Nielsen v. Washington State Bar Ass'n

• Decision Date: 02 November 1978
• Docket Number: No. 45314,45314
• Citation: 90 Wn.2d 818,585 P.2d 1191
• Parties: Steen NIELSEN, Petitioner, v. WASHINGTON STATE BAR ASSOCIATION et al., Respondents.
• Court: Washington Supreme Court

Page 818

90 Wn.2d 818

585 P.2d 1191

Steen NIELSEN, Petitioner, v. WASHINGTON STATE BAR ASSOCIATION et al., Respondents.

No. 45314.

Supreme Court of Washington, En Banc.

Nov. 2, 1978.

John A. Strait, Seattle, for petitioner.

Washington State Bar Association, Kurt M. Bulmer, Gen. Counsel, Seattle, for respondents.

HAMILTON, Justice.

Petitioner Steen Nielsen seeks permission to sit for the Washington State Bar Examination and, upon successful completion thereof, to be admitted to the practice of law.

Petitioner was born in Denmark in 1953. In 1960, he, with his family, immigrated to the United States. Since that time he has been a duly registered permanent resident alien; however, he has not filed a declaration of intent to become a citizen and presently has no plans to do so.

Petitioner received his elementary and secondary education in this country, attended and graduated from Yale University, New Haven, Connecticut, and the University of Puget Sound School of Law. Upon completion of his legal education, he sought permission to take the Washington State Bar Examination.

In accord with Admission to Practice Rules, the respondent Bar Association's representative informed petitioner that because he was a permanent resident alien not in the process of becoming a citizen, he would not be allowed to sit for the examination. He was also informed that, should his citizenship status change in conformity with APR 2(B)(2), he would otherwise be eligible to take the examination.

Petitioner then requested that this court waive the rule which operates to exclude him from participating in the examination. We did so pending resolution of the legal challenge presented by this case.

Petitioner argues APR 2(B)(2) violates the equal protection guarantees of the fourteenth amendment to the United States Constitution and Const. art. 1, § 12. We agree. Our reasons for doing so are set forth below.

At the outset of any equal protection analysis, it is necessary to identify the appropriate standard of judicial scrutiny. We note therefore that a statute or rule which does not affect fundamental rights or create a suspect classification is generally subjected to minimal judicial scrutiny and will not be invalidated unless it rests on grounds wholly irrelevant to the achievement of a legitimate state objective. McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). If, however, a statute or rule creates an inherently suspect classification such as one based upon race, nationality, or alienage, when challenged, it will be subjected to strict judicial scrutiny. Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). The enactment will not be upheld unless the state establishes a compelling interest. And, to do so, the state must show its purpose or interest in the enactment is both constitutionally permissible and substantial, and that use of the classification is necessary to the accomplishment of its interest. In re Griffiths, 413 U.S. 717, 721-22, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973).

Respondent argues minimal scrutiny should be applied to APR 2(B)(2) because it excludes only those aliens who fail to declare an intent to become citizens. APR 2(B)(2) states:

B. Qualifications

A general applicant, in order to be permitted to take the bar examination, must (2) Be either: (a) a citizen of the United States, or (b) an alien permanently residing in the United States in accordance with Federal Immigration and Naturalization Law who has legally declared his intent to become a citizen and is proceeding with due diligence toward naturalization;

In Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977), the United States Supreme Court subjected a classification very similar to APR 2(B) (2) to strict scrutiny. ¹ In so doing, the Court expressly rejected the argument that a statutory classification which affects only those aliens who fail to declare the intent to become citizens was not inherently suspect. The Court stated:

The important points are that § 661(3) is directed at aliens and that only aliens are harmed by it. The fact that the statute is not an Absolute bar does not mean that it does not discriminate against the class.

(Italics ours. Footnote omitted.) Nyquist v. Mauclet, supra at 9, 97 S.Ct. at 2125. See Surmeli v. New York, 412 F.Supp. 394 (S.D.N.Y.1976), Aff'd, 436 U.S. 903, 98 S.Ct. 2230, 56 L.Ed.2d 400 (May 16, 1978).

Similarly, APR 2(B)(2), although not an absolute barrier to membership in the bar, is directed at and harms only aliens. Thus, under Mauclet, strict judicial scrutiny is appropriate unless some exception is applicable.

The only recognized exception to the use of strict scrutiny in cases where a classification is based upon alienage is that found in Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978) (citizenship requirement approved for police officers). It applies to classifications respecting the qualifications of jurors, Perkins v. Smith, 370 F.Supp. 134 (D.Md.1974), Aff'd, 426 U.S. 913, 96 S.Ct. 2616, 49 L.Ed.2d 368 (1976), and elective or important nonelective officials who participate directly in the formulation, execution, or review of broad public policy. Foley v. Connelie, supra; see Nyquist v. Mauclet, supra at 11, 97 S.Ct. 2120; Sugarman v. Dougall, 413 U.S. 634, 647, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973). ²

If Foley is read together with Griffiths, as it must be read, the narrowness of the above exception becomes clear. In Griffiths, despite recognition of the vital role of the attorney, the Court used strict scrutiny to invalidate a rule limiting the practice of law to citizens. Then, in Foley, the Court acknowledged that strict scrutiny was applicable in Griffiths. It distinguished Griffiths and the right to practice a licensed profession (law) from classifications involving policy responsibilities, the discretionary exercise of which affects the lives of citizens. The Foley court stated the exception to the use of strict scrutiny was applicable where a classification reflected the right of citizens to be governed by citizens. But, the Court made it clear the exception is Inapplicable where a challenged rule impacts the right to earn a livelihood, at least where earning that livelihood does not presently involve aspects of the right to govern. Foley v. Connelie, supra.

The responsibilities of one who earns a livelihood as a lawyer do not involve unique matters which lie at the heart of our political institutions and justify a citizenship requirement. In re Griffiths, supra; Foley v. Connelie, supra. And the remote possibility of election to the bench does not warrant describing Every attorney as one whose responsibilities involve the right to govern.

In light of Mauclet, Foley, and Griffiths, it appears beyond question that APR 2(B)(2) must be subjected to strict judicial scrutiny. Strict scrutiny is in full accord with our long-standing recognition that constitutional guarantees do not acknowledge distinctions between citizens and resident aliens. Herriott v. Seattle, 81 Wash.2d 48, 500 P.2d 101 (1972). In Herriott, we adopted the view that any classification which treats all aliens as undeserving and all United States citizens as deserving rests upon a very questionable basis. ³ We recognized that we have long since passed the time in history when resident aliens were to be subjected to unnecessary discrimination.

The court is not alone in this recognition. We observe that Washington's voters in 1966 chose to repeal Const. art. 2, § 33, a prohibition against the ownership of land by aliens who did not intend to become citizens. Const. amend. 42, repealing Const. art. 2, § 33 (amendments 24 and 29). By doing so, they, like the courts, impliedly took cognizance of the fact that citizenship is not closely related to many of life's pursuits. Thus, they recognized that a prohibition against the ownership of land which affected the concurrent right to earn a livelihood from the land was unnecessary discrimination. Clearly, the right to be free of discrimination at least in the absence of a compelling state interest is basic in our society.

Therefore, we must now examine the substantiality of the state's interest in APR 2(B)(2) and the limits within which its discrimination against aliens is confined. Sugarman v. Dougall, supra at 642, 93 S.Ct. 2842. APR 2(B)(2) is valid only if its discrimination is a Necessary implement of Compelling state interest. In re Griffiths, supra at 723, 93 S.Ct. 2851.

It is beyond argument that the state has an obvious, constitutionally permissible, and substantial interest in the character and general fitness requisite for an attorney. In re Griffiths, supra; see Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971). To insure its interest, the state may exclude from the practice of law persons unfit by reason of insufficient learning or poor character. In re Schatz, 80 Wash.2d 604, 497 P.2d 153 (1972); In re Krogh, 85 Wash.2d 462, 536 P.2d 578 (1975). But in this case no question is raised as to petitioner's good character or general fitness. Rather, the sole basis for respondent's refusal of petitioner's request to sit for the bar examination was that he was not in the process of becoming a citizen.

Respondent asserts that this refusal pursuant to APR 2(B)(2) is necessary. Its argument regarding the necessity of excluding aliens mirrors its argument dealing with the appropriate level of scrutiny. Respondent contends that the unique position of an attorney in society justifies a classification which excludes from the practice of law those persons who do not intend to become citizens. As it did in support of its first argument, respondent relies on the Foley case which sanctions classifications based on citizenship status for jurors, voters, and law enforcement officers.

As we have pointed out, the basis for...