Levy, Application of

• Decision Date: 30 August 1945
• Docket Number: C. D. 2902,2900.
• Citation: 23 Wn.2d 607,161 P.2d 651
• Parties: Application of LEVY. In re WARNOCK.
• Court: Washington Supreme Court

161 P.2d 651

23 Wn.2d 607

Application of LEVY. In re WARNOCK.

Nos. C. D. 2902, 2900.

Supreme Court of Washington, En Banc.

August 30, 1945

Rehearing Denied Oct. 22, 1945.

Original proceedings in the matters of the application of Major Robert E. Levy for admission to practice law and membership of the Washington State Bar Association and the admission of Staff Sergeant John M. Warnock to the practice of law. On applicants' motions for immediate admission to practice and Major Levy's request for amendment of rule 26 of the Supreme Court Rules for Admission to Practice.

Motions and request denied.

GRADY MALLERY, and BLAKE, JJ., dissenting.

ROBINSON Justice.

Oral argument on behalf of the moving parties in the above entitled matters was heard on July 16, 1945, by the court sitting en banc. Although there are factual differences in the two cases, since the major question presented is inherent in both, they will be decided in one opinion.

Both Major Levy and Staff Sergeant Warnock move for immediate admission to practice at the bar of this state. Each of them concedes that he does not meet the requirements of Rule XXVI of the rules of this court concerning the admission of veterans, adopted by the court on February 13, 1945. Each alleges, however, and each submits adequate proof of those allegations, that he does meet the requirements of chapter 181, Laws of 1945, enacted by both houses of the legislature on March 6, 1945, and approved by the governor shortly thereafter, and each presents convincing evidence that he was assigned to legal work in the Army and performed it with distinction. However, when it comes to the theory upon which the granting of admission is urged, there is the widest possible divergence. It is contended by counsel for Sergeant Warnock that the statute, having been passed after the promulgation of the rule, controls the matter, and that his client is entitled to be forthwith admitted to the practice of law in this state as a matter of right. Major Levy's counsel, on the other hand, concedes that, by overwhelming legal authority, the court rule is controlling since the exclusive power to admit attorneys is inherent in the courts of which they seek to be made officers, and prays that Major Levy be forthwith admitted, in the exercise of that inherent power. Realizing that the court cannot, without undue and unlawful discrimination, make an exception to the rule in favor of an individual applicant for admission, he accompanies his client's motion with a supplementary document or pleading entitled: 'In the matter of a request for an amendment of Rule 26 of the Supreme Court Rules.'

It follows from the foregoing analysis that the first question presented is whether the court rule is abrogated or superseded by the legislative act. If it is, both applicants are entitled to admission. If it is not, the second question presented is whether this court should amend the rule in order to render Major Levy, and other persons similarly situated, admissible to practice.

The text of the court rule is permanently recorded in 21 Wash.2d on the page immediately preceding the first reported case therein, and reads as follows:

'Admission to Practice--Veterans.

'Subject to existing requirements in respect to citizenship, residence, and character qualifications, an applicant shall be admitted without examination if

'(a) he entered the active military or naval service of the United States or a cobelligerent after September 1, 1940, served in such active service for at least one year, and was discharged or released from active duty under conditions other than dishonorable; and

'(b) the applicant (i) was graduated from an approved law school Before entering active service and after the bar examination next preceding his entry into such service, or (ii) was graduated from an approved law school while in such service, or (iii) had satisfactorily completed three full years of study at either the University of Washington Law School or the Gonzaga University Law School at the time of entering active service and has subsequently been graduated from such school; and

'(c) the applicant was a resident of the state of Washington at the time of graduation from law school, if such graduation preceded his entry into active service or, if not, at the time of entering such service; and

'(d) subsequent to such discharge or release the applicant has completed to the satisfaction of the dean a refresher course of at least six months duration at either the University of Washington Law School or the Gonzaga University Law School; and

'(e) the applicant has not previously failed the bar examination of this or any other state.'

Chapter 181, Laws of 1945, p. 509, is an act making additions to the existing statute regulating admission to practice. In the interests of brevity, in quoting these additions, we omit the formal introductory matter:

'Section 7-A. Any person who shall have graduated from any accredited law school and after such graduation shall have served in the Armed Forces of the United States of America between December 7, 1941, and the termination of the present World War, may be admitted to the practice of law in the State of Washington and to membership in the Washington State Bar Association, upon motion made Before the Supreme Court of the State of Washington, provided the following is made to appear: (Italics ours.)

'(a) That the applicant is a person of good moral character over the age of twenty-one (21) years;

'(b) That the applicant, at the time of entering the Armed Forces of the United States, was a legal resident of the State of Washington.

'(c) That the applicant's service in the Armed Forces of the United States is or was satisfactory and honorable.'

Section 7-B prescribes the method of proof if the applicant is still in the Armed Forces.

Section 7-C prescribes the method of proof if the applicant has been discharged from the Armed Forces.

Sections D and E are not relevant to our present inquiry; but there is another added section which, while it has no direct relevance to the parties now Before us, has, as will be later shown in this opinion, a definite bearing upon the main question which their applications present for decision:

'Section 7-F. Any person who has served as presiding officer of either the House of Representatives or the Senate of the State of Washington as Speaker of the House or President of the Senate for six (6) consecutive regular sessions of the Legislature may be admitted to the practice of law in the State of Washington and to membership in the Washington State Bar Association without examination, upon motion made Before the Supreme Court of the State of Washington.' (Italics ours.)

A comparison of the court rule with the legislative act at once shows that the rule contemplates admission after the student has returned from service, while the act permits admission while he is still in service. The rule applies to persons who entered service after September 1, 1940; the act, to persons who served after December 7, 1941. But the vital difference in the requirements is this: Under the provisions of the legislative act, the applicant may be admitted on presentation of a diploma from an approved law school, while, under the rule, he cannot be admitted on his diploma alone. He must, in addition, have either passed a regular bar examination or have completed a six months' refresher course at the University of Washington or the Gonzaga University law school. There are other requirements in the rule that are not made in the act. The privilege of being admitted without examination, if a refresher course be taken, is not extended to persons in the service who have previously failed the bar examination of this or any other state. Nor can one receive the benefits of the rule if he graduated in time to have taken the bar examination Before entering naval or military service.

It is apparent that Sergeant Warnock cannot qualify under the rule, since he has neither passed a bar examination nor taken a refresher course. Major Levy also has neither passed an examination nor taken a refresher course. He cannot qualify under the rule, for several other reasons: His record, as presented to us, shows that he twice took, and failed to pass, the Washington State Bar examination eleven years ago, and, if we understand the record rightly, he entered military service prior to September 1, 1940. Furthermore, the diploma upon which he bases his motion for admission was awarded him more than seven years ago, and at least several bar examinations were held Before he entered military service.

For reasons that will be hereinafter set out, we think that the question as to whether or not the legislative act supersedes the court rule is somewhat academic. However, Sergeant Warnock's earnest contention that, as a matter of law, he is entitled to admission by virtue of the provisions of the legislative act, deserves the courtesy of examination and 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 P. 906.' It will be noted that a former decision of this court is cited as authority for the propositions above quoted from the California decision. This court had said the equivalent as early as in In re Lambuth, 18 Wash. 478, 51...