Golden v. State Bd. of Law Examiners

• Decision Date: 30 March 1978
• Docket Number: Civ. No. K-77-677.
• Citation: 452 F. Supp. 1082
• Parties: Vicki Greene GOLDEN v. STATE BOARD OF LAW EXAMINERS et al.
• Court: U.S. District Court — District of Maryland

452 F. Supp. 1082

Vicki Greene GOLDEN v. STATE BOARD OF LAW EXAMINERS et al.

Civ. No. K-77-677.

United States District Court, D. Maryland.

March 30, 1978.

Harold Buchman, Baltimore, Md., and Alan B. Morrison, Washington, D. C., for plaintiff.

Francis B. Burch, Atty. Gen., and Diana G. Motz, Asst. Atty. Gen., Baltimore, Md., for defendants.

FRANK A. KAUFMAN, District Judge.

Plaintiff asks this Court to declare unconstitutional and to enjoin enforcement of Rule 10 of the Rules Governing Admission to the Bar of Maryland.¹ Jurisdiction exists under 28 U.S.C. § 1343(3), the jurisdictional counterpart of 42 U.S.C. § 1983.²

On January 18, 1977, Golden, who resides in Washington, D. C.,³ filed an application for registration as a candidate for admission to the Maryland Bar and a petition to take the Maryland Bar examination scheduled in July 1977. She received in response a letter from the Secretary of the Maryland State Board of Law Examiners which letter stated, in pertinent part:

In response to your letter addressed to Mr. Gingerich, Chairman of the State Board of Law Examiners we regret to advise you that we cannot accept your application for registration as a candidate for admission to the bar.

There is no provision in the Rules adopted by the Court of Appeals of Maryland Governing Admission to the Bar which would permit the Board to waive the requirement of domicile in this State as provided in Rule 10.⁴

Rule 10 provides:

Maryland Domicile Essential

a. On Application or Petition

No person shall be entitled to file an application for registration under Rule 2 (Registration of Law Students) or take an examination under Rule 5 (Procedure to Take Bar Examination; Recognition of Law Schools) or retake an examination under Rule 8 (Taking Examination After Failure) unless, at the time of filing the application or taking or retaking the examination, such person is a domiciliary of Maryland.

b. On Admission

No person shall be admitted to the Bar of this State unless at the time of admission such person is a domiciliary of Maryland.⁵

Neither Rule 10 nor any other rule requires that residence exist at any times other than at registration for, and at the time of taking of, the bar exam, and at admission. Nor must an applicant maintain Maryland residency for any extended period of time. Rule 5(a)⁶ does, however, require that the applicant be a domiciliary of Maryland twenty days prior to the examination. Golden contends that Rule 10 violates the equal protection clause,⁷ the privileges and immunities clauses,⁸ and the commerce clause.⁹ Defendants seek summary judgment¹⁰ with regard to each of those challenges — challenges which are of a type which have been asserted in our increasingly mobile society within the present decade in a number of cases involving residency requirements of states other than Maryland, for bar examinations and admission to practice law. Most states do have such requirements though they differ substantially in content. The developing case law is most instructive with relation to the three-pronged attack plaintiff mounts herein.

Equal Protection

In Suffling v. Bondurant, 339 F.Supp. 257 (D.N.M.), aff'd mem. sub nom., Rose v. Bondurant, 409 U.S. 1020, 93 S.Ct. 460, 34 L.Ed.2d 312 (1972), the majority of the three-judge court sustained the constitutionality of a New Mexico rule which prevented persons who had passed the New Mexico Bar exam from being admitted to practice law in New Mexico until they had accumulated a six-month period of New Mexico residency either before, or before and after, the bar exam. The majority of the Court concluded that that rule did not deny equal protection because it allowed the community a reasonable period of time to observe and evaluate the applicant's moral character. Judge Bratton, dissenting, found no valid state purpose. The majority opinion (at 259-60) reviewed a number of cases previously decided with regard to the bar-residency requirements of other states and based its conclusion on its understanding of their teachings:

A state may require its bar members to be of good moral character and fit to practice their profession. Schware v. Board of Bar Examiners, supra. Accordingly, Rule II, subd. A, par. 10 of the Rules Governing Bar Examiners which provides that an applicant for examination must satisfy the Board of his good moral character is not challenged here.

A state may also require that an applicant for admission to the bar be a resident for a reasonable period of time in order that his character and fitness may be examined. Webster v. Wofford, 321 F.Supp. 1259 (N.D.Ga.1970).

The question seems to turn on the length of time required to determine good character and to establish residence before admission and whether that length of time is reasonable.

While the regulations require that residence and good moral character be established before taking the bar examination, the Commissioners have allowed the residence period to start at any time before the bar examination with the balance to be filled out after the examination. Residence in New Mexico can start at any time from five months and 29 days before or on the day of the examination with the balance of time to be completed after the examination and good moral character can be established after the examination.

None of the cases in which residency requirements have been held unconstitutional deals with the requirements as liberal as those of New Mexico.

Mississippi required twelve months' residency prior to application to take the examination and further required that a written application be filed at least ninety days before the time of examination. Residency in Mississippi was thus required for a total of fifteen months. Lipman v. Van Zant, 329 F.Supp. 391 (N.D. Miss.1971).

Georgia required establishment of good moral character before taking the examination and twelve months' residence after passing the examination prior to admission. Webster v. Wofford, supra. North Carolina required twelve months' residence prior to taking the examination and gave the examination only once each year. Keenan v. Board of Law Examiners of State of North Carolina, 317 F.Supp. 1350 (E.D.N.C.1970). In no case was less than one year's residence required and in Keenan the time could run as high as two years.

Potts v. Honorable Justices of Supreme Court of Hawaii, U.S.D.C. Hawaii, 332 F.Supp. 1392 (1971), dealt with a six months' residency requirement which was held to violate the Equal Protection Clause of the Fourteenth Amendment, but that case is distinguishable. The challenged statute and regulation in Potts required that an applicant for the bar examination be a qualified, registered voter and a resident for any six-month period after attaining age fifteen.

Hawaii also fixed a sixty-day registration period prior to the bar examination for the express purpose of enabling the Supreme Court to verify the educational background, morals and character of the applicant. Residency in Hawaii was not required during this sixty-day period. The three-judge court determined that since residency was not required during this period, residency for any six-month period after age fifteen would not furnish the Supreme Court with facts necessary for an informed judgment as to the applicant's character. The court held that the residency requirements were arbitrary, capricious and unconstitutional but declined to consider whether plaintiff's right to interstate travel or any other constitutional right had been infringed upon.

We conclude that six months' residence in New Mexico to be commenced either any time before the bar examination or as late as the day of the bar examination is a reasonable period in which to afford the Board of Bar Examiners an opportunity to investigate the morals and character of those persons who seek to become members of the New Mexico bar. It also provides a realistic time period in which three members of the bar residing in the applicant's locality can certify regarding his moral character as required by Rule VI(38) of the Rules Governing Bar Examiners.

Considered under the traditional test of reasonable classification which is the standard we hold applicable, the six-month residency requirement is reasonable and does not unduly penalize petitioners' right to interstate travel. While rejecting application of the stricter test of Equal Protection in this case, Lipman v. Van Zant, supra, 329 F.Supp. at page 403, we express the view that a state does have a compelling interest in the quality and integrity of the persons whom it licenses to practice law and may impose regulations which promote that interest.

Judge Bratton, in dissent, wrote (at 260-62):

In Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957), the United States Supreme Court articulated the standard by which this case is governed:

A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment. (Citations omitted) A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant in the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. 353 U.S. at 238-239, 77 S.Ct. at 756.

Applying the language of Schware to the present case, it is incumbent upon the Board of Bar Examiners to show that the 6 month residency requirement of Rule II, subd. A, par. 8 has a "rational connection" to the State's determination of fitness or capacity to practice law. Because I believe that the Board has failed to meet the burden, I cannot agree with the holding of the majority.

Rule II, subd. A, par. 8 creates two classes of bar applicants: (1) those who, at the time of the bar examination, have resided in New Mexico for 6 months, and (2) those who, at the time of the

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