McVicar v. State Board of Law Examiners
Citation | 6 F.2d 33 |
Decision Date | 23 May 1925 |
Docket Number | No. 245.,245. |
Court | United States District Courts. 9th Circuit. United States District Court (Western District of Washington) |
Parties | McVICAR v. STATE BOARD OF LAW EXAMINERS et al. |
Joseph M. Glasgow, of Seattle, Wash., for complainant.
John H. Dunbar, Atty. Gen., and R. G. Sharpe, Asst. Atty. Gen., for defendants.
Before GILBERT, Circuit Judge, and CUSHMAN and WEBSTER, District Judges.
The purpose of this suit is to enjoin the Attorney General of the state of Washington from prosecuting, and the state board of law examiners of that state from hearing, disbarment charges preferred against the complainant, a member of the bar of this state, pursuant to the provisions of chapter 126, p. 407, Laws 1921, upon the ground that this statute is unconstitutional, in that it deprives the complainant of his property — the right to practice his profession — without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States, the case having been presented to three judges as provided by section 266 of the Judicial Code (Comp. St. § 1243), and submitted on the motion of the complainant for a temporary injunction and the counter motion of the defendants to dismiss the bill for want of equity.
The original statute of the state of Washington, creating a state board of law examiners and defining its powers and duties, was enacted in 1917, being chapter 115 of the Session Laws of that year. This act provided in substance that all complaints alleging acts of immoral or unprofessional conduct on the part of members of the bar of this state should be filed with the board by any person knowing of such acts or conduct, or by the board itself upon its own motion, and upon presentation of such charges, if deemed by the board sufficient to invoke action, notice was required to be given the attorney complained against, fixing the time and place for hearing the charges so preferred. Ample and comprehensive procedure was defined for issuing subpœnas, the taking of testimony, and the conducting of the proceedings generally. The act further provided that the board should make findings upon the evidence produced, and should, if it deemed justified, suspend or annul the license of such attorney to practice law. It also provided that any person whose license had been annulled or revoked by the board might petition the Supreme Court of the state to review the findings of the board, and to reverse or modify the same upon proper showing. It will be noted that this statute undertook to confer upon the board the power to take final action in the cases brought to its attention, subject only to the right of the attorney involved to petition the Supreme Court for a reversal or a modification of the orders made by the board. In the absence of such petition the action of the board was final and conclusive.
The first case calling for the construction and application of this statute to reach the Supreme Court of Washington was the case of In re Bruen, 102 Wash. 472, 172 P. 1152. It was considered by the whole court, and the conclusions reached were that, the power to hear and determine the right of an attorney to practice law being inherently judicial, that portion of the act giving the board power to hear and determine disbarment proceedings created a judicial tribunal in violation of the Constitution of Washington; that the act, though unconstitutional in so far as it authorized the board to render final judgment of disbarment, subject to review by the Supreme Court, was valid as to the delegated legislative and administrative functions conferred upon it, and authorized the board to hear and pass upon the evidence adduced, and to report the same to the Supreme Court for appropriate action, the valid being separable from the invalid portions of the act. In the course of the opinion it is said:
The next case arising under this statute to engage the attention of the Supreme Court of Washington was In re Gill, 104 Wash. 160, 176 P. 11, in which this language is found:
From this it will be seen that the court regarded the board as merely an "intermediary agency" for the taking of evidence and reporting thereon, and that the order finally entered reflected the independent judgment of the court, uninfluenced either in whole or in part by the action taken by the board.
Next in chronological order is the case of In re Mills, 104 Wash. 278, 176 P. 556, wherein the court said: "The constitutional questions raised by the defendant are disposed of against his contentions in In re Bruen, 102 Wash. 472, 172 Pac. 1152, and need not be here considered." In this case, also, the court considered the...
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