Chi-Dooh Li, In re

• Decision Date: 26 August 1971
• Docket Number: No. 41627,CHI-DOOH,41627
• Citation: 79 Wn.2d 561,488 P.2d 259
• Parties: In re the Matter ofLI, Petitioner.
• Court: Washington Supreme Court

Page 561

79 Wn.2d 561

488 P.2d 259

In re the Matter of CHI-DOOH LI, Petitioner.

No. 41627.

Supreme Court of Washington, En Banc.

Aug. 26, 1971.

Chi-Dooh Li, pro se.

Washington State Bar Association, Jack P. Scholfield, Seattle, for Washington State Bar Association.

NEILL, Justice.

Petitioner seeks admission to the practice of law in this state. He was denied admission to the bar by the Board of Governors of the state bar association solely on the basis of a requirement in APR 2, subd. B(2) and APR 5, subd. G(1) and RCW 2.48.190 and 2.48.210 that applicants be United States citizens.

Petitioner is a citizen of the Republic of China, but has resided continuously in the United States since June, 1962. He is married to an American citizen and is a 'resident alien' with permanent residence status, having been granted this status under federal immigration and naturalization statutes in January, 1969, by the United States Department of Justice. He has filed a sworn declaration of intent to become a citizen of the United States in accordance with federal law and will be eligible for citizenship in January, 1972. Pending hearing of this matter, petitioner was permitted to take the July, 1970, bar examination, which he passed. No question as to his qualifications is raised other than that of American citizenship.

Petitioner contends that the citizenship restrictions of the above-cited rules and statutes are invalid on constitutional due process and equal proection grounds, relying on Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 200 (1886); Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 92 L.Ed. 1478, 69 S.Ct. 1138 (1948); Schware v. Board of Bar Examiners of N.M., 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). But cf., In re Admission to the Bar, 61 Neb. 58, 84 N.W. 611 (1900), and Large v. State Bar of Cal., 218 Cal. 334, 23 P.2d 288 (1933). He also contends that these rules and statutes conflict with federal immigration statutes (8 U.S.C. § 1101, et seq.), citing Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1940); Takahashi v. Fish & Game Comm'n, Supra; Purdy & Fitzpatrick v. State, 71 Cal.2d 566, 79 Cal.Rptr. 77, 456 P.2d 645 (1969). Finally, he urges that these state requirements conflict with the federal Civil Rights Act of 1870 (42 U.S.C. § 1981), citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824).

Since the commencement of these proceedings, Admission to Practice Rules have been amended. 78 Wash.Dec.2d 717, (1971). ¹ These amendments open bar membership to otherwise qualified resident aliens who have declared their intent and are proceeding with due diligence to become citizens. These amendments, if effective, have removed petitioner's ineligibility. The only question is whether the effectiveness, of these amendments is precluded by RCW 2.48.190 and 2.48.210, requiring United States citizenship for admission to the practice of law.

The above statutes pose no bar to the amendment of Admission to Practice Rules, since they have been impliedly repealed by the State Bar Act of 1933 (Laws of 1933, ch. 94) establishing the integrated bar of this state. ²

RCW 2.48.190 and 2.48.210 are codifications of Laws of 1921, ch. 126. The 1921 act provided:

No person shall be permitted to practice as an attorney or counselor at law * * * unless he is a citizen of the United States. * * *

When the legislature enacted the comprehensive state bar act of 1933, a section was included repealing all acts and parts of acts in conflict. Laws of 1933, ch. 94, § 16. The 1933 act provides (RCW 2.48.060):

The said board of governors shall likewise have power, in its discretion, from time to time to adopt rules, subject to the approval of the supreme court, fixing the qualifications * * * for admission to the practice of law; * * *

In a long line of cases we have held that a statute is impliedly repealed by a later legislative enactment if certain conditions are present in the later enactment. The conditions are (1) the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede prior legislation on the subject; or (2) the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot be reconciled and both given effect by a fair and reasonable construction. E.g., State v. Becker, 39 Wash.2d 94, 234 P.2d 897 (1951); State ex rel. Spokane & Eastern Br. of Seattle First Nat'l Bank v. Justice Court for Spokane Precinct, 189 Wash. 87, 63 P.2d 937 (1937).

The elements of condition (1) are clearly evident in this case. RCW 2.48.190 and 2.48.210 are a portion of Laws of 1921, ch. 126, which is entitled:

An Act relating to the practice of law, providing for a State Board of Law Examiners, defining its powers and duties, providing for the licensing of attorneys and counselors at law and for the suspension or revocation of licenses, providing penalties for the violation hereof, * * *

The later enactment, Laws of 1933, ch. 94, is entitled:

An Act to create an association to be known as the 'Washington State Bar Association;' to provide for its organization, government, membership and powers; to regulate the practice of law and to provide penalties for the violation of said act and repealing all acts or parts of acts in conflict therewith.

Each act is complete in itself. The 1933 act covers the entire subject matter of the 1921 act, I.e., the regulation of the practice of law, licensing of attorneys, qualifications to practice, and suspension and revocation of licenses. The 1933 act contains a general repealer section providing: 'All acts and parts of acts in conflict with this act, or with any rule adopted hereunder, are * * * hereby repealed.' Although we have held that such language will not, of itself, constitute a repeal by implication (State v. Becker, Supra; Washington State Board Against Discrimination v. Board of Directors, 68 Wash.2d 262, 412 P.2d 769 (1966)), the use of this language by the legislature is clear evidence of its intent that prior legislation on the same subject be superseded and is added indicia of such effect. Each element for implied repeal being present, the provisions of the 1921 act are superseded by the 1933 act. ³ Under the latter enactment, the power to establish qualifications for admission to practice is specifically entrusted to the Board of Governors of the state bar association, subject to final approval by this court. Pursuant to this authority, the requirement of United States citizenship for admission to the bar has been modified to permit a resident alien to be admitted to the bar, subject to revocation of his license should he fail to seasonably attain citizenship.

An added consideration favoring effectiveness of the amended rules derives from the doctrine of separation of powers. We said in Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 414, 63 P.2d 397, 405 (1937):

The division of sovereignty into three branches and the investiture of all judicial power in the courts, as prescribed by the constitution, have been recognized and affirmed by this court on repeated occasions.

Accord, e.g., Plummer v. Gaines, 70 Wash.2d 53, 422 P.2d 17 (1966); Territory ex rel. Kelly v. Stewart, 1 Wash. 98, 23 P. 405, 8 L.R.A. 106 (1890). This basic concept of American constitutional government is discussed in general terms in 16 Am.Jur.2d Constitutional Law § 219 (1964). See also, Application of Park, 484 P.2d 690 (Alaska, 1971); 16 Am.Jur.2d Constitutional Law §§ 212--214, 220--222, 234, 239 (1964).

We earlier considered the inherent power of this court to govern admissions to the practice of law in State ex rel. Laughlin v. Washington State Bar Ass'n, 26 Wash.2d 914, 916, 176 P.2d 301 (1947), wherein we stated:

It has been a fixed rule in this state that the paramount power of determining which lawyers may or may not appear in the courts is inherently an attribute of the judicial branch of the state government and, particularly, of the supreme court, which is the highest in order in the judicial hierarchy. * * *

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Continuously through the years and as late as August, 1945, in In re Levy, 23 Wn.2d 607, 161 P.2d 651, this court has adhered to the rule that the inherent and exclusive power of admission to practice law rests with the court itself and not with the Washington state bar association or any other agency of the state of Washington. The language used by Judge Robinson, the writer of the opinion in that case, has force in our present discussion:

'We find, upon an examination of the authorities, that they are almost unanimously in accord with the following statement found in Brydonjack v. State Bar, 208 Cal. 439, 281 P. 1018, 1020, 66 A.L.R. 1507:

"Admission to practice is almost without exception conceded everywhere to be the exercise of a judicial function, * * * Admissions to practice have also been held to be the exercise of one of the inherent powers of the court. (In re Bruen, 102 Wash. 472 (172 P. 1152); In re Chapelle, 71 Cal.App. 129 (234 Pac. 906).)"

The opinion cites with approval In re Day, 181 Ill. 73, 54 N.E. 646, 50 L.R.A. 519, regarded in many of the decisions of the country as the leading case. The particular language referred to in the Day case is as follows:

"The fact that the legislature may prescribe the qualifications of doctors, plumbers, horseshoers and persons following other professions or callings not connected with the judicial system, and may say what shall be evidence of such qualifications, can have no influence on this question. A license to such persons confers no right to put the judicial power in motion or to participate in judicial proceedings. The attorney is a necessary part of the judicial system, and his vocation is not merely to find persons who are willing to have lawsuits. He is the first one to sit in judgment on every case, and whether the court shall be called upon to act depends on his...