(concurring and dissenting). I agree with the Board of Bar Examiners' decision declining to determine the constitutionality of *98SCR 40.05(l)(c).1 The Board should not rule on the constitutionality of Supreme Court Rules it administers. Furthermore, the record supports the Board's decision declining to exercise its discretion to waive the requirements this court has set forth in SCR 40.05(l)(c).
According to the per curiam opinion, the issue in this case is the constitutionality of the Michigan rule requiring that applicants for admission to the Michigan bar without examination maintain an office in Michigan for the practice of law. Michigan Rule 5(A)(4).2 The per curiam opinion then declines to determine the constitutionality of the Michigan rule.
I believe this analysis is seriously flawed. Attorney Saretsky is not contesting the constitutionality of any Michigan bar rule. He was admitted to practice law in Michigan in 1980; he has fulfilled all the requirements for admission and continues to practice in that state.
Rather, Attorney Saretsky is challenging the constitutionality of this court's rule, SCR 40.05(l)(c), which is impeding his admission to practice in Wiscon*99sin. SCR 40.05(l)(c) requires Michigan lawyers seeking admission to the Wisconsin bar without examination to maintain an office in Wisconsin for the practice of law.
The application of SCR 40.05(l)(c) produces strange results. A Michigan lawyer seeking admission to the Wisconsin bar without examination must state that he or she intends in good faith to maintain an office in the state of Wisconsin for the practice of law. An Indiana lawyer, however, may be admitted without making this declaration. Any lawyer presently admitted to the Wisconsin bar on diploma privilege or on examination or on motion need not retain an office in Wisconsin in order to continue membership in the Wisconsin bar.3
Attorney Saretsky asserts that the Wisconsin Supreme Court Rule has no rational connection with the applicant's fitness or capacity to practice law or with any other legitimate state objective and therefore violates due process. Schware v. Board of Bar Examiners, 353 U.S. 232, 239 (1957); Barnard v. Thorstenn, 489 U.S. 546, 553 (1989). Attorney Saretsky further contends that the Wisconsin Supreme Court Rule violates the equal protection, privileges and immunities, and commerce clauses of the federal Constitution. Cf. Supreme Court v. Piper, 470 U.S. 274, 285-87 (1985) (declaring unconstitutional state's residence requirement for bar admission); Frazier v. Heebe, 482 U.S. 641 (1987) (striking down under superintending power federal district court rules requiring residence or maintenance of a law office as unnecessary, arbitrarily *100discriminatory against out-of-state lawyers, and irrational); Barnard v. Thorstenn, 489 U.S. 546 (1989) (declaring unconstitutional requirements of residence and declaration of intent to practice law).
SCR 40.05(l)(c) was adopted by this Court upon the petition of the State Bar filed July 1, 1986.4 The Board of Bar Examiners questioned the constitutionality of the Bar's proposal.5 Now Attorney Saretsky raises significant questions concerning its reasonableness and its constitutionality. Since the Bar filed its memorandum supporting the constitutionality of its petition, the United States Supreme Court has decided cases (cited above) relevant to the constitutionality of SCR 40.05(l)(c). Therefore I believe this court should examine the constitutional issues presented in this case. I would schedule this case for oral argument and request the State Bar of Wisconsin to brief the issue of the constitutionality of SCR 40.05(l)(c).
For the reasons set forth, I agree with the Board of Bar Examiner's decision declining to certify Attorney Saretsky for admission to the Wisconsin bar. I disagree, however, with the court's dismissal of Attorney Saretsky's petition without determining the merits of his challenge to the constitutionality of Wisconsin Supreme Court Rule 4Q.Q5(l)(c).
SCR 40.05 Legal competence requirements Proof of practice elsewhere. (1) An applicant shall satisfy the legal competence requirement by presenting to the clerk certification of the board that the applicant has provided all of the following:
(c) If any state, territory or the District of Columbia practice in which is proposed to satisfy the requirement of sub. (b) has, as of the date of the filing of the application, requirements for bar admission in that jurisdiction on the basis of practice in Wisconsin other than those set forth in subs, (a) and (b), proof that the applicant has satisfied those requirements of that state, territory or the District of Columbia.
Michigan Rule 5(A)(4) provides in pertinent part: "An applicant for admission without examination must intend in good faith to maintain an office in this state for the practice of law."
About 30% of the more than 14,000 lawyers licensed to practice law in Wisconsin reside outside Wisconsin. Thomas Sleik, President's Perspective, Wis. Law., Dec. 1992 at 3. One assumes that most of these lawyers do not maintain offices in Wisconsin.
See State Bar Petition filed by State Bar of Wisconsin, SCR ch. 40, Admission to the State Bar, in Office of the Clerk of the Supreme Court, Madison, WI.
See memorandum of the Board of Attorneys Professional Competence (now known as the Board of Bar Examiners) filed December 9,1986, in SCR ch. 40, Admission to the State Bar, in office of the Clerk of the Supreme Court, Madison, WI, pp.4-5.