Bring v. North Carolina State Bar

• Decision Date: 01 July 1997
• Docket Number: No. COA96-815,COA96-815
• Court: North Carolina Court of Appeals
• Parties: Ellen BRING, Petitioner, v. NORTH CAROLINA STATE BAR, Respondent.

Page 236

486 S.E.2d 236

126 N.C.App. 655

Ellen BRING, Petitioner, v. NORTH CAROLINA STATE BAR, Respondent.

No. COA96-815.

Court of Appeals of North Carolina.

July 1, 1997.

Harry H. Harkins, Jr., Atlanta, GA, for petitioner-appellant.

Carolin Bakewell, Raleigh, for respondent-appellee.

ARNOLD, Chief Judge.

The Petitioner first contends that N.C. Gen.Stat. § 84-24, which establishes the Board of Law Examiner's rule making power, "violates Article 1, § 6 and Article II, § 1 of the North Carolina Constitution as an unconstitutional delegation of legislative authority." G.S. § 84-24 provides, in pertinent part:

The Board of Law Examiners, subject to the approval of the Council shall by majority vote, from time to time, make, alter and amend such rules and regulations for admission to the Bar as in their judgment shall promote the welfare of the State and the profession....

N.C. Gen.Stat. § 84-24 (1995).

Pursuant to the power delegated to the Board of Law Examiners by the Legislature in this statute, the Board promulgates rules setting forth the guidelines for admission to the practice of law in North Carolina. Petitioner's contention that the Bar Council improperly denied approval of the New College of California School of Law relates specifically to Rule .0702 of the Rules Governing Admission to Practice of Law. Rule .0702 states, in pertinent part:

.0702 Legal Education

Every applicant applying for admission to practice law in the State of North Carolina, before being granted a license to practice law, shall prove to the satisfaction of the board that said applicant has graduated from a law school approved by the Council of the North Carolina State Bar or that said applicant will graduate within thirty (30) days after the date of the written bar examination from a law school approved by the Council of the North Carolina State Bar....

N.C. Admin. Code tit 21, r. 30.0702 (February 1988).

The Council's current policy in considering the eligibility of an applicant's legal education is to approve "only those schools which have themselves been approved by the American Bar Association." The Petitioner contends that the Board's actions pursuant to Rule .0702 and this policy constitute an unconstitutional delegation of legislative authority because "[t]he Board of Law Examiners, not the legislature, is setting the policy and establishing the minimum requirements for admission to the practice of law."

This Court and the Supreme Court have twice before reviewed challenges to the Board of Law Examiner's power under G.S. § 84-24 and determined that the statute does not represent an unlawful delegation of legislative power. In re Willis, 288 N.C. 1, 215 S.E.2d 771 (1975) ("character and general fitness" requirement of the statute regulating admission to the bar and the "good moral character" requirement of the Board of Law Examiner's rule promulgated thereunder were constitutionally permissible standards); Bowens v. Board of Law Examiners, 57 N.C.App. 78, 291 S.E.2d 170 (1982) (portion of G.S. § 84-24 delegating the time and manner of administering the bar examination did not constitute an unlawful delegation of legislative authority).

The Supreme Court explained the delegation doctrine in Willis:

It is well established that the constitutional power to establish the qualifications for admission to the Bar of this State rests in the Legislature. It is equally well settled that the Legislature may delegate a limited portion of its power as to some specific subject matter if it prescribes the standards under which the agency is to exercise the delegated authority. In licensing those who desire to engage in professions or occupations such as may be proper subjects of such regulation, the Legislature may confer upon executive officers or bodies the power of granting or refusing to license persons to enter such trades or professions only when it has prescribed a sufficient standard for their guidance.

In re Willis, 288 N.C. 1, 14-15, 215 S.E.2d 771, 779 (1975) (citations omitted). G.S. § 84-24 authorizes the Board of Law Examiners to makes rules for admission to the State's bar "as in their judgment shall promote the welfare of the State and the profession." This standard represents a guideline for the Board to follow in establishing rules for admission to the bar. In Bowens v. Board of Law Examiners, the bar applicant challenged the statutory guideline in G.S. § 84-24 that "[t]he examination shall be held in such manner and at such times as the Board of Law Examiners may determine." 57 N.C.App. 78, 81-82, 291 S.E.2d 170, 172 (1982). The Bowens court recognized that "[t]he law is complex, protean, and ever-growing," therefore, the legislature must be able to delegate a portion of the legislative powers to the Board of Law Examiners, who are "equipped to adapt legislation to complex conditions involving numerous details with which the Legislature cannot deal directly." Id. (Citations omitted.) In holding that the guideline for administering the bar examination set forth in G.S. § 84-24 is not an unlawful delegation of legislative authority, the Bowens court stated that "the determination of proficiency (in the law) becomes a ministerial function, not a matter of managing public affairs ... [t]he Board of Law Examiners is, therefore, not required to make important policy choices which might just as easily be made by the elected representatives in the Legislature." Id. (Citations omitted.)

To accept the petitioner's argument, we must conclude that approval of an applicant's legal education is an "important policy choice" and not a ministerial function. To qualify for admission to the bar in North Carolina, applicants are no longer allowed to establish their proficiency in the law singularly by obtaining a satisfactory grade on the written examination. The applicant must meet the threshold requirement of successfully completing a full course of study at a law school. The requirement for a legal education would be of no importance if the Board were unable to establish...