Moore, Matter of
| Decision Date | 07 July 1983 |
| Docket Number | No. 40A83,40A83 |
| Citation | 303 S.E.2d 810,308 N.C. 771 |
| Parties | In the Matter of Jerry Banks MOORE Applicant to The 1978 Bar Examination. |
| Court | North Carolina Supreme Court |
Vaughan S. Winborne, Raleigh, for applicant appellant.
Rufus L. Edmisten, Atty. Gen., by Asst. Atty. Gen. Harry H. Harkins, Jr., for Board of Law Examiners appellee.
In his first argument the applicant, Mr. Moore, maintains that the decision of the Board of Law Examiners dated 30 June 1982 is in violation of established procedural rules. The basis of this contention is that there was not a quorum of the members present and participating when critical decisions concerning his cause were made. In the alternative Mr. Moore asserts that the record lacks sufficient evidence from which a determination can be made that the Board was meeting and acting with a quorum of its members present.
The record indicates that the Board decided to restrict review of the applicant's cause on remand from this Court to those members of the Board who were present when the testimony was heard in July of 1978. This decision was noted in the Board's order of 21 August 1981 but the applicant did not contest the decision until the action was pending in Superior Court, Wake County after the Board's decision of 30 June 1982. Although the applicant argues that the record does not adequately show that a quorum of the Board was present when decisions critical to his cause were made, we hold that a letter sent by counsel for the Board asserting that a quorum was present and offering to provide affidavits of sworn testimony before Judge Hobgood is sufficient to establish that a quorum of the Board was present and participating when a decision was made on Mr. Moore's application.
The applicant contends that even if the record is sufficient to establish which members of the Board participated in the decision in his cause, those members of the Board which were present in July of 1978 at the original hearings do not constitute a quorum of the Board as it existed in June of 1982. The law in this State is that in the absence of a statutory rule to the contrary, a quorum is constituted when a majority of the membership is present. Edwards v. Board of Education, 235 N.C. 345, 70 S.E.2d 170 (1952). The Board of Law Examiners is comprised of eleven members of the Bar elected by the council of the North Carolina State Bar. G.S. 84-24. Any six of the eleven members of the Board may constitute a quorum. In reviewing the record we find that there were six members of the Board who participated in the decision of 30 June 1982 who were also present when testimony was heard in July of 1978. In addition, those same six members were present in August of 1981 when the Board denied Mr. Moore's request to offer several letters of reference written during May of 1981. Each of these actions, the decision of 30 June 1982 and the decision of 21 August 1981, were taken upon the unanimous vote of six members of the Board. As a result these actions were proper.
However, the record indicates that at a meeting of the Board on 15 May 1981, while eight members were present, only four of those members participating in Mr. Moore's case were present. Clearly any action taken by these four members would not be an action of the Board since four is neither a quorum nor a majority of the membership. Although any action taken by the Board in Mr. Moore's case on 15 May 1981 was not an official decision of the Board, it is not prejudicial since all rulings made on 15 May 1981 were favorable to the applicant.
We hold that the Board's decision to restrict review of Mr. Moore's application to those members who heard the live testimony was reasonable in light of the circumstances in this case where the credibility of the various witnesses was crucial to a fair determination. We also hold that a unanimous vote by six members of the eleven member Board constitutes an action by a quorum and a majority of the membership and any action by such a majority is proper.
The applicant next attacks the Board's findings of fact and conclusions as not being supported by substantial evidence. Specifically the applicant asserts that there was not substantial evidence to support the Board's findings: (1) that he threatened to kill a man named Barney Adler in 1966; (2) that he made belligerent statements to the secretary of a man with whom his wife was having a dispute; (3) that he lied under oath while testifying before the Board and (4) that he purposefully omitted a conviction for assault on a female from his application and registration forms in an attempt to mislead the Board. In reviewing the applicant's challenges to the Board's findings and conclusions we employ the " 'whole record' test to determine if they are supported by substantial evidence.' " In re Elkins, 308 N.C. 317, 302 S.E.2d 215, 217 (1983): see also In re Rogers, 297 N.C. 48, 253 S.E.2d 912 (1979). Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126, 140 (1938); accord, Commissioner of Insurance v. Automobile Rate Office, 287 N.C. 192, 214 S.E.2d 98 (1975). Under the "whole record" test we must review all the evidence, that which supports as well as that which detracts from the Board's findings, and determine whether a reasonable mind, not necessarily our own, could reach the same conclusions and make the same findings as did the Board. In re Elkins, 308 N.C. 317, 302 S.E.2d 215 (1983); Thompson v. Board of Education, 292 N.C. 406, 233 S.E.2d 538 (1977). The whole record indicates that there is substantial evidence to support the Board's findings and conclusions.
The Board found that the applicant, Mr. Moore, threatened to kill Mr. Barney Adler on or about 13 August 1966. Aside from the fact that Mr. Moore killed Barney Adler on 29 August 1966, the Board heard testimony from...
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