Smith v. Davis

Individually, SMITH, Rexford Donald similarly of all others on behalf Plaintiffs, situated, Intervening al., et Parker

James E. Plaintiffs, President, al., DAVIS, et

Fred L.

Defendants.

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

United States S. D. West Division. Charleston

Nov. Va., Beckley, Payne,

Brown H. W. Smith. Edwin Mc-

Paul J. Kaufman and R. Clelland, Charleston, Va., inter- W. plaintiffs. vening Gen., Atty. Hardison, Asst. Richard E. Chauncey Browning, Va., H. of Jr., Atty. W. Va., Gen., Charleston, W. n defendants. FIELD, Judge, Before Circuit Judges. HALL, District KNAPP and ORDER MEMORANDUM PER CURIAM.

Plaintiff, Smith, a Donald Rexford a recent native of West school, graduate a North Carolina law against the this action commenced Law Examiners Vir- injunctive ginia declaratory following cer- Board’s refusal lief tify entitled to be li- him anas the courts censed Virginia. a (Michie He asks that West Virginia statute, Code, Supp.1972), declared unconstitutional U.S.C., 2201-2202; li- U.S.C., an for a wherein §§ § 1983; law to been a cense resi- county year one dent the “for next clauses of preceding appearance” of his the date Amendment to the United States Consti county’s question before the circuit court an tution. No has been raised as findings making jurisdiction. Lipman as to the order his statuto- Court’s ry pre- Zant, qualifications, (N.D.Miss. Van 1971). requisite to the Board’s certification qualified applicant that he is a Plaintiff commenced the action to be licensed to law. He fur- as an individual on behalf of all oth enjoined ther the Board asks that similarly complaint situated. enforcing states for the bases class action. Rule provision of the statute. 23, Federal of Civil Rules Procedure. constitute the Defendants Judges The District Court of Three Examiners, of Law created pursuant was U.S.C., convened to 28 §§ Court of of West 2284, 2281 and since the constitution- conducting bar examina- ality challenged. of a state statute is qualified tions found hearing The Court determined at a on therefor. 27, July 1972, preliminary that eviden- complaint plaintiff With his includes tiary development of the record incident copy as an exhibit a order of the plaintiff’s residence was warranted County, Circuit Court of Kanawha Judge and directed Hall, that K. K. Virginia, April 18, 1972, entered show- Court, proceed member of the to conduct ing plaintiff to have become a resident hearings, findings, report make County January of Kanawha on provi- Court thereon consistent with 1972. Another exhibit with the com- U.S.C., 2284(5). sions § plaint copy is a of a letter from the Sec- retary of the State Board of Law Exam- September 6, 1972, On James E. Par- iners, February 22, 1972, dated wherein ker, Robert Keiter B. Ernest M. allowing plaintiff Board’s to Cohen filed a motion to intervene in the commencing take bar examination on plaintiffs. intervening action as Their April 19, 1972, indicated, was complaint qualifications stated their the condition that the results of the ex- take the West bar examination amination as to him would be withheld to be conducted State Board residency require- until Examiners, commencing September Law ment was satisfied. Plaintiff took exception they with the bar examination and the results thereof had not been residents state for have been withheld from him. A third year of one as complaint exhibit with copy statute, Code, 30- Ap- the order of the 2-1. The Board had denied them the peals May 22, entered By to take the examination. order 1972', denying plaintiff’s petition for a they September permit- were peremptory writ of di- mandamus to be plaintiff. parties ted to intervene against rected the State Board of Law Rule Federal Rules Civil Proce- complaint Examiners. His filed They prelimi- dure. then for a moved 1,1972. on June nary injunction the Board to permit them to take bar examination Defendants’ answer denies September 20-22, on 1972, with the re- complaint stated a cause of action and thereof sults to be disclosed to them challenged asserts that the similarly to others Counsel for situated. statute is constitutional. stipula- and defendants filed U.S.C., 13, 1972, Jurisdiction September is based on 28 tions of facts 1331; U.S.C., 1343(3) (4); granted and on that date the Court preliminary injunction requiring defend- ia shall have been a resident intervening plaintiffs county ants to allow the wherein he claims residence “for to take the bar examination. Defend- the date of his appearance” ants administered the examination to before the circuit court of intervening plaintiffs along establishing for an order his applicants, statutory other with the qualifications, examination bar admission intervening including year’s residency. results as to the his one The being withheld. prerequi order of the circuit court is a to site his certification the State hearing The came on for and of Law he Examiners that is enti determination before the Court on Octo- practice tled to a license law in the hearing ber 1972. Notice of the Virginia. courts of West given Attorney to the Governor and Virginia required by year’s General of residency West requirement The one U.S.C., 2284(2). 28 At attorney applicants the conclusion of is not new in hearing Virginia the action was submitted Chapter 119, law. See upon to the Court decision Section West Code of 1868. including record, exhibits, pleadings, Application In re for License to Practice evidence, stipulations, together Law, and with (1910). 67 W.Va. 67 S.E. arguments on the facts and law as of .The presented by counsel. point held in two of the single, basic, The syllabus determinative issue in West State Bar for the Court’s decision involves the con Earley, 144 W.Va. 109 S.E.2d 420 validity requirement stitutional of (1959): of 30-2-1,* Virginia statute, Code, Though practice law is applicant hat an for a license to not t or natural constitutional practice Virgin jure law in or right, the state of an absolute or de it is a * Virginia statute, Code, applicants previous being The West of (Michie only Supp.1972), admitted, one clause of as well as the method of ex- challenged action, pro- aminations, which is whether the court or And, supreme vides as follows: otherwise. court of appeals upon may, production § 30-2-1. Certificate of moral character; applicants duly copy examination of certified of the order license; diploma licenses; priv- court, mentioned, for ilege circuit hereinbefore graduates being upon ap- and satisfied college plicant shown, upon of law. an examina- Any person desiring li- to obtain a in tion conducted accordance with such practice regulations, qual- cense to in the courts of rules and that he is appear practice this shall State' before the cir- ified to law in the courts eounty State, upon being cuit court of the in he which this and further year preceding regula- has resided for the last satisfied that such rules prove complied to the satisfaction of such tions have been in all court, respects, grant or to the com- satisfaction of a such a license attorneys practicing practice mittee of three law in the courts of this court, appointed by State, upon before such and such license shall show court, provisions that he is a its face that all the this character, eighteen years that he is section and of the said rules have age, complied Provided, any and that he has resided such been person with: produce duly for one who shall cer- appearanceand copy date of his tified of such order the circuit presentation proof, court, diploma gradua- of such the court and also a college shall cordingly. enter order on its record ac- tion from the of law of West Vir- supreme ginia University, shall, upon presenta- The court of peals prescribe publish shall rules tion thereof courts regulations State, practice! for the examination of prac- State, all for admission to and all courts of this law, admitting which shall include the order so him shall state the study degree preparation pertaining facts to the same. one-year requirement residency privilege for wel- special nature

valuable Blumstein, benefits, protected in Dunn v. fare of a franchise against L.Ed.2d injunction invasion. U.S. S.Ct. (1972), found a state’s res- syllabus point In seven voting requirement un- idency to be case, held: the Court same constitutional. gov- department judicial constitutionality of a issue of the power inherent to de- ernment has requirement regulate supervise, and control fine, now before Legisla- law and the other courts has been before impair not restrict ture can time. recent permit power au- the courts v. Board of Law Examin In Keenan engage laymen thorize Carolina, of North tice of law. the District Court (E.D.N.C.1970), leg- validity of the The constitutional Judges held unconstitutional (Three challenged is to be deter- here islation requiring twelve Carolina's rule 'North provisions upon mined bases , prior appli to the months’ residence States and Constitution taking for law the examination cant’s l in no manner or means our decision will admission. (practice inherent encroach Georgia’s residency re twelve months’ judiciary control quirement in held unconstitutional in the state. of law Wofford, F.Supp. 1259 v. Webster 321 (N.D.Ga.1970). of Bar Examiners In v. Board Schware 232, Mexico, 238, U.S. 77 S. Mississippi’s one-year residency New 353 re 756, (1957), 752, Ct. 1 L.Ed.2d 796 quirement was unconstitu found be s United State Lipman Zant, v. F. tional Van 329 power on the state’s notes limitations Supp. (N.D.Miss.1971). 391 from the exclude Potts Honorable Justices In v. There the Court observed: law. F.Supp. Hawaii, 332 A cannot exclude a State (D.Hawaii 1971), Court held 1392 practice of from the law or from statute and a rule unconstitutional occupation in other a manner or for residency quiring and voter six months’ contravene the Due Proc- reasons that qualification to admis- as a Equal ess or Protection Clause practice of law. to the sion Fourteenth Amendment. Dent v. Suffling Bondurant, v. Virginia, 114, U.S. (D.N.M.1972), sustained six 231, L.Ed. 623. Cf. S.Ct. Slo- residency requirement months’ New Higher Education, v. Board chower vote of Mexico a two-one the District 100 L.Ed. 350 U.S. S.Ct. Judges. appeal An Court of Three 692; Updegraff, v. 344 U.S. Wieman decision to the United States Su- 183, 73 S.Ct. 97 L.Ed. 216. preme noted of Au- Court has been A State can gust 28, 1972. qualification, such as standards proficiency moral character or Valid reasons exist a state’s law, its before it admits an findings concerning ap inquiry and bar qualification but plicants’ qualifications. A reasonable have a connection rational investigation and ex of time applicant’s prac- capacity fitness applicants may pru amination tice . law. dently required. the Court at But only Recently Shapiro Thompson, limited issue before has time decision —whether U.S. for consideration and 89 S.Ct. 22 L.Ed.2d 600 (1969), statute the Court held a state’s invalid plaintiffs’ admission to residency Denial for bar other than to sat- reason constitutionally no plicants valid. is residency perfunctorily the statute’s isfy found has been Plaintiff Smith appears no requirement, rational have County, Court of Kanawha the Circut capacity or profession- their fitness connection with age to have satisfied practice law. Substantial requirements. character earnings rights, privileges are al taken the bar examination but He has ignored, and cannot here involved been withheld the results have application of depleted by minimized or a resident of him. He found to be a state statute contravenes re but not state clauses ap quired his Amendment. / plication. Intervening plaintiffs Parker, Upon entire record Keiter and have established resi Cohen pertinent applicable a review County, Virgin dence Kanawha thereto, concludes: Court finds and ia, gainfully employed. and have become jurisdiction of the 1. The Court They have taken the examination Rights Civil Re students action. Law to them the results thereof as Wadmond, Council, Inc. v. 401 U. search been withheld because their failure to 720, 27 L.Ed.2d 749 91 S.Ct. S. require satisfy the durational supra. Zant, (1971); Lipman v. Van questions ment of the statute. /No brought as a action is 2. Plaintiffs’ TKeír”'age good or moral re character determines, the Court action and class quirements Plain are here involved. 23(c), of pursuant Rules Rule Federal to involving presented tiffs have case de Procedure, may so main- it Civil equal pro nial of due of law and tained. they tection of in fact have suc law. If Virginia passed cessfully bar West age have satisfied 3. Plaintiffs examination, being they are denied the requirements good of the character privilege pursue prac to statute, Code, West they tice of law for which have been relating (Michie Supp.1972), to admis- qualified. They schooled and are vic law, but, practice while to of sion injurious tims of discrimination state, they ful- have not residents application requirement of the statute to year’s ly the one durational satisfied prac the limited class to requirement. they belong. plain If law to Examin- Board of Law 4. The State qualified age tiffs have as to ers, of the Court passed the moral character and have examination, to State, declined of the governmen compelling no certify plaintiffs to entitled as legitimate tal state interest would or practice in the courts law be licensed seem to be continued refusal served plaintiffs of the state because practice As- the-' to admit them to law.f required one- satisfied statute’s not year in" Court'observed Schware residency. Mexico, Board of Bar Examiners New pra, quoted herein, previously as su Law Examin- The State "5'~ J' exclude a cannot A. can State practice rea- in manner or for of law a qualification, such as standards process or the due that contravene sons proficiency character Four- of the clauses its it before admits an States Amendment to teenth qualification any J ^ Constitution. have a connection with the rational applicant’s capacity fitness or Application and enforcement 6. Code, statute, 30- tice law. . plaintiffs’ 2-1, noted that as Exhibit No. 10 insofar year’s coun- residence one filed action indicates the next have had they ty can be certi- before bar examination to be conducted of the state being license to to a Board of Law Examiners will com- fied as Wednesday April in the courts of the state practice mence on the third law impermissible. constitutionally 1973. distance of that date will are provide ample leg- time for enactment of Virgin- provision of the West 7. The promulgation islation or the of rules and 30-2-1, Code, like statute, ia regulations regulations promul- provision rules implementation propriate changes gated thereunder necessary by made the Court’s decision year’s residency in a of the state herein. to admission are unconstitutional law KNAPP, J., declines concur and void. dissenting serves the to file a opinion. ^decision invalidity on the constitutional residency provision Judge KNAPP, (dissenting). statute and rules defendants, counsel, Since chose regulations pursuant made thereto is not seriously challenge not plaintiffs to resist an encroachment the lawful residency requirement judiciary to con- of one admission to practice of trol the law within the state. provided by this state as Virginia statute, Code, 9. The West § Virginia 30-2-1, do Code I not believe a 30-2-1, found and declared to be sev- opinion presenting my formal views invalidity the one- erable Nonetheless, be warranted. in dissent- residency provision year’s does not af- ing majority, from the views impair constitutionality fect or setting my consider a short note forth the remainder of the not statute before doing order; premise in basic so inbe the Court in this action. do and I with deference to opinion judgment colleagues my and Wherefore, it is and the courts that are in accord there- Adjudged, declared and that ordered with. provision "the of the West stat- ute, Code, (Michie Supp.1972), principle, I on take course and as menacing protest a in a a thrust every state as for “new federalism” into facet of our plaintiffs consequent defendants’ political certification of life and the erosion persons government. entitled to be licensed to of local This accomplished, my opinion, law the courts is un- state has been void, being guise constitutional and contra- under the a sort of “freedom everything vention of everybody” concept the due and for reposed supposedly clauses of the Fourteenth the Constitution. swinging” Amendment interpretation to the United “free States Consti- It is this The assumes that defend- of the Fourteenth Amendment which tutipn./j) ant examiners, virtually la'fti all of whom are out- it renders a vehicle for remak- standing responsible ing political and members of the em- our order that I cannot legal profession, recognize will com- also is the Constitu- brace. Subverted ply declaratory judgment with of travel from tional freedom granted upon plaintiffs’ complaint in- state state. I fail to see accordingly plaintiffs’ prayer fringement declines statuto- of this injunctive question. ry requirement relief. Court has my opinion, means, consistent, in not respect is specific, more To be licensing re- agreed purpose of proceeding, I with the presented in this the issue quirements. a com- does have state submit pelling maintaining com- interest in deny relief It that would follows stability of integrity petency, sought by action. outweighs any claim and that infringement process” and “due guaranteed protection” to these “equal they represent by class Amendment. agree, majority says, as the I do not rights, professional substantial earnings in- privileges are here COMPANY, COCA-COLA cor- long professions involve volved. The poration, Plaintiff, training, discipline dedication. very They vitally affect lives and Dairy CAHILL, Individual, Jack open d/b/a people. our To freedoms of Dairy Maid, Maid Cahill’s and/or a li- door to all who desire Triple corporation, Company, “AAA” profession cense to enter the of the law Defendants. state, a.ny state that mat- Civ. No. 71-269. ter, opportunity without the time and thoroughly examine the character and States Oklahoma, D.W. engage fitness of Civil Division. professions most vital of the in our soci- June ety justified principle, neither nor process” “equal to meet “due protection” guarantees of the Fourteenth

Amendment. How can a state competence standards of and ma- judgment profes- ture members of the subject applicants

sion and not li-a scrutiny Proper cense to careful ?

scrutiny and evaluation time. true, plaintiffs argue, It is that the objective licensing

primary require- competency ments is to assure and fit- ness to law. But this cannot be accomplished adequate without time also, D.C., See appli- observation and evaluation cant. This best be achieved ex- posure to his fellows everyday pursuits life

neighborhood he seeks to serve. all, After some board or must judgment

make a on each individual plicant objective on the basis of facts. quality judgment of of necessi- ty depend source, comprehensive reliability character and

of those facts. A short term

or “residency fact,” whatever

Case Details

Case Name: Smith v. Davis

Court Name: District Court, S.D. West Virginia

Date Published: Nov 6, 1972

Citation: 350 F. Supp. 1225

Docket Number: Civ. A. 72-145-CH

Court Abbreviation: S.D.W. Va