneys, the regulation of the practice of law, and the discipline and disbarment of attorneys * * *." Ginger v. Circuit Court for County of Wayne, 372 F.2d 621, 625 (6th Cir. 1967). This court also is reluctant to interfere in matters so peculiarly state-oriented as are requirements to practice law in the state. Nevertheless, as pointed out by the United States Supreme Court in Schware v. Board of Examiners, 353 U.S. 233, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957), while “a State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, * * * any qualification must have a rational connection with the applicant’s fitness or capacity to practice law” to comport with the Fourteenth Amendment. We have the jurisdiction and the obligation to ensure that this constitutional mandate is met.
In attempting to justify its residency qualifications, the defendants maintain, first, that the six months of continued presence “assure [s] that a person with some degree of maturity will be able to absorb, appreciate and understand the unique governmental structure, linguistics, and customs of Hawaii which, in turn, will tend to make him better able to relate to and serve his clients to the end that he may be more fit to practice law in Hawaii.”
Whatever else may be “unique” about Hawaii, there is nothing “unique” about its legal system and its laws. Both stem from the Anglo-American common law.
Hawaiian terms are today largely limited to an interpretation of the kingdom’s land laws and practices. Since there is no law school in Hawaii, all lawyers in Hawaii perforce graduate from mainland law schools. Thus an inference that an “understanding” of Hawaii’s “uniqueness” has any valid relevance to an applicant’s legal education or ability to be a sound lawyer here after admission is untenable. The “absorption” argument approaches the ludicrous since Rule 15(c) would permit one who was in Hawaii only between the age of 15 and 15i/4 to return sixty days before the scheduled examination and thereby be deemed to have qualified as having absorbed, appreciated and understood the “unique governmental structure * * * of Hawaii.”
Of equal deficiency is defendants’ second argument that at least six months residence at some time is necessary “to provide a minimal acclimatization period * *
*."
Admittedly, an understanding of the “cultural derivations” of Hawaii’s peoples, their “language patterns” and “philosophical outlook on life”
would be of value to any lawyer, but such understanding is hardly automatically acquired by any given period of residence here.
All parties agree that a state may properly fix a registration date prior to the examination in order that the Supreme Court may check and verify the personal and educational background as well as the morals and general character of the bar applicant. Hawaii has presently fixed this date as 60 days before the examination. Residency in Hawaii during this 60-day period is
not
required, even though this period is for the purpose, among others, of checking an applicant’s qualifications. It does not follow, then, that mere residence in Hawaii for
any
six-month period after age 15 would supply to the Supreme Court the necessary facts for an “informed judgment as to the applicant’s character.”
Lastly, defendants urge that one who is in residence here for at least six months is more likely to return to practice law in Hawaii. Not all successful bar applicants practice law after admission. Then too, many states (and United States District Courts)
distinguish between and regulate the respective practice privileges of “active” members of the bar, i. e., those attorneys who reside in and have an office in the state, and “inactive” members, i. e., those not so residing in and having an office therein. Such regulations are sufficient to achieve the desired objective of keeping attorneys at all times subject to the authority of the admitting court.
The periods of required residency in the statute and the rule here bear no valid relation to the educational and moral qualifications of bar applicants, and are thereby arbitrary and capricious and constitutionally impermissible. Both the act and the rule thus severally invidiously discriminate against an identifiable class, favoring registered voters or six-months residents over otherwise equally qualified applicants who have not the same residential status.
We conclude, therefore, that the preexamination residential requirements imposed by both § 605-1 and Rule 15(c) upon United States citizens applying for leave to take Hawaii’s bar examination contravene the Equal Protection Clause of the Fourteenth Amendment, and are thus invalid. By so holding, we need not consider plaintiff’s contention that the residency requirements impermissibly penalize his constitutional right to interstate travel or any other constitutional right. Because the law and the rule each denies to Potts and the class he represents the equal protection of the laws, we declare the law as well as the rule to be unconstitutional and therefore void.
Since Potts has taken the Fall 1971 bar examination, this court assumes that the Hawaii Supreme Court will hereafter treat him in the same fashion as other applicants who have likewise taken that examination. This court also assumes that, hereafter, any applicants who would be members of the class of bar applicants represented by Potts, will also be permitted to take the examinations, and if successful, be admitted to practice law in Hawaii.
This court, having full confidence that the defendants will comply with the law as we here have construed it, abstains from issuing any injunctive order to them.