McVicar v. State Board of Law Examiners

Citation6 F.2d 33
Decision Date23 May 1925
Docket NumberNo. 245.,245.
CourtUnited States District Courts. 9th Circuit. United States District Court (Western District of Washington)
PartiesMcVICAR 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.

WEBSTER, District Judge.

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:

"We are of the opinion that this court, having been exclusively vested with the power of admitting attorneys to practice, may also be exclusively vested with the power of disbarring attorneys from practice. While it is a matter of great importance to the private practitioner, it is also a matter of great public concern. Having the sole and exclusive power in such matter, not prohibited by any constitutional provision, and not infringing in any way upon any legislation of the state, except that part of chapter 115 last discussed, the Legislature provided an intermediary agency whereby the power of the court could be more generally and efficiently exercised. To that extent the legislation was warranted and valuable. The invalid portion is manifestly separable from the valid portions of the act, which may therefore be sustained.

"There is no merit in the contention that the legislation takes property or property right without due process of law, in violation of the state and federal Constitutions. Notice and hearing are provided for, and the final hearing will be speedily had in the court of last resort of the state, without any considerable expense to the person accused. This meets every requirement of the Constitutions. We hold, therefore, that the act is in all respects constitutional, except the provision for a final order or judgment of disbarment by the board of law examiners. It will be their duty henceforth, upon proceeding against any person accused under the act, to have a hearing and report their findings to this court. No judgment or order shall be made by them, but the matter shall be determined and reviewed by this court in accordance with the rules which we have already adopted."

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:

"The proceedings were had before the board in pursuance of chapter 115, p. 421, Laws of 1917. Our recent decision in In re Bruen, 102 Wash. 472, 172 Pac. 1152, interpreting that law in the light of the Constitution and the inherent power of this court relating to the disbarment and disciplining of attorneys as officers of the courts, makes it our duty to dispose of the cause upon the evidence produced before the board and reported to us, and also upon the findings of the board, except in so far as we may conclude that the latter are not supported by the evidence."

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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10 cases
  • In re Edwards
    • United States
    • Idaho Supreme Court
    • March 3, 1928
    ...its findings, conclusions and recommendations in the supreme court, where a still further hearing is provided for. In McVicar v. State Board of Law Examiners, 6 F.2d 33, it was held that a statute which authorized a member of similar board to prefer charges against an attorney, and then to ......
  • United States Building & Loan Association v. France
    • United States
    • Idaho Supreme Court
    • October 25, 1935
    ... ... (Knight v. Trigg, 16 Idaho 256, ... 100 P. 1060; Gillesby v. Board of Commrs., 17 Idaho ... 586, 107 P. 71; State v. Bird, 29 Idaho 47, 156 ... 278, 176 P. 556; In re ... Ward, 106 Wash. 147, 179 P. 76; McVicar v. State ... Board of Law Examiners, (D. C.) 6 F.2d 33; In re ... ...
  • Trask, In re
    • United States
    • Hawaii Supreme Court
    • March 29, 1963
    ...60 A.L.R. 851; In re Petersen, 208 Cal. 42, 280 P. 124; In re Goldstone, 214 Cal. 490, 6 P.2d 513, 80 A.L.R. 701; McVicar v. State Board of Law Examiners, W.D.Wash., 6 F.2d 33. The exception particularly stressed by respondent is his exception No. 1 reading as 'That in the proceedings upon ......
  • Williams v. Mayor and Bd. of Aldermen of City of Atlanta
    • United States
    • Georgia Court of Appeals
    • July 9, 1968
    ...This has been held to violate no constitutional right or to raise no presumption of unfairness in the proceedings. McVicar v. State Board of Law Examiners, D.C., 6 F.2d 33. But see Clary v. Mathews, 224 Ga. 82, 160 S.E.2d 338. 'The spectacle of an administrative tribunal acting as both pros......
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