In re Opinion of the Justices

• Decision Date: 21 April 1932
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

279 Mass. 607

180 N.E. 725

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

April 21, 1932.

Opinion of the Justices concerning the constitutionality of a pending bill entitled ‘An Act to regulate the Correction of Answers to Bar Examination Questions,’ given in response to questions submitted by the Senate which follows:

Whereas, There is pending before the Senate a bill entitled, ‘An Act to regulate the correction of answers to bar examination questions,’ printed as Senate document number three hundred and twenty-two, a copy of which is hereto annexed; and

Whereas, Grave doubt exists as to whether the enactment of such a bill properly lies within the legislative province as defined and limited by the Constitution of the Commonwealth; accordingly be it

Ordered, That the Senate require the opinions of the Honorable the Justices of the Supreme Judicial Court on the following important questions of law:--

1. Would the General Court be usurping the functions of the Judiciary in enacting such a bill?

2. Would such bill, if enacted into law, be violative of Article 30 of the Declaration of Rights?

3. To what extent is the admission of candidates to the office of attorney-at-law subject to regulation and control of the General Court?

To The Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions contained in an order adopted March 31, 1932, and transmitted to them on the same day, a copy whereof is hereto annexed.

The questions pertain to a pending bill entitled ‘An Act to regulate the Correction of Answers to Bar Examination Questions.’ The substance of the bill is an amendment to G. L. c. 221, § 36, respecting the board of bar examiners, to the effect that the marking of examination papers of applicants for admission to the bar by any person not a member of the board is prohibited. The questions are directed to the point whether such bill if enacted would be an unconstitutional interference with the functions of the judicial department of government. It has not been determined in any decision of the Supreme Judicial Court where the ultimate power rests as to admission to the bar under the Constitution. The opinion in Robinson's Case, 131 Mass. 376, 41 Am. Rep. 239, refers both to statutes and to action by the judiciary, there being no conflict between the two. There is nothing bearing on the point in Ames v. Gilman, 10 Metc. 239;Bishop v. Hall, 9 Gray, 430, or Bergeron, petitioner, 220 Mass. 472, 107 N. E. 1007, Ann. Cas. 1917a, 549.

By article 30 of the Declaration of Rights of the Constitution, the government of the commonwealth is divided into three departments and it is provided that ‘the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.’ By article 29 the independence of the judicial department is declared to be essential to ‘an impartial interpretation of the laws, and administration of justice.’ There is no provision in the Constitution referringin terms to the admission of attorneys to practice in the courts. The Constitution thus separates with singular precision and unmistakable clarity the soverign power of the state into three departments. It creates each supreme in its respective field. It allots the legislative power to the General Court. With equal impressiveness of words it assigns judicial power to the courts.

It is indispensable to the administration of justice and the interpretation of the laws that there be members of the bar of sufficient ability, adequate learning and sound moral character. This arises from the need of enlightened assistance to the honest, and restraining authority over the knavish, litigant. It is highly important, also, that the public be protected from incompetent and vicious practioners, whose opportunity for doing mischief is wide. It was said by Cardozo, C. J., in People ex rel. Karlin v. Culkin, 248 N. Y. 465, 470, 471, 162 N. E. 487, 489, 60 A. L. R. 851: “Membership in the bar is a privilege burdened with conditions.” One is admitted to the bar ‘for something more than private gain.’ He becomes ‘an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice. His co-operation with the court’ is due ‘whenever justice would be imperiled if co-operation was withheld.’ Without such attorneys at law the judicial department of government would be hampered in the performance of its duties. That has been the history of attorneys under the common law, both in this county and in England. Admission to practice as an attorney at law is almost without exception conceded to be a judicial function. Petition to that end is filed in court, as are other proceedings invoking judicial action. Admission to the bar is accomplished and made open and notorious by a decision of the court entered upon its records. The establishment by the Constitution of the judicial department conferred authority necessary to the exercise of its powers as a co-ordinate department of government. It is an inherent power of such a department of government ultimately to determine the qualifications of those to be admitted to practice in its courts, for assisting in its work, and to protect itself in this respect from the unfit, those lacking in sufficient learning, and those not possessing good moral character. Chief Justice Taney stated succinctly and with finality in Ex Parte Secombe, 19 How. 9, 13, 15 L. Ed. 565, ‘it has been well settled, by the rules and practice of common-law courts, that it rests exclusively with the court to determine who is qualified to become one of its officers, as an attorney and counsellor, and for what cause he ought to be removed.’

There is nothing in the Constitution, either in terms or by implication, to indicate an intent that the power of the judiciary over the admission of persons to become attorneys is subject to legislative control. The grant of legislative competency to the General Court is in broad language (chapter 1 of the Constitution, and especially part 2, chapter 1, § 1, art. 4). But it is subject to the impressive limitations of article 30 of the Declaration of Rights already quoted. It does not embrace the power to override the judicial department of government as to the qualifications of those to be admitted to practice law. The inherent jurisdiction of the judicial department of government over attorneys at law is illustrated in several of our decisions to the effect that power to remove an attorney for misconduct, malpractice, or deficiency in character, although recognized by statute (G. L. c. 221, §40, as amended by St. 1924, c. 134), is nevertheless inherent and exists without a statute. In re Randall, petitioner, 11 Allen, 472.Matter of Carver, 224 Mass. 169, 172, 112 N. E. 877, and cases cited. Matter of Ulmer, 268 Mass. 373, 397, 167 N. E. 749, and cases cited. No sound distinction can be drawn with respect to attorneys at law between the power to admit and the power to remove under the terms of the Constitution.

Numerous statutes have been passed making provision in aid of the judicial department in reaching a proper selection of those qualified for admission as attorneys to practice in the courts. It is not necessary to review them in detail. Like many other statutes, they have been enacted to enable the courts to perform their duties. They have been enacted, also, in the exercise of the police power to protect the public from those lacking in ability, falling short in learning, or deficient in moral qualities, and thus incapable of maintaining the...