State ex rel. Quelch v. Daugherty, 15784

• Decision Date: 30 March 1983
• Docket Number: No. 15784,15784
• Citation: 306 S.E.2d 233,172 W.Va. 422
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. John-Robin M. QUELCH, et al. v. George A. DAUGHERTY, et al., etc.

Page 233

306 S.E.2d 233

172 W.Va. 422

STATE ex rel. John-Robin M. QUELCH, et al. v. George A. DAUGHERTY, et al., etc.

No. 15784.

Supreme Court of Appeals of

West Virginia.

March 30, 1983.

Dissenting Opinion July 27, 1983.

Syllabus by the Court

The constitutional separation of powers, W.Va. Const. art. V, § 1, prohibits the legislature from regulating admission to practice and discipline of lawyers in contravention of rules of this Court. W.Va. Const. art. VIII, § 1.

John-Robin M. Quelch, Kevin S. Cotter, Paul R. Sheridan, Jay T. McCamic, pro se.

Janet F. Steele, Asst. Atty. Gen., Charleston, for respondents.

HARSHBARGER, Justice:

Petitioners are four law students in good standing at West Virginia University School of Law. They have invoked our original jurisdiction to mandamus the Board of Law Examiners to admit them to practice law without taking the Bar examination. In 1981 our state legislature amended W.Va.Code, 30-2-1, to require all West Virginia University law school graduates after July 1, 1983, to take the examination. Until that time, West Virginia University Law School graduates had been "privileged", not required to successfully complete the examination in order to qualify for admission to practice. The Board of Law Examiners has taken no position on this writ.

The diploma privilege is found in both former Code, 30-2-1, and Rule 1.020 of the Code of Rules for Admission to the Practice of Law:

Former W.Va.Code, 30-2-1:

Any person desiring to obtain a license to practice law in the courts of this State shall appear before the circuit court of the county in which he has resided for the last preceding year and prove to the satisfaction of such court, or to the satisfaction of a committee of three attorneys practicing before such court, appointed by the court, that he is a person of good moral character, that he is eighteen years of age, and that he has resided in such county for one year next preceding the date of his appearance; and upon the presentation of such proof, the court shall enter an order on its record accordingly. The supreme court of appeals shall prescribe and publish rules and regulations for the examination of all applicants for admission to practice law, which shall include the period of study and degree of preparation required of applicants previous to being admitted, as well as the method of examinations, whether by the court or otherwise. And the supreme court of appeals may, upon the production of a duly certified copy of the order of the circuit court, hereinbefore mentioned, and upon being satisfied that the applicant has shown, upon an examination conducted in accordance with such rules and regulations, that he is qualified to practice law in the courts of this State, and upon being further satisfied that such rules and regulations have been complied with in all respects, grant such applicant a license to practice law in the courts of this State, and such license shall show upon its face that all the provisions of this section and of the said rules have been complied with: Provided, that any person who shall produce a duly certified copy of such order of the circuit court, and also a diploma of graduation from the college of law of West Virginia University, shall, upon presentation thereof in any of the courts of this State, be entitled to practice in any and all courts of this State, and the order so admitting him shall state the facts pertaining to the same. (Emphasis supplied.)

Rule 1.020:

Any person who shall produce a diploma of graduation from the College of Law of West Virginia University shall not be required to take the bar examination. Such person must, however, satisfy all other requirements of these rules, including, but not limited to, the requirement that he or she has been a resident of West Virginia for more than thirty (30) days before being admitted to practice and that he or she has satisfied the requirements of Rule 2.000, Character of the Applicant. Volume 1A, W.Va.Code, page 269-270. (Emphasis supplied.)

Code, 30-2-1's proviso was amended as follows:

Provided, that any person who shall produce a duly certified copy of such order of the circuit court, and also a diploma of graduation from the college of law of West Virginia University reflecting a date of graduation prior to the first day of July, one thousand nine hundred eighty-three, shall, upon presentation thereof in any of the courts of this State, be entitled to practice in any and all courts of this State, and the order so admitting him shall state the facts pertaining to the same.

Petitioners contend that the legislature does not have authority to regulate admission to practice. That power is ours alone, certainly since the 1974 Judicial Reorganization Amendment to our State Constitution, W.Va. Const. art. VIII, §§ 1 and 3.

We need not again trace the historical development of judicial control over the practice of law. See Lane v. W.Va. State Board of Law Examiners, 170 W.Va. 583, 295 S.E.2d 670 (1982); State ex rel. Askin v. Dostert, 170 W.Va. 562, 295 S.E.2d 271 (1982); Carey v. Dostert, 170 W.Va. 334, 294 S.E.2d 137 (1982); Statee ex rel. Frieson v. Isner, 168 W.Va. 758, 285 S.E.2d 641 (1981); W.Va. State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420 (1959). We summarized its evolution in State ex rel. Askin v. Dostert, supra 170 W.Va. at 565-566, 295 S.E.2d, at 275:

It was decided at an early point in West Virginia jurisprudence that the Legislature possessed the authority to govern the admission and practice of attorneys in West Virginia courts, but that the judiciary retained its common law supervisory powers "to exclude or admit, on application for admission, or to dismiss, after admission, for misconduct or unfitness of character ...." Ex parte Hunter, 2 W.Va. 122, 182 (1867). However, as a result of legislative and constitutional modifications, the dichotomy of authority to regulate the practice of law, once shared by the legislative and judicial departments, has not survived in West Virginia. Today, the exclusive authority to define, regulate and control the practice of law in West Virginia is vested in the Supreme Court of Appeals. State ex rel. Frieson v. Isner, 168 W.Va. 758, 285 S.E.2d 641 (1981).

In Carey v. Dostert, supra 170 W.Va. at 335, 294 S.E.2d, at 138, we wrote:

The power to supervise, regulate and control the practice of law includes the power to admit and disbar attorneys.

Syllabus Point 1 of State ex rel. Barker v. Manchin, 167 W.Va. 155, 279 S.E.2d 622 (1981) states:

Article V, section 1 of the Constitution of West Virginia ^* which prohibits any one department of our state government from exercising the powers of the others, is not merely a suggestion; it is part of the fundamental law of our State and, as such, it must be strictly construed and closely followed. (Footnote ours.)

Any legislatively-enacted provision regarding bar admissions that conflicts with or is repugnant to a Supreme Court rule must fall. Lane v. W. Va. State Board of Law Examiners, supra 170 W. Va. at 585-586, 295 S.E.2d, at 673; State ex rel. Frieson v. Isner, supra; State ex rel. Thorn v. Luff, 154 W.Va. 350, 175 S.E.2d 472 (1970). The Judicial Branch may honor legislative enactments in aid of judicial power, but is clearly not bound to do so. State ex rel. Frieson v. Isner, supra 168 W. Va. at 776-777, 285 S.E.2d, at 654. Accord, Feldman v. State Board of Law Examiners, 438 F.2d 699 (8th Cir.1971); Ex parte Alabama State Bar, 285 Ala. 191, 230 So.2d 519 (1970); Application of Brewer, Alaska, 430 P.2d 150 (1967); Hunt v. Maricopa County Employees Merit System Commission, 127 Ariz. 259, 619 P.2d 1036 (1980), reh. denied; Merco Construction Engineers v. Municipal Court, 21 Cal.3d 724, 147 Cal.Rptr. 631, 581 P.2d 636 (1978); People v. Buckles, 167 Colo. 64, 453 P.2d 404 (1968); Martin v. Davis, 187 Kan. 473, 357 P.2d 782 (1960) appeal dismissed, 368 U.S. 25, 82 S.Ct. 1, 7 L.Ed.2d 5; In re Feingold, 296 A.2d 492, 496 (Me.1972); Attorney General v. Waldron, 289 Md. 683, 426 A.2d 929, 17 A.L.R.4th 794 (1981); In re Opinion of Justices, 289 Mass. 607, 194 N.E. 313 (1935); In re Nevius, 174 Ohio 560, 191 N.E.2d 166 (1963); Bryant v. State, Tex.Civ.App., 457 S.W.2d 72 (1970), reh. denied. Cf., In Matter of Chi-Dooh Li, 79 Wash.2d 561, 488 P.2d 259 (1971) (wherein no conflict was found between court's power to regulate bar admissions and legislation there in question). Some jurisdictions permit the legislature, in exercise of its police powers, to enact reasonable regulations for admission to the Bar. Fuller v. Watts, Fla., 74 So.2d 676 (1954), reh. denied; State v. Cannon, 206 Wis. 374, 240 N.W. 441 (1932). Cf., In re Greer, 52 Ariz. 385, 81 P.2d 96 (1938) (legislature sets minimum standards); Application of Levy, 23 Wash.2d 607, 161 P.2d 651, 162 A.L.R. 805 (1945), reh. denied (legislature can set minimum standards). Legislative enactments which are not compatible with those prescribed by the judiciary or with its goals are unconstitutional violations of the separation of powers.

The case reporters are replete with examples of state supreme courts invalidating legislation that encroaches upon their constitutionally granted powers. Heiberger v. Clark, 148 Conn. 177, 169 A.2d 652, 656 (1961); Sams v. Olah, 225 Ga. 497, 169 S.E.2d 790, 796 (1969), reh. denied, U.S. cert. denied, 397 U.S. 914, 90 S.Ct. 916, 25 L.Ed.2d 94; Sharood v. Hatfield, 296 Minn. 416, 210 N.W.2d 275 (1973); In re 42 Pa.C.S. § 1703, 482 Pa. 522, 394 A.2d 444 (1978); In Matter of Washington State Bar Association, 86 Wash.2d 624, 548 P.2d 310 (1976). The Kentucky Supreme Court recognized that any power that had resided in the legislature regarding bar admissions was superseded by Kentucky's 1975 Judicial Amendment:

There can be no doubt that this constitutional amendment completely removed the subject from any legislative authority and rendered obsolete and ineffective the statutes pertaining to it. Strangely...