Brown v. Supreme Court of Virginia

MERHIGE, District Judge

(dissenting in each of said cases).

Because my view of the facts of these cases and the law applicable thereto causes me to reach a conclusion different than that expressed by my colleagues, I must respectfully dissent.

My view of the case is that the issue presented is not whether the residency rule of which Titus complains or the requirement that an applicant for admission open an office for the full-time practice of law, of which Brown complains, is related to a legitimate state interest. Admittedly the State of Virginia has the right to establish standards governing the admission of attorneys to practice law, provided in so doing it does not exclude a person from the practice of law or from any other occupation in a *563 manner or for reasons that contravene the due process or equal protection clause of the 14th amendment to the Constitution. See Schware v. Board of Law Examiners, 353 U.S. 232, 238-239 , 77 S.Ct. 752 , 1 L.Ed.2d 796 (1957).

My difficulty in concurring with the majority opinion is that I view the issue' to be whether the different treatment accorded reciprocity applicants, such as the named plaintiffs herein, vis-a-vis those who are admitted by virtue of taking the bar examination bears any rational basis related to a legitimate state interest.

The Supreme Court of Virginia has stated that the object of the rule in question is to secure to the citizens of the State of Virginia an informed, stable, and responsible bar. See Application of Titus, 213 Va. 289 , 191 S.E.2d 798, at 802 . Where a state declares the purpose of a rule or law, no room is left to conceive of any other purpose it may serve. See Martin v. Walton, 368 U.S. 25, 28 , 82 S.Ct. 1 , 7 L.Ed.2d 5 (1961). It seems to me that the majority opinion dismisses the separate classifications set up by Virginia, by virtue of its treatment of those seeking admission to practice law by reciprocity as distinguished from those seeking to practice law by virtue of taking the bar examination, with the bland statement, “There is a rational basis for making separate classifications, [and that] . . . [quantitatively and qualitatively there is a solid basis for the distinction drawn.” The discussion that follows thereafter makes no further mention of the separate classifications but simply seeks to show that the requirements of Rule 1A:1 are related to a legitimate state interest.

I repeat I have no argument with this conclusion. My difficulty arises from my view that there is nowhere contained in the majority opinion a basis for treating the classifications differently, nor can I conceive of any. It seems to me beyond question that the purposes which Virginia seeks to achieve both by application of the rule in question and Code Section 54-74 are identical — to secure to the citizens of Virginia an informed, stable, and responsible bar. It follows, therefore, that the,purposes for the rule and the statute being identical, the requirements imposed upon foreign attorneys seeking to be admitted under the rule, when compared with the requirements imposed by virtue of Virginia Code Section 54-74 relating to admission by examination, are so different and unrelated to the purposes assigned as to be invidiously discriminatory.

The equal protection clause requires more of a state law than nondiscriminatory application within a class it establishes. See Rinaldi v. Yeager, 384 U.S. 305, 308 , 86 S.Ct. 1497 , 16 L.Ed.2d 577 (1965). There is also imposed a re-' quirement of some rationality in the nature of the class singled out. A classification must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed and can never be made arbitrarily and without such basis. See McLaughlin v. Florida, 379 U.S. 184, at 190 , 85 S.Ct. 283 , 13 L.Ed.2d 222 (1964).

Judicial inquiry under the equal protection clause does not end with the showing of equal application among the members of the class affected by Rule 1A:1. Courts are bound to reach and determine the question whether the separate classifications are reasonable in light of the purpose. I am fully cognizant of the rule of law that requires the widest discretion to be afforded the separate classifications established as here, but even giving the benefit of every conceivable circumstance which might suffice to characterize the separate classifications as reasonable rather than arbitrary and invidious, bearing in mind the purposes of the licensing procedures as pronounced by the Virginia Supreme Court and the different treatment of the classes, I find no rational basis for the separate classifications and the treatment afforded the members of the respective classes.

*564 In the one class, that is, those admitted by examination, there is no requirement that they be residents of the State of Virginia- in order to practice law. The only requirement as to residency in that regard is that a prospective licensee be a “resident of this state at the time his application to take the examination was filed with the board and intends to continue as a resident of this state to the time of taking the examination for which■ he applies . . . ” As to a reciprocity applicant, he must be a resident and intend to so remain, for there is a provision to remove him from the rolls should he not do so. There is no provision whatsoever relating to a successful bar examinee opening an office for the full-time practice of law. Indeed, over - twenty-five percent of the members of the Virginia Bar, the vast majority of whom were admitted by examination, not only fail to reside within the state but have no office within the state. There is no requirement even that they maintain an office, nor is there any restriction as to what the majority refers to as “moonlighting.” Yet that twenty-five percent, upon the mere payment of a de minimis license fee each year, have the right to practice law in Virginia while others, admittedly qualified, one of whom at least lives within commuting distance of Virginia, and the other a resident of Virginia, are precluded from exercising the practice of their chosen profession.

I am in full accord with the majority’s statement that the Constitution does not require things which are different in fact to be treated in law as if they were the same. I think, however, in the instant case the majority loses sight of the principle that the equal protection clause does require that in defining the separate classes the distinctions that are drawn must have some relevance to the distinction for which the classification is made. I am in full accord with the views expressed by Judge Craven in Keenan v. Board of Law Examiners of North Carolina, D.C., 317 F.Supp. 1350 (1970), citing Schware v. Bar Examiners, 353 U.S. 232, 239 , 77 S.Ct. 752, 756 , 1 L.Ed.2d 796 (1957), that the only legitimate and constitutionally permissible state objection in the licensing of attorneys is whether “the applicant is capable and fit to practice law . . . ” This is the identical purpose assigned by the Virginia authorities, i. e., to secure an informed, stable, and responsible bar.

I find nothing in either the Supreme Court of Virginia’s opinions relating to the instant matter or in the majority opinion to justify the separate classifications. To simply say quantitatively and qualitatively there is a solid basis for the distinction drawn is to reach a conclusion without assigning the reasons therefor. Arbitrary selection can never be justified by calling it classification. See McLaughlin v. Florida, supra, 379 U.S. at 190 , 85 S.Ct. 283 . There is nothing magic about the phrase “invidious discrimination; ” what it encompasses as applied to this case is a classification which rests on grounds wholly irrelevant to the state’s objective. See McGowan v. Maryland, 366 U.S. 420, 425-426 , 81 S.Ct. 1101 , 6 L.Ed.2d 393 (1961). To reach the same objective, applicants who take and pass the bar examination are treated differently than qualified reciprocity applicants, and this is discriminatory.

I deem it unnecessary, in view of the majority’s holding that the test to be applied is one of a rational basis as distinguished from a compelling state interest, to prolong this dissent, except to note that as I view the case, there being no rational basis for treating the classes differently, obviously such treatment could not p'ass the strict requirements of the compelling state interest.