Smith v. Davis

• Decision Date: 06 November 1972
• Docket Number: Civ. A. No. 72-145-CH.
• Citation: 350 F. Supp. 1225
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Donald Rexford SMITH, Individually, and on behalf of all others similarly situated, Plaintiffs, James E. Parker et al., Intervening Plaintiffs, v. Fred L. DAVIS, President, et al., Defendants.

350 F. Supp. 1225

Donald Rexford SMITH, Individually, and on behalf of all others similarly situated, Plaintiffs James E. Parker et al., Intervening Plaintiffs, v. Fred L. DAVIS, President, et al., Defendants.

Civ. A. No. 72-145-CH.

United States District Court, S. D. West Virginia, Charleston Division.

November 6, 1972.

Brown H. Payne, Beckley, W. Va., for Smith.

Paul J. Kaufman and Edwin R. McClelland, Charleston, W. Va., for intervening plaintiffs.

Richard E. Hardison, Asst. Atty. Gen., of W. Va., with Chauncey H. Browning, Jr., Atty. Gen., Charleston, W. Va., for defendants.

Before FIELD, Circuit Judge, and KNAPP and HALL, District Judges.

MEMORANDUM ORDER

PER CURIAM.

Plaintiff, Donald Rexford Smith, a native of West Virginia and a recent graduate of a North Carolina law school, commenced this action against the State Board of Law Examiners of West Virginia for declaratory and injunctive relief following the Board's refusal to certify him as an applicant entitled to be licensed to practice law in the courts of West Virginia. He asks that a West Virginia statute, Code, § 30-2-1 (Michie Supp.1972), be declared unconstitutional wherein it requires an applicant for a license to practice law to have been a resident of the county "for one year next preceding the date of his appearance" before the county's circuit court for an order making findings as to his statutory bar admission qualifications, a prerequisite to the Board's certification that he is a qualified applicant entitled to be licensed to practice law. He further asks that the Board be enjoined from enforcing the one-year residency provision of the statute.

Defendants constitute the State Board of Law Examiners, an agency created by the Supreme Court of Appeals of West Virginia for conducting bar examinations of applicants found qualified therefor.

With his complaint plaintiff includes as an exhibit a copy of the order of the Circuit Court of Kanawha County, West Virginia, entered April 18, 1972, showing plaintiff to have become a resident of Kanawha County on January 15, 1972. Another exhibit with the complaint is a copy of a letter from the Secretary of the State Board of Law Examiners, dated February 22, 1972, wherein the Board's action allowing plaintiff to take the bar examination commencing on April 19, 1972, was indicated, but upon the condition that the results of the examination as to him would be withheld until the one-year's residency requirement was satisfied. Plaintiff took the bar examination and the results thereof have been withheld from him. A third exhibit with the complaint is a copy of the order of the Supreme Court of Appeals of West Virginia, entered May 22, 1972, denying plaintiff's petition for a peremptory writ of mandamus to be directed against the State Board of Law Examiners. His complaint was filed in this Court on June 1, 1972.

Defendants' answer denies that the complaint stated a cause of action and asserts that the challenged West Virginia statute is constitutional.

Jurisdiction is based on 28 U.S.C., § 1331; 28 U.S.C., § 1343(3) and (4); 28 U.S.C., §§ 2201-2202; 42 U.S.C., § 1983; and the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. No question has been raised as to the Court's jurisdiction. Lipman v. Van Zant, 329 F.Supp. 391 (N.D.Miss. 1971).

Plaintiff commenced the action as an individual and on behalf of all others similarly situated. The complaint states bases for the class action. Rule 23, Federal Rules of Civil Procedure.

The District Court of Three Judges was convened pursuant to 28 U.S.C., §§ 2281 and 2284, since the constitutionality of a state statute is challenged.

The Court determined at a hearing on July 27, 1972, that preliminary evidentiary development of the record incident to plaintiff's residence was warranted and directed that Judge K. K. Hall, a member of the Court, proceed to conduct hearings, make findings, and report to the Court thereon consistent with provisions of 28 U.S.C., § 2284(5).

On September 6, 1972, James E. Parker, Robert B. Keiter and Ernest M. Cohen filed a motion to intervene in the action as plaintiffs. Their intervening complaint stated their qualifications to take the West Virginia bar examination to be conducted by the State Board of Law Examiners, commencing September 20, 1972, with the exception that they had not been residents of the state for the period of one year as required by the West Virginia statute, Code, § 30-2-1. The Board had denied them the right to take the examination. By order of September 7, 1972, they were permitted to intervene as parties plaintiff. Rule 24, Federal Rules of Civil Procedure. They then moved for a preliminary injunction to require the Board to permit them to take the bar examination on September 20-22, 1972, with the results thereof to be disclosed to them as to others similarly situated. Counsel for plaintiffs and defendants filed stipulations of facts on September 13, 1972, and on that date the Court granted the preliminary injunction requiring defendants to allow the intervening plaintiffs to take the bar examination. Defendants administered the examination to the intervening plaintiffs along with other applicants, with the examination results as to the intervening plaintiffs being withheld.

The action came on for hearing and determination before the Court on October 27, 1972. Notice of the hearing was given to the Governor and Attorney General of West Virginia as required by 28 U.S.C., § 2284(2). At the conclusion of the hearing the action was submitted to the Court for decision upon the record, including the pleadings, exhibits, evidence, and stipulations, together with arguments on the facts and law as presented by counsel.

The single, basic, determinative issue for the Court's decision involves the constitutional validity of the requirement of the West Virginia statute, Code, § 30-2-1,^* that an applicant for a license to practice law in the state of West Virginia shall have been a resident of the county wherein he claims residence "for one year next preceding the date of his appearance" before the circuit court of the county for an order establishing his statutory bar admission qualifications, including his one year's residency. The order of the circuit court is a prerequisite to his certification by the State Board of Law Examiners that he is entitled to a license to practice law in the courts of West Virginia.

The one year's residency requirement of attorney applicants is not new in West Virginia law. See Chapter 119, Section 1, West Virginia Code of 1868. In re Application for License to Practice Law, 67 W.Va. 213, 67 S.E. 597 (1910).

The Supreme Court of Appeals of West Virginia held in point two of the syllabus in West Virginia State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420 (1959):

Though the right to practice law is not a natural or constitutional right or an absolute or de jure right, it is a valuable special privilege in the nature of a franchise which may be protected by injunction against invasion.

In point seven of the syllabus in the same case, the Court held:

The judicial department of the government has the inherent power to define, supervise, regulate and control the practice of law and the Legislature can not restrict or impair this power of the courts or permit or authorize laymen to engage in the practice of law.

The constitutional validity of the legislation here challenged is to be determined upon bases of provisions of the Constitution of the United States and our decision will in no manner or means encroach upon the inherent powers of the judiciary of West Virginia to control the practice of law in the state.

In Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 238, 77 S. Ct. 752, 756, 1 L.Ed.2d 796 (1957), the Supreme Court of the United States notes limitations on the state's power to exclude persons from the practice of law. There the Court observed:

A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment. Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623. Cf. Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692; Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. . . . A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. . . .

Recently in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), the Court held invalid a state's one-year residency requirement for welfare benefits, and in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), found a state's one-year residency requirement for voting to be unconstitutional.

The issue of the constitutionality of a residency requirement for admission to the practice of law, as now before this Court, has been before other courts in recent time.

In Keenan v. Board of Law Examiners of North Carolina, 317 F.Supp. 1350 (E.D.N.C.1970), the District Court of Three Judges held unconstitutional North Carolina's rule requiring twelve months' residence prior to the applicant's taking the examination for law practice admission.

Georgia's twelve months' residency requirement was held unconstitutional in Webster v. Wofford, 321 F.Supp. 1259 (N.D.Ga.1970).

Mississippi's one-year residency requirement was found to be unconstitutional in Lipman v. Van Zant, 329 F. Supp. 391 (N.D.Miss.1971).

In Potts v. Honorable Justices of the Supreme Court of Hawaii, 332 F.Supp. 1392 (D.Hawaii 1971), the Court held unconstitutional a statute and a rule requiring six months' residency and voter qualification as a prerequisite to admission to the...