Heiberger v. Clark

Decision Date21 March 1961
Citation148 Conn. 177,169 A.2d 652
CourtConnecticut Supreme Court
PartiesSidney S. HEIBERGER v. Ralph CLARK et al. Supreme Court of Errors of Connecticut

Louis Feinmark, New Haven, for appellant (plaintiff).

William W. Gager, Waterbury, for appellees (defendants).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

BALDWIN, Chief Justice.

The plaintiff brought this action against the members of the bar examining committee of the state of Connecticut for a judgment declaring that he was entitled, unconditionally, to take the examination given in December, 1957, for admission to the bar and that he is now entitled to admission to the bar. He alleges, in substance, that he had complied with all the requirements for admission other than those imposed by subsections fifth, sixth and seventh of § 4 of the rules of the Superior Court concerning the admission of attorneys; Practice Book § 4; 1 and that he has fulfilled the requirements of Public Acts 1957, No. 528, entitled 'An Act concerning Admission to the Bar Examination of Certain Residents of This State,' now General Statutes § 51-82. 2

The complaint contains, in substance, the following pertient allegations: 'The plaintiff has resided in this state since 1940. He was admitted to practice at the bar of New York in 1935, is a member of that bar, and has practiced law in New York for not less than ten years. In July, 1957, he filed with a clerk of the Superior Court an application of take the Connecticut bar examination, and he was informed in November, 1957, that his application had been approved. In December he was told by the bar examining committee that his educational qualifications did not meet the requirements as to prelaw education and as to graducation from a law school which was, at the time the applicant was graduated, accredited by the committee. He was, however, permitted to take the examination in December, 1957, on condition that his application be thereafter approved by the committee. He took the examination and 'upon information and belief' passed it, but the committee refused to recommend him for admission to the bar because he had not complied with the rules of the Superior Court as to an applicant's educational qualifications.

The defendants demurred to the complaint on the ground that it did not aver that the plaintiff had 'complied with the Rules and the Regulations relating to his educational qualifications' and that General Statutes § 51-82 was unconstitutional. The court sustained the demurrer. The plaintiff having failed to plead further, judgment was rendered that he was not entitled to the relief prayed for. He has appealed. The appeal presents this issue: Does the legislative department of the government of this state possess the power to fix the qualifications for admission of persons to practice law, so that the provisions of General Statutes § 51-82 prevail over the rules adopted by the judges of the Superior Court?

At the outset of our consideration of this case we are best with procedural difficulties. Questions of law arising upon proceedings for admission to the bar are properly presented in a petition to the court. Blaney v. Standing Committee, 129 Conn. 51, 26 A.2d 354; Rosenthal v. State Bar Examining Committee, 116 Conn. 409, 415, 165 A. 211, 87 A.L.R. 991; O'Brien's Petition, 79 Conn. 46, 59, 63 A. 777; In re Hall, 50 Conn. 131. This is so because such proceedings are not actions or suits at law. They are in the nature of investigations by the courts or their representatives to determine whether the candidate is qualified to become an officer of the courts. In re Application of Dodd, 131 Conn. 702, 707, 42 A.2d 36; Rosenthal v. State Bar Examining Committee, supra; In re Durant, 80 Conn. 140, 148, 67 A. 497; Fairfield County Bar v. Taylor, 60 Conn. 11, 15, 22 A. 441, 13 L.R.A. 767. There are no adversary parties in the technical legal sense, although our reports contain cases which, in their titles, carry as parties not only the names of the petitioners but those of bar examining committees and grievance committees. In re Application of Dodd, supra, 131 Conn. 705, 42 A.2d 36; Grievance Committee of Hartford County Bar v. Broder, 112 Conn. 263, 265, 152 A. 292. The bar examining committee is an arm of the court to which is entrusted the administration of specific details, including, and properly so, the power to act on the educational qualifications for admission to the bar. Blodgett ex rel. Bazil v. Boardman, 127 Conn. 475, 477, 18 A.2d 370; Rosenthal v. State Bar Examining Committee, supra, 116 Conn. 417, 165 A. 211. The committee can act however, only under the supervision of the court. It is the court, and not the committee, which takes the final and decisive action. In re Application of Dodd, 132 Conn. 237, 244, 43 A.2d 224; Grievance Committee v. Broder, supra. Proceedings for admission to the bar or for disbarment or disciplinary action are taken primarily for the purpose of preserving the courts of justice from the official ministration of persons unfit to practice in them. Grievance Committee v. Broder, supra, 112 Conn. 266, 152 A. 292, quoting from State v. Peck, 88 Conn. 447, 452, 91 A. 274, L.R.A.1915A, 663. The end result of these proceedings is a judgment from which an appeal lies to this court. In re Application of Dodd, 131 Conn. 702, 707, 42 A.2d 36; O'Brien's Petition, supra.

The complaint in this case purports to be one for a declaratory judgment. General Statutes § 52-29; Practice Book §§ 276-280. The attempt to make members of the state bar examining committee parties defendant and, by so doing, to create a civil action raising issues of fact and law which could only be properly raised on a petition to the court is of no avail. Furthermore, the complaint does not allege, as it should, that there is a substantial question or issue in dispute or an uncertainty in legal relations, although it can be said that the complaint contains allegations raising the clear inference that this is so. See Bania v. Town of New Hartford, 138 Conn. 172, 175, 83 A.2d 165; Practice Book, Forms Nos. 386-388. The prayers for relief do not comply with the rules or with the suggested forms. Practice Book § 276 & Forms Nos. 386-388.

The members of the bar examining committee have demurred to the complaint. Ordinarily, a demurrer to a complaint seeking a declaratory judgment can be interposed only where the complaint contains a prayer for coercive relief. United National Indemnity Co. v. Zullo, 143 Conn. 124, 131, 120 A.2d 73; Bird v. Plunkett, 139 Conn. 491, 504, 95 A.2d 71, 36 A.L.R.2d 951; Hill v. Wright, 128 Conn. 12, 15, 20 A.2d 388. In Buxton v. Ullman, 147 Conn. 48, 50, 156 A.2d 508, however, we considered the constitutionality of a statute in a declaratory judgment action which was demurred to on the ground that the rights and jural relationships of parties similarly situated had been conclusively determined by previous decisions. The instant case raises substantially the same question of constitutionality as was raised and decided in State Bar Ass'n of Conn. v. Connecticut Bank & Trust Co., 145 Conn. 222, 232, 140 A.2d 863, 69 A.L.R.2d 394.

Although the pleadings fail to comply with the principles laid down in our rules of practice and decisions, we are reluctant to dismiss this appeal on procedural grounds. The pleadings are improper, but they present the basic issue of law understandably. Neither side has sought to take advantage of the shortcomings of the pleadings. The matter is one of great importance to the plaintiff, and to the public and the bar as well. A dismissal of this appeal could only result in the raising of the precise question again, either on a petition by this plaintiff or on one by a person similarly situated. We are constrained, therefore, to consider the constitutionality of the statute on which the plaintiff relies and to treat that issue, as the parties and the trial court have treated it, as properly raised. See Cyphers v. Allyn, 142 Conn. 699, 702, 118 A.2d 318; West v. Egan, 142 Conn. 437, 441, 115 A.2d 322; Ruppert v. Liquor Control Commission, 138 Conn. 669, 673, 88 A.2d 388.

The constitution of our state, adopted in 1818, divides the powers of government into three distinct departments, 'and each of them [is] confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.' Conn. Const. art. II. Article third, § 1, vests the legislative power in a General Assembly. Article fifth, § 1, states: 'The judicial power of the state shall be vested in a supreme court of errors, a superior court, and such inferior courts as the general assembly shall, from time to time, ordain and establish: the powers and jurisdiction of which courts shall be defined by law.' Fixing the qualifications for, as well as admitting persons to, the practice of law in this state has ever been an exercise of judicial power. State Bar Ass'n of Conn. v. Connecticut Bank & Trust Co., supra; Rosenthal v. State Bar Examining Committee, 116 Conn. 409, 415, 165 A. 211, 87 A.L.R. 991; O'Brien's Petition, 79 Conn. 46, 55, 63 A. 777; see McGovern v. Mitchell, 78 Conn. 536, 548, 63 A. 433. Irrespective of legislation, the rule-making power is in the courts. In re Appeal of Dattilo, 136 Conn. 488, 492, 72 A.2d 50. The great weight of authority elsewhere accords with this principle. Brydonjack v. State Bar, 208 Cal. 439, 443, 281 P. 1018, 66 A.L.R. 1507; Application of Kaufaman, 69 Idaho 297, 315, 206 P.2d 528; In re Day, 181 Ill. 73, 89, 54 N.E. 646, 50 L.R.A. 519; Opinion of the Justices, 279 Mass. 607, 609, 180 N.E. 725, 81 A.L.R. 1059; State ex rel. Ralston v. Turner, 141 Neb. 556, 571, 4 N.W.2d 302, 144 A.L.R. 138; Application of Sedillio, 66 N.M. 267, 271, 347 P.2d 162; Olmsted's Case, 292 Pa. 96, 103, 140 A. 634; In re Bledsoe, 186 Okl. 264, 266, 97 P.2d 556; Application of Levy, 23 Wash.2d 607, 612, 161 P.2d 651, ...

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