*1 SULLIVAN, Application Harvey Patrick Petitioner,
v. ASSOCIATION, Respondent.
ALASKA BAR
No. 2783.
Supreme of Alaska. Court
June *2 duty temporary from for provided
orders 1976, at 1975, 30, 18, January October addition, Sulli- Belvoir, Virginia. Fort his initial report for van ordered Wood, Mis- Fort Leonard assignment at de- souri, by February Sullivan duty in for active parted from Alaska mid-October, learning that shortly after July Bar examination. failed the Belvoir, arriving at Fort Sullivan Upon personnel center military contacted his as- captain charge in spoke with the expressed Sullivan signments. When for the sit to Alaska to to return desire examination, captain rec- February Bar it, stating it would against ommended proceed him Fort preferable to be originally ordered. Leonard Wood Nevertheless, his at- continued Sullivan military’s apprоval by tempts to obtain Army and Secretary of the writing the Alaska’s enlisting aid of a member of delegation. this was congressional When unavailing, not submit Sullivan did examina- plication Bar for Harvey Sullivan, pro. per. Patrick tion. Mary Follette, Anchorage, respon- La completing his course of instruc- Upon dent. Belvoir, returned to Fort Sullivan tion at to secure Anchorage RABINOWITZ, CONNOR, Before ER- personal property. While items certain BURKE, Justices, WIN and DI- Adju- Anchorage, in Sullivan contacted MOND, Pro Tern. Justice at Fort Richardson tant General’s office OPINION attempt gain sit for the approval in the Bar examination to administered ERWIN, Justice. morning of Februаry. On the last week in The Alaska Bar Association has filed a February approval to take the 4, tentative petition rehearing They this matter. given by Brigade examination was contend that this court overlooked or mis- Fort Commander Wood. conceived ordering material facts in approval, approached With this Sullivan Harvey permitted Sullivan be take the the Executive Director of the Bar Alaska Bar Examination administered Follette, Association, Mary and in- La February, 1976. quired would be allowed whether
Upon in take the three graduation law school examination scheduled Ms. July, 1975, Sullivan, weeks hence. La informed life-lоng Follette resident applica- Alaska, Sullivan that the deadline for late sat examination for the consequence, passed and as a given tions had Anchorage. While results, sit the exam- awaiting Sullivan he would not allowed to examination Keith Department of ination. then contacted received Sullivan orders from Brown, Army ac- President of the Board of Gover- instructing him to duty Engineers. The Alaska Bar Corps tive nors of the Association. also be allowed to explained that board was dered Brown despite he failed to the Alaska Bar Rules. the fact that forced to adhere of the Alaska comply 3(3) Sullivan filed On extraordinary because expedited this court for review *3 involved in the case. circumstances by the Association decision rendered Bar application. Febru- thereafter respect with The Alaska Bar to his On Association ary 6, hearing was rehearing this court conducted a with filed a for which opinion explains also for presiding; Erwin and Burke This the basis denied. Justices Follette, speaking was Ms. La decision. attendance our Association, on Alaska behalf of the Bar The Bar that review Association submits petitioner and Sullivan. premature in that Sulli by this court adminis comply van did not with certain At hearing the the Sullivan informed procеdures, they allege are a trative which if did not permission receive jurisdiction. prerequisite to this court’s examination, to sit for the he would have Specifically, they that before this argue day to leave the next to to order petition, he rule on court could Sullivan’s Fort by February Wood since required complete following to the his original were binding orders unless he steps: one, an with the Bar application file was allowed to take the test. Alaska Association; two, appli the upon denial of Bar argued applicable Association that the comply filing cation with the for failure rule, Alaska Bar Rule .I^),1 estаblished deadline, to the appeal he was obligated January as the filing last date for Governors; three, after Board of and the an application February for the examina- required appeal, Board denied the tion, further, and that the Board of Gover- rules of this procedural to the to adhere nors had no discretion to relax the re- rule Appellate the court as set forth Part IV of gardless the circumstances. The Bar Rul es.2 Association therefore concluded that Sulli- van would not be allowed ex- to take the It is well that the final established amination. stan determine power authority and
Later practice that afternoon (Chief this court admission the law dards for Boochever not or- The Bar participating) in Alaska reside this Court.3 Justice 3(3) provides: practice 1. Alaska a Bar Rule of law from de- mission Governors, application An May shall be shall filed not later than the Board of cision July by practice governed 1 for the civil bar examination the rules of be IV, [Ap- not later than Alaska December 1 for forth matters set in Part ap- pellate bar examination. In the event Rules]. that an plication Appellate is filed late an Rules covers the additional late fil- Part IV ing paid brought procedure $25 fee of shаll be if to be in civil filed not later followed casp than fourteen time and manner after the last for to this such filing timely application, filing taking appeal, preparation an late for paid prep- thereafter; appeal, relating fee of shall be $100 if filed record matters provided, however, motions, filing no shall be aration and of briefs and accepted argument, requesting procedure for oral unless such Although cation filed at did office of the Alaska other related Sullivan matters. appellate comply applicable Bar Association not later than 15 with June power January rules, bar examination it is clear we had dispense bar for the An un- with the rules under timely application provides: shall considered an plication following designed next busi- These rules are to facilitate justice. by They may applicant. unless re- withdrawn advance ness and by dispensed court when laxed or 2. The discussion which need not be follows work sur- adherence them will strict step third concerned with the referred to prise injustice. pro- the Bar Association. Alaska Bar Rule 8 Houston, Application P.2d : vides 3.See Brewer, practicable procedure 1963) ; (Alaska Application the extent To governing appeal 1967); Application (Alaska applicant Steel- for ad- P.2d 150 we are reaching In this decision Association, created which was that if the not unmindful the fact as an administrative Legislature, acts State effectively on function the admission of Association judiciary arm the basis, demand day-to-day courts court must lawyers practice before the law appropri applicant comply with the As we have not- of Alaska.4 State in all prior to our review Bar Rules ate past: ed but the most extreme circumstances. ultimately reserves the this court While or not an whether authority to determine case, instant bar, admitted to should be Army led to believe United responsibility administrative considerable the Feb unable to sit for that he would be delegated has been ap ruary examination. On *4 Association.5 exami weeks proximately three before Thus, re relationship between the Su that he could nation, he was informed preme is a was ad Anchorage Court and the Bar Association until test main instructed also delicate one.6 ministered. Sullivan was take the exami going if he that prevent of the re To a dislocation to Fort he was nation Bar Association spective functions of the forthwith, originally It ordered. Wood unwilling generally and this we are then, al apparеnt, if he that intercede Bar admission cases until examination, he would to sit for the lowed applicant has his administra exhausted day to Anchorage the next have to leave Thus, possi if require, tive we remedies.7 his car on reach destination ble, petitioner comply that with the mind, immedi 17th. With this Sullivan steps spelled procedural out in the Alaska ately the Executive Director contacted Bar Rules before court reviews President Bar Association and the procedures Our case. deference to the ex parties Both the Board of Governors. spelled out in the Bar Rules does not have relax plained that had discretion to they no however, foundation, a jurisdictional since be un rules and thus Sullivan would power this court has in the inherent upcoming able sit tercede at time in admission matters. filed day, next Sullivan then, opinion, It is our that expedited seeking petition with this court procedures when, normal be relaxed decision Association’s review taking into necessary account the balance respect application. At with to the relationship previously we have point option waiving the we had identified, existed, we determine the procedural interests irregularities that justice require it. areWe therefore un to the normаl requiring to adhere adopt position able to advanced the Bar procedures spelled out in Rules. Bar Association that an must the Bar The court chose to waive comply with proce certain petition. administrative think it and hear Sullivan’s We dures jurisdiction before we have to re required strict evident that had this court view the case. compliance procedures, normal the re-
man,
(Alaska 1969) ; Applica
proposals
8. See
537 3, February prior, IS bar to secure his automobile for the January and effects, application personal An untimely examination. on of the secretary be considered for met with executive application shall unless was too following examination Association and was informed it the next application file an applicant. for him to withdrawn late examination, begin Febru- This was the status of the rule at the timе 24, 1976. The Board of ary Harvey requested permission to determi- secretary’s executive sustained the the February 1976 bar nation, applied Sullivan then Mr. July Mr. Sullivan taken ex he application, In his for relief. amination and had on or received notice states: about year, October while he re- petitioner submits that had he serving Army the Unietd at Fort States from the United ceived notice Belvoir, Virginia, or left shortly before he him Army which could have afforded Belvoir, pass for Fort failed to that he had the Feb- opportunity apply for timely the examination. Under Rule Section examination, ruary done he would have he written could have so. Bar, secretary giving the executive of the reapply
notice his intention for the appreciate predicament I can days February 1976 examination within 60 he believed was when he Mr. Sullivan receiving after such notice of failure Wood have Ft. addition, passing grade.1 attain a if probably not and would give failed to his in such written notice of Alaska Bar Examination to take the able prior tention expiration 60- But no rea- that month. there was given day period, option he still had failed to son, notified that he had when regular, application initial December examination, could pass the 1, 1975; a applicаtion first late days of given notice either within have later, 1975; on or about December examination, next to take the his intention final than no later Janu applications under Rule filed late have ary 15, 1976.2 He of the Alaska Bar Rules. Section taken such out of actions Sullivan did himself could not avail prudence, just caution or opportunities. abundance of these His was that at reason *7 developed—that re- he did it the time he he had the event—as received notice that time pass that he could take July examination, word failed the he ceive late Wood, exam- army duties the under orders to to take to Ft. from оff fact, hearing the before Missouri, and that ination. in ad- court, quite not approval did receive candid tentative might these military superiors have taken mitting to take the that the with 4, bar examination familiar until 1976. because-he was measures He arrived in Anchorage pertinent on the rules. pro practice 3,
1. of law 6 of the admission § Rule Alaska Bar Rules for Alaska; vides : pass Providing (b) information An a bar such additional who has failed to may required by required by may Board. re- the Rule as apply subsequent Applicants re- for a for reexamination shall admission to take pay quired bar examination. such additional examination Reаpplication by: application shall be fees as be fixed made and comply (a) Sending applicant.who written of intention An does notice Board. reapply reapply pursuant to to following the Board within 60 Section must with through 5 notice of notice of this Rule. failure. Such Sections description applicant’s shall include a employment circum- See also interim and other Rule 3.§ 2. Alaska suitability affecting supra, applicant’s stances n. § application detail, respect Mr. Walsh’s facts in some I mention these read : repetitive degree a I realize is which majority opinion, has been said what having Cоurt considered The in consider- it that to make clear order per- for of David Walsh cation James case, the court ing Mr. Sullivan’s 1974, Alaska July, mission to write its ac- precedent arising from with a faced applica- now denies the Bar Examination ought to it which in the Walsh case tion tion. There in Sullivan’s case. have followed re- deny “petition Court a for The did not otherwise, reason, was no substantial discretionary its view” exercise of the court to decide majority for the con- authority deny such without review way, and applicant one case of one late The petition. a sideration the merits of position its less сompletely then to reverse in- that that order was entered indicates and another years than later decide two stead, its merits considered precisely opposite applicant’s case permis- application of Mr. Walsh for
way. examination, and de- sion to take the bar majority that it treated states him permission nied to do so. review, application petition a for Walsh as precedent believe this was a which the I peti- questions the denial of whether ought court to have adhered to in Sul- tion for review can be considered even case, livan and that the rule stare precedent. referring If the decisis4 should control here. It true discretionary that as a act the fact have held is not we this doctrine may deny for petition review with- recognized immutable.5 But we petition, then, deciding out the merits of validity of K. the doctrine in the In Re G. course, such a would have little decision decision6 stating that: precedent. value as recognize necessity in a fully We But I application submit that the Walsh government past respect of law actually was not a for review as judicial judgment exercise of contemplated by Appellate continuity predictability need provide review, in appellate legаl relations.7 discretion of the from an order or As has Supreme the United Court superior decision of is not court which appealable stated: Appellate under Rule 5. Very weighty underlie considerations The decision of Board of principle should courts permit
not to Mr. Walsh to take the exam- Among lightly past overrule decisions. ination was final—there was in- nothing the law desirability these are terlocutory about it inas cases where re- guide furnish a for the conduct clear sought view is non-appealable from a order individuals, plan them to to enable addition, of a court.3 In un against their affairs with assurance the court was “Application for entitled *8 surprise; of fur importance toward the Original Alternative, or, Relief the in No- thering expeditious adjudication Appeal”. fair and tice The order of the court governs procedure 4. Stare decisis means to abide or adhere to 3.Alaska Bar Buie 7 the Dictionary applicant at to decided cases. Black’s Law be followed an who wishes to (1957). appeal to the 1577 Board Governors when he permit has been denied examination or has K., 914, (Alaska In Re G. 5. P.2d 497 916-17 Supreme been denied to certification the Court 1972). practice for admission to law. Buie 8 n appeal provides 1§ then “An to the Id. 6. Supreme may applicant Court be filed Id., from a decision of the Board 7. . . ..” [em- at 916. phasis added].
5 n 0 time to need to ev come to Alaska and establish by eliminating relitigate case; required 30-day Alaska residence. proposition every relevant in ery necessity maintaining public and the A further distinction between the two faith in im judiciary as source of attempted by majority cases is on the personal judgments. and reasoned The ground nothing prevented Mr. Walsh rejecting any reasons for established rule examination,11 taking subsequent from always weighed against must these pre- whereas Mr. have been Sullivan factors.8 tаking vented an examination for because, of time length unforeseeable attempts majority distinguish The to states, the majority “his -obli- [Sullivan’s] Walsh and Sullivan on cases the basis of gation Army ability inhibited the reasons for delay the several weeks be- return at to Alaska will”. application tween the date an is filed and As date the examination. the ma- ar- That basis of Mr. was the Sullivan’s out, jority points time—ap- this amount of notice or gument giving proximately necessary six weeks—is in or- 1976, February e., in re-examination i. der for the Bar to conduct the character Army had fact that he was in the investigation applicant, to assure Ft. standing orders to that thе will abe resident of the at or the time of the examina- Wood about days examination, prior state 30 tion, given February being which was and to many per- be able to ascertain how out, Mr. 1976. But as it turned Sullivan sons are to take the order in Alaska the time the examination sufficient can number of tests be ob- given, and was authorized tained Jersey from New and California.9 Army take the examina- United goes say The then that the tion. first application reason would have no this dissent pointed I out have earlier July
Mr. he had taken Sullivan because absolutely no ing opinion that there was examination, 1975 and the character inves- applying tо take Sullivan’s obstacle Mr. tigation made, already had been and that within the 1976 examination inapplica- the second reason also would be though prescribed by rule, even time limits ble because Mr. was a resident of official duties know he did not whether Alaska. take permit him to Army Furthermore, if
I examination or not. believe this is a distinction without prevented Army real duties difference. Mr. Sullivan’s When Mr. Walsh’s returning ex filed, cation him from the Bar had more than 1976, there is no requisite time within which to conduct amination Governors, in why investigation.10 character the Board of And since reason 4, in it under Rule Section just Walsh’s discretion vested 2, was filed two arranged 90-day deadline, ample short of for Mr. he had could 12 although place, Moragne Lines, 8. v. fore the examination takes States Marine 398 U.S. complete attempt 375, 403, 1772, 339, probably 1789, such does 90 S.Ct. 26 L.Ed.2d (1970). investigation prior Jardan, time. 415 to that 358 See also Edelman v. 662, 1347, 39 L.Ed.2d U.S. 94 S.Ct. permitted 11. was not Mr. Walsh ; (1974) Egelak, 14 v. n. United States next examination 1974 1959) ; F.Supp. 206, (D.Alaska Unit- given 1975. Mason, 391, 399-400, ed States v. 412 U.S. states the Alaska Bar Rules (1973) ; § S.Ct. 37 L.Ed.2d *9 part: in M’gruder Washington, v. Bank 9 Wheat. of given less shall not The bar examination be (1824). 6 L.Ed. every months, be than shall once twelve reason, explanation 9. As to the last see the written, and conducted in the man- shall be opinion. majority in footnote 11 the of place nеr at the and established and time nothing by requires 10. There is in the rules which the board. investigation completed that a be be- character tively Sullivan to take the examination at some integrated Alaska Bar in Association place light in any other than Alaska ex providing of practice rules admission to igent might By accommodation, circumstances that been law. of such virtue present in his case.13 relationship par- the essential between the requires comity by ties be exercised to both I any see am unable to real distinction Bar, proper recog- and the and a and between the Walsh Sullivan cases that by nition аuthority each of the is each would in justify the court the ignoring regulation exercise the of legal the po- doctrine decisis taking of stare one profession. Walsh, exactly op- sition and as Mr. the posite position Sullivan, as to Mr. with re- put way, To it another Bar 60(b) Rule gard applications the of means that the will court refrain im- taking the Alaska Bar Examination. posing rules on the Alaska Bar Association consent, without its Association, and the The Rules. Alaska Bar turn, adopt approval will rules without majority power final The states the the Supreme Court. That how the and authority to determine standards Harvey matter stood when prаctice admission to the of law Alaska peared sought permis- before the court and support In resides in this court. sion to take the 1976 bar exami- Houston, proposition, majority cites the nation, despite noncompliance with Steelman, Brewer, Stephen- Peterson and Bar relating taking Rules of the ex- cases,14 son goes refer to and then on to amination. ad- Association is an fact that the Bar re- judiciary arm of the ministrative with case, In majority has failed to spect practice law. admission adhere spirit comity to the which has governed product Bar are a relations between The Alaska and the joint approximately past of the Bar and this court. Bar action rules, years. they In adopts ordering but are be Bar Mr. Sullivan permitted adopted by until further 1976exami- effective nation, disregarded provides: majority has 60(b) court. Bar Rule requirements plain of Rule Section changed may rules at time These doing so, the Alaska Bar it im- Rules. at a majority of the vote Committee plicitly imposed has Bar a on the simi- rule duly quorum at meeting held which Appellate per- lar to Rule 46 which would however, present, approv- subject, to the discretion, mit the its relax al of vote the Board dispense relating of the Alaska Association cations for admission. This has been done by the adoption change of the and the explicit without clear and adhering to the of Alaska.15 Supreme Court of the State 60(b) requirements pro- of Bar Rule which is that an this rule means accom- What vides changes, that rule which include ad- the au- has been made between modation ditions to the Bar be initiated thority Supreme to determine Court Bar and for approv- submitted to the court practice Alaska, who law and adoption. al Iegisla- authority independence given though which is to bar examination Armed United States 13.Even upon through continuing Alaska, the date I as- stationed outside оf Forces and applicant Sullivan, for admis- the Board certifies the who born sume that Mr. Alaska, sion Bar Association!.] to the Alaska maintain his reared in military during term of service. residence majority opinion. 14. See footnote 3 of the 1(f) requires § Alaska Bar Rule practice in Rule 15. The is defined law— word “Committee” for admission meaning 1(d) the Committee of Law § remain bona fide resident of Be and period appointed beginning the Board Gover- for a Examiners State of Alaska upon prior Association. nors Alaska Bar first least 30 *10 The states: procedures spelled deference to the
Our in the Bar
out Rules does not have a
jurisdictional foundation, however, since has the power
this court inherent to in-
tercede time in admission matters.
If court has the in- power inherent matters, at any
tercede time in admission regard
without to the requirements of the Rules, then the situation between
Bar and is truly chaotic and de- any guidelines.
void point I wish pro-
to make that because of the manner adoption
vided effectuation of as shown which 60(b) discussed,
I have there is a clear limitation power
on the inherent this court relat-
ing to admissions once the court has
proved the Bar Rules governing such mat-
ters. These rules allocate the be- functions
tween the Bar and this court. that the
I submit court did not power
inherent dispense relax or regarding
Bar Rule 3 the time for
applications for admission to the bar uphold I would the decision Governors, Board of is con-
trary by majori- decision reached
ty of court. THURLKILL, Appellant,
John Louis
v. Alaska, Appellee.
STATE of
No. 2735.
Supreme Court of Alaska.
June