Nielsen v. Washington State Bar Ass'n, No. 45314

CourtUnited States State Supreme Court of Washington
Writing for the CourtHAMILTON; HICKS; WRIGHT
PartiesSteen NIELSEN, Petitioner, v. WASHINGTON STATE BAR ASSOCIATION et al., Respondents.
Docket NumberNo. 45314
Decision Date02 November 1978

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.

Page 819

[585 P.2d 1192] 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

Page 820

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).

[585 P.2d 1193] 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

Page 821

(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

Page 822

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 [585 P.2d 1194] 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.

Page 823

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, §...

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36 practice notes
  • In re Personal Restraint of Dyer, No. 79872-9.
    • United States
    • United States State Supreme Court of Washington
    • August 7, 2008
    ...Schaaf, at 17, 743 P.2d 240 (quoting Phelan, at 512, 671 P.2d 1212 (quoting Nielsen v. Washington State Bar Ass'n, 90 Wash.2d 818, 820, 585 P.2d 1191 State v. Heiskell, 129 Wash.2d 113, 123-24, 916 P.2d 366 (1996) (alterations in original) (quoting Westerman v. Cary, 125 Wash.2d 277, 294-95......
  • Tunstall ex rel. Tunstall v. Bergeson, No. 67448-5.
    • United States
    • United States State Supreme Court of Washington
    • July 27, 2000
    ...the statute is necessary to achieve a compelling governmental interest. See Nielsen v. Washington State Bar Ass'n, 90 Wash.2d 818, 820, 585 P.2d 1191 (1978). The State has failed to carry its The majority reads Wash. Const. art. IX, § 2 as establishing a fundamental right to a "common schoo......
  • Westerman v. Cary, No. 60383-9
    • United States
    • United States State Supreme Court of Washington
    • November 22, 1994
    ...at 17, 743 P.2d 240 (quoting Phelan, 100 Wash. at 512, 671 P.2d 1212 (quoting Nielsen v. Washington State Bar Ass'n, 90 Wash.2d 818, 820, 585 P.2d 1191 (1978))). Under the rational basis test, a statute is constitutional if (1) the legislation applies alike to all persons within a designate......
  • American Network, Inc. v. Washington Utilities and Transp. Com'n, No. 54608-8
    • United States
    • United States State Supreme Court of Washington
    • July 13, 1989
    ...Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1104-05, 6 L.Ed.2d 393 (1961); Nielsen v. Washington State Bar Ass'n, 90 Wash.2d 818, 820, 585 P.2d 1191 (1978)), appeal dismissed, 464 U.S. 957, 104 S.Ct. 386, 78 L.Ed.2d 331 (1983), and the challenger bears a heavy burden to show there is no ......
  • Request a trial to view additional results
36 cases
  • In re Personal Restraint of Dyer, No. 79872-9.
    • United States
    • United States State Supreme Court of Washington
    • August 7, 2008
    ...Schaaf, at 17, 743 P.2d 240 (quoting Phelan, at 512, 671 P.2d 1212 (quoting Nielsen v. Washington State Bar Ass'n, 90 Wash.2d 818, 820, 585 P.2d 1191 State v. Heiskell, 129 Wash.2d 113, 123-24, 916 P.2d 366 (1996) (alterations in original) (quoting Westerman v. Cary, 125 Wash.2d 277, 294-95......
  • Tunstall ex rel. Tunstall v. Bergeson, No. 67448-5.
    • United States
    • United States State Supreme Court of Washington
    • July 27, 2000
    ...the statute is necessary to achieve a compelling governmental interest. See Nielsen v. Washington State Bar Ass'n, 90 Wash.2d 818, 820, 585 P.2d 1191 (1978). The State has failed to carry its The majority reads Wash. Const. art. IX, § 2 as establishing a fundamental right to a "common schoo......
  • Westerman v. Cary, No. 60383-9
    • United States
    • United States State Supreme Court of Washington
    • November 22, 1994
    ...at 17, 743 P.2d 240 (quoting Phelan, 100 Wash. at 512, 671 P.2d 1212 (quoting Nielsen v. Washington State Bar Ass'n, 90 Wash.2d 818, 820, 585 P.2d 1191 (1978))). Under the rational basis test, a statute is constitutional if (1) the legislation applies alike to all persons within a designate......
  • American Network, Inc. v. Washington Utilities and Transp. Com'n, No. 54608-8
    • United States
    • United States State Supreme Court of Washington
    • July 13, 1989
    ...Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1104-05, 6 L.Ed.2d 393 (1961); Nielsen v. Washington State Bar Ass'n, 90 Wash.2d 818, 820, 585 P.2d 1191 (1978)), appeal dismissed, 464 U.S. 957, 104 S.Ct. 386, 78 L.Ed.2d 331 (1983), and the challenger bears a heavy burden to show there is no ......
  • Request a trial to view additional results

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