Monaghan, In re

• Decision Date: 03 January 1961
• Docket Number: No. 1909,1909
• Citation: 122 Vt. 199,167 A.2d 81
• Parties: In re Carleton N. MONAGHAN.
• Court: Vermont Supreme Court

Page 81

167 A.2d 81

122 Vt. 199

In re Carleton N. MONAGHAN.

No. 1909.

Supreme Court of Vermont.

Jan. 3, 1961.

Carleton N. Monaghan, pro se.

Board of Bar Examiners, pro se.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

SHANGRAW, Justice.

This is a petition addressed to this Court seeking an order directing that the Board of Bar Examiners permit the petitioner to take the 1960 bar examinations of this state.

The petitioner, a resident of St. Albans, Vermont, is an applicant for admission as an attorney of the courts of this state. Having complied with the required period of study, on May 25, 1959 he filed a petition for admission to the bar, by examination. Following an investigation made by the Board of Bar Examiners on August 18, 1959, he was denied the privilege of taking the bar examinations to be held during October 1959. The reason for this refusal was that the Board was unable to favorably certify as to the moral character and fitness for admission of the applicant. A petition to reconsider its action was filed with the Board by Mr. Monaghan and again the Board declined to permit the applicant to take the bar examinations. During July 1960 and applicant requested a reinstatement of his 1959 application for admission. A further investigation was made by the Board and it again refused the applicant the privilege of taking the examinations, giving as reasons therefor that it was unable to favorably certify as to the applicant's moral character and fitness for admission as required by the Rules of this Court.

The petitioner then filed with this Court a petition seeking a mandate to compel the Board of Bar Examiners to permit him to take the 1960 bar examinations to be given by the Board during the month of October. The Court issued its order September 20, 1960 directing that the Board submit a report on the nature and result of its investigation of the petitioner pursuant of Supreme Court Rule 25, subd. 2. This report was filed October 4, 1960. At the time a hearing was had before this Court on this petition and report of the Board the petitioner appeared pro se. All members of the Board also appeared excepting one.

4 V.S.A. § 841 provides that 'Justices of the supreme court shall make, adopt and publish and may alter or amend rules regulating the admission of attorneys to the practice of law before the courts of this state.' The following section, 4 V.S.A. § 842 provides for a board of bar examiners consisting of six persons, to be appointed by this Court.

By virtue of 4 V.S.A. § 841 this court has promulgated rules relating to the admission of attorneys to practice law in this state. Supreme Court Rules, rules 23-27, inclusive. The rules prescribe certain educational requirements, period of study, subjects to be examined upon, etc., which examination of applicants shall be had each year during the week preceding the opening of the November General Term of this court. Rule I in part provides that each applicant for admission must be 'of good moral character.' In determining each applicant's fitness for admission Rule 25, subd. 2 provides:

'The board of examiners shall satisfy themselves that each applicant has complied with the rules entitling him to take the examination and shall make a thorough investigation respecting the applicant's moral character and fitness for admission and report to the court the nature and result of such investigation. * * *'

The following is a summary of the report made by the Board of Bar Examiners to this Court. Upon receipt of Mr. Monaghan's application for admission to the bar, by examination, an investigation was made by a member of the Board and a report made at its meeting on July 17, 1959. A routine check disclosed several infractions of the law by the applicant. This information, together with conversations had with attorneys interviewed convinced the board that a special investigation of a more detailed nature should be made. This was done by the same member of the Board, who, at a meeting of the Board held on August 18, 1959 disclosed that the applicant had been summoned into the Franklin Municipal Court charged with the following offenses alleged to have taken place on March 15, 1952. (1) intoxication, (2) assaulting and beating his wife, and (3) intentionally pointing a firearm at his son. The first and third charges were nol prossed. The applicant pleaded guilty to the second offense and was sentenced to not less than one nor more than two years in the House of Correction, and pay a fine of $25 and costs. The House of Correction sentence was suspended and the respondent placed on probation.

On January 31, 1955 the applicant was arraigned in Franklin Municipal Court for an alleged violation of the law of the road resulting in property damage to which charge a plea of nolo was entered and he was fined $25 and costs.

The applicant was again before the Franklin Municipal Court charged with the following as having taken place on July 13, 1959; (1) intoxication; (2) driving while intoxicated; and (3) careless and negligent driving. Following the accident the applicant was requested to take a blood test. He refused and his license was suspended under the statute, 23 V.S.A. § 1191. The applicant was arrested at the scene of the accident and spent one or two nights in the Franklin County Jail. He subsequently pleaded either nolo or guilty to careless and negligent driving and was fined $100 and costs. The other charges were nol prossed.

As a part of the investigative process a superior judge and three prominent lawyers in St. Albans were interviewed by a member of the Board, all of whom knew the applicant and his history. None of those interviewed would give an unqualified endorsement of the applicant's moral character and fitness. Some of them expressed strong convictions against his admission on these grounds.

The applicant was advised that the Board was unable to certify his moral character and fitness and invited him to meet the Board on September 10, 1959. The applicant appeared and submitted himself to examination. The Board also heard his wife in support of her husband's application. The records in the Franklin Municipal Court were not disputed, nor the integrity of any of the persons interviewed.

At his request the applicant was granted permission to file a petition for reconsideration. The Board again met on September 18, 1959 and considered the applicant's application the fourth time, including his petition for reconsideration. The Board voted that it could not certify that the applicant had the moral character and fitness for admission required by the Rules, and therefore refused to permit him to take the examinations. Notice of its action was given to the applicant.

During the month of October 1959 the Chairman of the Board received several letters from various people, apparently written at the request of the applicant. All but one of the letters were favorable to the applicant regarding his character. One letter favorable to the applicant was withdrawn by its author. In the Fall of 1959 two people, separately and at different times, advised the Chairman that they had been requested by the applicant to write letters recommending his moral character and fitness for admission but were unable to do so.

On July 5, 1960 the applicant filed a request for reinstatement of his 1959 petition for admission, and, although not in conformity with the Rules and not filed within the time limited by Rule 25, subd. 1, the Board agreed to treat the filing of the same as timely. The 1960 petition of this applicant was considered by the Board at its meeting on July 15, 1960. At that meeting, the Board reviewed all of the evidence, including all of the letters received by the Chairman in October, 1959, and voted unanimously that it was still unable to certify the moral character and fitness of the applicant for admission as required by the Rules. The applicant was so notified July 18, 1960 and his fee of $10 was returned.

The Chairman of the Board conferred with the applicant during the third week of July, 1960, advising him of the adverse action of the Board and suggested the possibility of a judicial review. The Chairman urged the applicant to file such a petition, if he cared to do so, at least by the first of August, 1960, in order that the matter might be brought before the Supreme Court in time for its consideration at the September Term. The applicant's petition states the reasons why this was not done, without reflecting any fault on the part of the Board, or the applicant.

We have reviewed the report in detail thereby indicating the time devoted to the application by the Board, the extent and nature of its investigation, the opportunity afforded the applicant to present evidence in his favor, and generally the course of events leading up to the petition now considered. It goes without saying that this matter is of utmost importance to the petitioner, as well as to the public generally, and we consider it in that light.

The petitioner in general claims that the action of the Board in denying his request for admission, by examination, was arbitrary, oppressive, unconstitutional, unreasonable, erroneous, and seeks relief under Article Four of Chapter One of the Constitution of the State of Vermont. This Article reads:

'Every person within the state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property or character; he ought to obtain right and justice, freely, and without being obliged to purchase it; completely and without any denial; promptly and without delay, conformably to the laws.'

The petitioner in his petition specially assigns the following specifications of error. He first claims that while his character was in issue the Board failed to apply to this issue the settled...