Sargus v. West Virginia Bd. of Law Examiners

• Decision Date: 14 July 1982
• Docket Number: No. 15598,15598
• Parties: Jennifer Smart SARGUS v. WEST VIRGINIA BOARD OF LAW EXAMINERS.
• Court: West Virginia Supreme Court

Page 440

294 S.E.2d 440

170 W.Va. 453

Jennifer Smart SARGUS v. WEST VIRGINIA BOARD OF LAW EXAMINERS.

No. 15598.

Supreme Court of Appeals of West Virginia.

July 14, 1982.

Syllabus by the Court

The requirement in Rule 1.000 of the West Virginia Code of Rules for Admission to the Practice of Law that an applicant for admission to the West Virginia State Bar must be a resident of West Virginia more than thirty (30) days prior to taking the bar examination is discriminatory against nonresidents in violation of the Privileges and Immunities Clauses contained in article IV, section 2, clause 1 of the United States Constitution and section 1 of the Fourteenth Amendment to the United States Constitution.

Steptoe & Johnson, Herbert G. Underwood and Susan S. Brewer, Clarksburg, for petitioner.

Chauncey H. Browning, Atty. Gen. and Janet Frye Steele, Asst. Atty. Gen., Charleston, for respondent.

Allan Sherry, pro se, Woodsfield, Ohio, amicus curiae.

McHUGH, Justice:

This case is before this Court on a petition for review of the action of the West Virginia Board of Law Examiners, respondent, in denying the application of Jennifer Smart Sargus, petitioner, to become a member of the West Virginia State Bar by examination. Allegedly, petitioner was denied the opportunity to take the February, 1982 bar examination because she had not met the requirement of being a West Virginia resident for more than thirty (30) days prior to taking the examination as prescribed by Rule 1.000 of the West Virginia Code of Rules for Admission to the Practice of Law. ¹ Petitioner asserts that the residency requirement infringes upon her constitutional right to pursue a livelihood, which is protected by the Privileges and Immunities Clauses contained in article IV, section 2, clause 1, of the United States Constitution, and section 1 of the Fourteenth Amendment to the United States Constitution. ² This Court has before it the petition for review, all matters of record and briefs and argument of counsel.

There is no dispute between the parties as to the facts surrounding this case. Petitioner is a resident of St. Clairsville, Ohio, and a 1978 graduate of Vanderbilt University School of Law. She became licensed to practice law in the State of Ohio on May 7, 1979 and has since held various legal positions in that state. In November, 1981, petitioner began employment with a law firm in Wheeling, West Virginia, which is near St. Clairsville but across the Ohio River.

Desiring to become a member of the West Virginia State Bar, petitioner soon applied for admission, by examination to be given in February, 1982. The application contained a character questionnaire and various letters wherein petitioner admitted that she could not meet the thirty (30) day residency requirement because it would cause undue hardship on her family. She offered alternatives to respondent with the expectation of satisfying the underlying purposes of the residency requirement but was unsuccessful.

In a special meeting of the Board of Law Examiners, held December 4, 1981, petitioner's application and credentials were considered, and in a letter dated December 7, 1981, petitioner was informed that she would not be allowed to take the February, 1982 bar examination. ³

Petitioner seeks review by this Court of the decision of the West Virginia Board of Law Examiners pursuant to Rule 3.060 of the West Virginia Code of Rules for Admission to the Practice of Law which states:

A review by the West Virginia Supreme Court of Appeals of the decision of the Board of Law Examiners denying any application may be had by the applicant. Such review shall be only upon the record upon which the Board of Law Examiners acted and the decision of the Board of Law Examiners shall not be reversed except for an abuse of discretion. ⁴

Petitioner argues that West Virginia's thirty (30) day residency requirement infringes upon her fundamental right to pursue her livelihood as an attorney at law which she asserts is protected by the Privileges and Immunities Clauses of the United States Constitution. She claims that to impose such a requirement on nonresident attorneys seeking admission by examination to the West Virginia State Bar is invidious discrimination which bears no substantial relationship to the State's legitimate interest in protecting its citizens from unqualified lawyers. Conversely, respondent contends that the right to practice law is not fundamental and that the residency requirement bears a close relationship to the State's goals.

In recent years, the Privileges and Immunities Clause contained in article IV, section 2, clause 1 of the United States Constitution has been applied to strike down residency requirements for the admission to the practice of law in various states. See Piper v. Supreme Court of New Hampshire, 539 F.Supp. 1064 (D.N.H.1982); Stalland v. South Dakota Board of Bar Examiners, 530 F.Supp. 155 (D.S.D.1982); Strauss v. Alabama State Bar, 520 F.Supp. 173 (N.D.Ala.1981); Sheley v. Alaska Bar Association, 620 P.2d 640 (Alaska 1980) and Gordon v. Committee on Character and Fitness, 48 N.Y.2d 266, 397 N.E.2d 1309, 422 N.Y.S.2d 641 (1979). In reaching this conclusion these courts primarily relied upon Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978) and Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978), which recently "revitalized" the Privileges and Immunities Clauses after years of dormancy. ⁵

As the United States Supreme Court stated in Baldwin :

Perhaps because of the imposition of the Fourteenth Amendment upon our constitutional consciousness and the extraordinary emphasis that the Amendment received, it is not surprising that the contours of Art. IV, § 2, Cl. 1, are not well developed, and that the relationship, if any, between the Privileges and Immunities Clause and the 'privileges or immunities' language of the Fourteenth Amendment is less than clear. We are, nevertheless, not without some pronouncements by this Court as to the Clause's significance and reach.

436 U.S. at 380, 98 S.Ct. at 1858.

In Baldwin v. Fish and Game Commission of Montana, supra, a scheme that imposed higher license fees for elk hunting on nonresidents than residents was challenged as contrary to the Privileges and Immunities Clause. In upholding the law, the Court held that "[e]quality in access to Montana elk is not basic to the maintenance or well-being of the Union." 436 U.S. at 388, 98 S.Ct. at 1862. It found that nonresidents are not "deprived of means of a livelihood by the system or of access to any part of the State to which they may seek to travel." Id. A recreational sport such as elk hunting is not an "essential activity or a basic right" protected by the Privileges and Immunities Clause. 436 U.S. at 387, 98 S.Ct. at 1862.

Quoting from Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180, 19 L.Ed. 357 (1869), the Court in Baldwin stated:

It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws.

436 U.S. at 380, 98 S.Ct. at 1858.

It was recognized, though, that cases subsequent to Paul v. Virginia, supra, revealed that the effect of the clause is not all pervasive. As the Court stated in Toomer v. Witsell, 334 U.S. 385, 396, 68 S.Ct. 1156, 1162, 92 L.Ed. 1460, 1471 (1948):

It does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States. But it does not preclude disparity of treatment in the many situations where there are perfectly valid reasons for it. Thus, the inquiry in each case must be concerned with whether such reasons do exist and whether the degree of discrimination bears a close relation to them.

The purpose of the Privileges and Immunities Clause "is to outlaw classifications based on the fact of non-citizenship unless there is something to indicate that non-citizens constitute a peculiar source of the evil at which the statute is aimed." 334 U.S. at 398, 68 S.Ct. at 1867.

In Hicklin v. Orbeck, supra, an Alaskan statute known as the "Alaska Hire" law, was struck down as violative of the Privileges and Immunities Clause. Alaska Hire required preferential employment of residents over nonresidents by private companies involved in oil and gas leases, easements, right-of-way permits and other such contracts with the state. The statute was purportedly passed to combat Alaska's uniquely high unemployment rate.

The United States Supreme Court held that there was no evidence to indicate that nonresidents constituted "a peculiar source of the evil" and determined that Alaska's high unemployment rate was due more to large numbers of unskilled and untrained Alaskans and the "geographical remoteness" of many areas of the state. 437 U.S. at 526-27, 98 S.Ct. at 2487-88. Therefore, "Alaska Hire's discrimination against nonresidents cannot withstand scrutiny under the Privileges and Immunities Clause." 437 U.S. at 526, 98 S.Ct. at 2487.

Among the most persuasive of the recent cases invalidating residency requirements as violative of the Privileges and Immunities Clause of article IV, section 2, is the decision by the Supreme Court of Alaska in Sheley v. Alaska Bar Association, supra, striking down a thirty (30) day residency requirement prior to taking the bar...