In re Yanni

• Decision Date: 11 May 2005
• Docket Number: No. 23260.,23260.
• Citation: 2005 SD 59,697 N.W.2d 394
• Parties: In the Matter of the Application of Amy YANNI for Review of the Decision of the Board of Bar Examiners (SDCL 16-16-16).
• Court: South Dakota Supreme Court

697 N.W.2d 394

2005 SD 59

In the Matter of the Application of Amy YANNI for Review of the Decision of the Board of Bar Examiners (SDCL 16-16-16).

No. 23260.

Supreme Court of South Dakota.

Argued March 21, 2005.

Decided May 11, 2005.

Daniel L. Jongeling, Rapid City, SD, for applicant, Yanni.

Jennifer K. Trucano, G. Verne Goodsell of Gunderson, Palmer, Goodsell & Nelson, L.L.P., Rapid City, SD, for intervenor, State Bar.

James D. Leach, Board of Bar Examiners, Rapid City, SD, and Craig M. Eichstadt, Board of Bar Examiners, Pierre, SD, for Board of Bar Examiners.

GILBERTSON, Chief Justice.

[¶ 1.] Amy Yanni is an attorney licensed to practice law in both Minnesota and Massachusetts. Yanni applied for admission to the South Dakota Bar without examination under SDCL 16-16-12.1, using her Massachusetts bar membership and almost twenty years of practice to fulfill the requirements. The South Dakota Board of Bar Examiners denied her request. Yanni challenged the denial, and attempted to use her Minnesota bar membership and experience to meet the required showing. The Board of Bar Examiners again denied her application. The denials stated that the Minnesota and Massachusetts reciprocity provisions did not allow South Dakota attorneys substantially similar admission without examination as required under SDCL 16-16-12.2(h), and therefore South Dakota's reciprocal admission without examination provision was not available to attorneys licensed in these two jurisdictions. Yanni appealed. Because of the significance of this issue to attorneys in this State, we granted intervention to the State Bar of South Dakota. We reverse and remand.

FACTS AND PROCEDURE

[¶ 2.] Amy Yanni (Yanni) graduated from Northeastern University School of Law in Boston, Massachusetts in 1985. Yanni took the Massachusetts bar examination in July 1985, and received a passing score. Yanni had previously taken the Multistate Professional Responsibility Examination (MPRE) in 1984, for which she also received a passing score. Yanni was admitted to practice law in the courts of Massachusetts on December 18, 1985, and remains a member in good standing.

[¶ 3.] After practicing law in Massachusetts for sixteen years, first in private practice for three years and then in public service for twelve, Yanni relocated to Minnesota in May 2001. She applied for admission to the Minnesota bar without examination based on her years of practice. Yanni was admitted to practice in Minnesota on September 7, 2001, and remains a member in good standing. Yanni practiced law in Minnesota for two years with Legal Services of Northwestern Minnesota before relocating to South Dakota.

[¶ 4.] Yanni moved to Rapid City, South Dakota, in 2003, and was hired as a paralegal by a law firm. At that time, Yanni was unable to obtain admission to the South Dakota Bar without taking the South Dakota bar examination. However, on January 1, 2004, SDCL 16-16-12.1 and 16-16-12.2 became effective allowing admission without examination under specific requirements.

[¶ 5.] On March 11, 2004, Yanni applied for admission to the South Dakota Bar using her Massachusetts bar membership and her twenty years of legal work to satisfy the requirements for admission without examination. As required, Yanni submitted a copy of the Massachusetts Rule, 3:01(6.1).¹ The Board of Bar Examiners² (Board) denied Yanni admission, informing her that she was not eligible for admission under SDCL 16-16-12.1 because the Massachusetts rule was not "substantially similar" to the South Dakota rule.

[¶ 6.] Yanni appealed the determination and requested consideration by the Board of Bar Examiners of her Minnesota bar membership as well as her Massachusetts bar membership. Along with her application materials, Yanni submitted the Minnesota court rules that allows admission without examination as required by SDCL 16-16-12.2(h).³ Once again the Board denied her application for admission without examination, stating that the rules of Minnesota and Massachusetts were not substantially similar to the South Dakota reciprocity rule.

[¶ 7.] Yanni appealed the Board's decision to this Court. She raises two issues for review:

1. Whether the Massachusetts and Minnesota rules allow South Dakota attorneys substantially similar admission without examination.

2. Whether the Board of Bar Examiners could impose "additional requirements" upon Minnesota and Massachusetts applicants short of requiring them to take the entire bar examination.

STANDARD OF REVIEW

[¶ 8.] We employ the de novo standard of review for questions of law in all bar admission cases. In re Application of Widdison, 539 N.W.2d 671, 675 (S.D.1995). The standard for the construction of statutes and court rules employed by this Court is well settled. Cf. State v. Myrl & Roy's Paving, Inc., 2004 SD 98, ¶ 6, 686 N.W.2d 651, 653-54

.

The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute.... Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Courts only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject.

Id. (citing Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611). "This court assumes that court rules mean what they say...." State v. Sorensen, 1999 SD 84, ¶ 14, 597 N.W.2d 682, 684 (quoting In re Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D.1984)).

ANALYSIS AND DECISION

[¶ 9.] Article V, Section 12 of the South Dakota Constitution provides that "[t]he Supreme Court by rule shall govern terms of courts, admission to the bar, and discipline of members of the bar." As the Court has the constitutional authority to supervise and regulate the legal system and members of the bar, "[t]his Court has authority to oversee all applications for admission" to the bar. In re Application of Widdison, 539 N.W.2d at 675 (citing In re Shemonsky, 379 N.W.2d 316, 318 (S.D.1985)).⁴ See also SDCL 16-3-9. Our court rules were adopted to protect the public from those unfit to practice the law, not to create a monopolistic property interest in the practice of law. State ex rel. Rice v. Conzad, 70 S.D. 193, 197, 16 N.W.2d 484, 486 (1944).

[¶ 10.] South Dakota's bar admission requirements have a unique and complicated history. The first statutory scheme for the admission of lawyers was enacted in 1893, and required an applicant pass "a satisfactory examination before the supreme court." 1893 SD Sess. Laws, ch. 21, § 2 (current version at SDCL 16-16-6 (2004)). The statutory scheme permitted admission without examination for attorneys previously licensed or admitted to practice by the supreme court of another state or the United States. Id. § 3.

[¶ 11.] Amendments were enacted in 1903, 1919, 1939, and 1960 that refined the admission requirements. However, no examination was required for attorneys previously licensed in another state until 1982, when SDCL 16-16-6 was amended to require all bar applicants, including those previously licensed in other jurisdictions, to successfully pass the South Dakota bar examination. 1983 SD Sess. Laws ch. 397 (Supreme Court Rule 82-24) (current version at 2004 SD Sess Laws ch 322 (Supreme Court Rule 03-21)).⁵ [¶ 12.] In 1903, the legislature instituted a diploma privilege for graduates of the University of South Dakota law program. SD Laws 1903, ch 77 (current version at SDCL 16-16-6 (2004)). John H. Davidson, Jr., John F. Hagemann, Bar Examination and Legal Education in South Dakota, The Bar Examiner Vol. 54, November 1984, at 16. Under the diploma privilege, USD law graduates were admitted to the South Dakota Bar without an examination requirement. SD Laws 1903, ch 77. All graduates of other law schools, and those who studied law in the "office of a member of the bar in regular practice," who sought admission to the South Dakota Bar had to be previously licensed in another state, or if not already licensed in another jurisdiction, such graduates had to take and pass the South Dakota bar examination. Id.⁶

[¶ 13.] The diploma privilege continued unchanged until 1957, when it was discontinued.⁷Davidson, supra at 16. The South Dakota Bar Association resurrected the issue of the diploma privilege in 1972. After a hearing before this Court, the privilege was reinstated retroactively to January 1, 1973. SD Sup Ct Rule 3 (1973); SDCL 16-16-6.1 (1983 Supp) (amended by 1983 SD Sess Laws ch 398 (Supreme Court Rule 82-25); repealed by 1987 SD Sess Laws ch 406 (Supreme Court Rule 86-32)); Davidson, supra. However, the diploma privilege was once again discontinued for graduates awarded a Juris Doctor after June of 1983, when USD law graduates were again required to sit for a bar examination. 1983 SD Sess Laws ch 398 (Supreme Court Rule 82-25) (repealed by 1987 SD Sess Laws ch 406 (Supreme Court Rule 86-32)). The traditional bar examination in 1983 consisted of the Multistate Bar Examination.⁸⁹ Applicants were also required to pass the Multistate Professional Responsibility Examination (MPRE).¹⁰Id. This resulted in a unique history and set of circumstances for those USD law graduates licensed in South Dakota prior to 1957, and those who graduated between the years of 1973 and 1983, who were never required to sit for a bar examination of any type, including the MPRE.¹¹

[¶ 14.] Whether the Massachusetts and Minnesota rules allow South Dakota attorneys substantially similar admission without examination.

[¶ 15.] "The intent of a statute `must be determined from the statute as a whole.'" Myrl & Roy's Paving, 2004 SD 98, ¶ 10, 686 N.W.2d at 655 (quoting Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d at 611). When interpreting a...