Suffling v. Bondurant, Civ. No. 9211.

• Decision Date: 06 March 1972
• Docket Number: Civ. No. 9211.
• Parties: David N. SUFFLING, pro se, et al., Plaintiffs, v. W. E. BONDURANT, Chairman, et al., Defendants.
• Court: U.S. District Court — District of New Mexico

339 F. Supp. 257

David N. SUFFLING, pro se, et al., Plaintiffs, v. W. E. BONDURANT, Chairman, et al., Defendants.

Civ. No. 9211.

United States District Court, D. New Mexico.

March 6, 1972.

David N. Suffling, Richard Paul Fahey, and Mason H. Rose, V, pro se.

Allen C. Dewey, Jr., Albuquerque, N. M., for defendants.

Before SETH, Circuit Judge, and MECHEM and BRATTON, District Judges.

MEMORANDUM OPINION

This suit was brought as a class action before a three-judge district court for declaratory and injunctive relief. The Petitioners here are graduates of law schools accredited by the American Bar Association who have passed the examination of the Board of Bar Commissioners of the State of New Mexico. They have not been admitted to practice law in New Mexico and will not be until they have finished six months' residence in New Mexico and have furnised letters from attorneys in good standing who are practicing in New Mexico stating that Petitioners are of good moral character.

The Board of Bar Commissioners appointed by the Supreme Court of the State of New Mexico promulgates rules and regulations governing admission to the New Mexico State Bar. These are contained in Section 18-1-8 N.M.S.A. (1953 Comp.). Rule II, subd. A, par. 8 provides:

"An applicant for admission to the bar upon examination, except an attorney duly admitted to the bar in another state and actually engaged in the practice of law therein, must be an actual bona fide resident of the state of New Mexico at the time of examination. An applicant for admission to the bar, either upon examination or upon certificate and motion must be a citizen of the United States, an actual bona fide resident of the state of New Mexico for at least six months prior to admission, 21 years of age and of good moral character."

Petitioners Suffling, Fahey, and intervenor Schmidt took and passed the New Mexico bar examination in August, 1971. Suffling started his residence on June 10, 1971. Fahey began his residence on June 25, 1971. Both completed the required residency period during the pendency of this action. Schmidt, who had lived in New Mexico from 1942 until 1968 and had attended schools here, re-established his New Mexico residence on August 13, 1971. He will complete his six months' residency on February 13, 1972.

Rose passed the New Mexico bar examination in August, 1970. He claims residence by reason of having lived in New Mexico as late as October, 1960, having gone to school at the University of New Mexico and by virtue of employment and enlistment in the Marine Corps here. He claims dual residency with California. Prior to passing the New Mexico Bar examination, he attended school in California as a resident and took and passed the California bar examination as a resident. Rose resides in California and practices law in that state.

All of the Petitioners except Rose have been gainfully employed in New Mexico since having passed the bar examination in positions requiring legal training although not as admitted lawyers. None have undergone any economic hardship since passing the bar examination, although Suffling, Fahey and Schmidt could have earned more as members of the New Mexico Bar.

Petitioners contend that they are the subject of invidious discrimination, that they and the members of the class they represent are being denied equal protection guaranteed by the Fourteenth Amendment of the United States Constitution and that their right to interstate travel has been inhibited. They assert that two classes of citizens have been created for admission to the New Mexico Bar — those who have established six months' residence, have passed the bar examination and have been admitted and those who have passed the bar examination but will not be admitted until their six months' residence has been established. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L. Ed.2d 796 (1957).

It is their position that only a compelling state interest justifies restrictions on their right to travel and right to work and that Rule II, subd. A, par. 8 does not further such an interest. They rely on Shapiro v. Thompson, 394 U.S. 618, 89 S.C. 1322, 22 L.Ed.2d 600 (1969) wherein the United States Supreme Court applied the stricter rather than the traditional test of reasonableness of classification in determining Equal Protection. Shapiro held that the classification created by the imposition of a one-year waiting period for welfare benefits did not promote a compelling state interest and was unconstitutional. The holding of Shapiro is not applicable here however as that case specifically excludes persons seeking professional licenses.¹

A state may require its bar members to be of good moral character and fit to practice their profession. Schware v. Board of Bar Examiners, supra. Accordingly, Rule II, subd. A, par. 10 of the Rules Governing Bar Examiners which provides that an applicant for examination must satisfy the Board of his good moral character is not challenged here.

A state may also require that an applicant for admission to the bar be a resident for a reasonable period of time in order that his character and fitness may be examined. Webster v. Wofford, 321 F.Supp. 1259 (N.D.Ga.1970).

The question seems to turn on the length of time required to determine good character and to establish residence before admission and whether that length of time is reasonable.

While the regulations require that residence and good moral character be established before taking the bar examination, the Commissioners have allowed the residence period to start at any time before the bar examination with the balance to be filled out after the examination. Residence in New Mexico can start at any time from five months and 29 days before or on the day of the examination with the balance of time to be completed after the examination and good moral character can be established after the examination.

None of the cases in which residency requirements have been held unconstitutional deals with the requirements as liberal as those of New Mexico.

Mississippi required twelve months' residency prior to application to take the examination and further required that a written application be filed at least ninety days before the time of examination. Residency in Mississippi was thus required for a total of fifteen months. Lipman v. Van Zant, 329 F.Supp. 391 (N.D.Miss.1971).

Georgia required establishment of good moral character before taking the examination and twelve months' residence after passing the examination prior to admission. Webster v. Wofford, supra. North Carolina required twelve months' residence prior to taking the examination and gave the examination only once each year. Keenan v. Board of Law Examiners of State of North Carolina, 317 F.Supp. 1350 (E.D. N.C.1970). In no case was less than one year's residence required and in Keenan the time could run as high as two years.

Potts v. Honorable Justices of Supreme Court of Hawaii, U.S.D.C. Hawaii, 332 F.Supp. 1392 (1971), dealt with a six months' residency requirement which was held to violate the Equal Protection Clause of the Fourteenth Amendment, but that case is distinguishable. The challenged statute and regulation in Potts required that an applicant for the bar examination be a qualified, registered voter and a resident for any six-month period after attaining age fifteen.

Hawaii also fixed a sixty-day registration period prior to the bar examination for the express purpose of enabling the Supreme Court to verify the educational background, morals and character of the applicant. Residency in Hawaii was not required during this sixty-day period. The three-judge court determined that since residency was not required during this period, residency for any six-month period after age fifteen would not furnish the Supreme Court with facts necessary for an informed judgment as to the applicant's character. The court held that the residency requirements were arbitrary, capricious and unconstitutional but declined to consider whether plaintiff's right to interstate travel or any other constitutional right had been infringed upon.

We conclude that six months' residence in New Mexico to be commenced either any time before the bar examination or as late as the day of the bar examination is a reasonable period in which to afford the Board of Bar Examiners an opportunity to investigate the morals and character of those persons who seek to become members of the New Mexico...