# State Ex Rel. Quelch v. Daugherty

> West Virginia Supreme Court · July 27, 1983 · 172 W. Va. 422

URL: https://www.frixlaw.com/law-library/cases/9853196

## Case

- **Full name:** STATE Ex Rel. John-Robin M. QUELCH, Et Al. v. George A. DAUGHERTY, Et Al., Etc.
- **Court:** West Virginia Supreme Court
- **Decided:** July 27, 1983
- **Citations:** 172 W. Va. 422; 306 S.E.2d 233
- **Precedential status:** Published
- **Opinion:** Dissent by Miller
- **Judges:** Harshbarger, Neely, Miller
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9853196

## How later opinions describe it (automated extraction)

- holding that the constitutional separation of powers prohibited the legislature from regulating admission to practice and discipline of lawyers
- holding that legislature could not enact law regulating admission to practice and discipline of lawyers

## Opinion text

MILLER, Justice,
dissenting:
It seems to me that the majority in its eagerness to demonstrate that this Court has the inherent power to regulate the practice of law has ignored the familiar postulate that a legislative act relating to the practice of law is not necessarily invalid. We recognized this principle in one of our earliest cases relating to the qualifications for the practice of law:
“But notwithstanding the jurisdiction of the courts over the subject it has been generally conceded that the legislature may in the exercise of its police power, prescribe reasonable rules and regulations for admissions to the bar, which will be followed by the courts. But the legislature may not impose unreasonable rules or deprive the courts of their inherent power to prescribe other rules and conditions of admission to practice.” In re Application for License to Practice Law, 67 W.Va. 213, 218 , 67 S.E. 597, 599 (1910).
Other states have followed this principle. The primary test used is whether the statute is compatible with the judiciary’s goal in regard to the practice of law. One of the best expressions of this rule is found in Sadler v. Oregon State Bar, 275 Or. 279, 286 , 550 P.2d 1218, 1222 , 83 A.L.R.3d 762, 768 (1976):
“ ‘The power to admit the applicants to practice law is judicial and not legislative, and is, of course, vested in the courts only. Originally the courts alone determined the qualifications of candidates for admission, but to avoid friction between the departments of government, the courts of this and other states have generously acquiesced in all reasonable provisions relating to qualifications enacted by the legislatures. Hanson v. Grattan, 84 Kan. 843 , 115 P. 646 , 34 L.R.A. (N.S.) 240; State v. Cannon, 196 Wis. 534 , 221 N.W. 603 .’ In re Greathouse, 189 Minn. 51 , 248 N.W. 735, 737 (1933).
“See, also, In re Opinion of the Justices, 279 Mass. 607 , 180 N.E. 725 , 727, 81 A.L.R. 1059 (1932).”
The court in Sadler v. Oregon State Bar, supra, concluded that the overlap of the judicial and legislative powers arises from the legislature’s police power to protect the public welfare by promoting the efficient and impartial administration of justice. See also Feldman v. State Board *427 of Law Examiners, 438 F.2d 699 (8th Cir.1971); In re Keenan, 313 Mass. 186 , 47 N.E.2d 12 (1943); Sharood v. Hatfield, 296 Minn. 416 , 210 N.W.2d 275 (1973); Creditor’s Service Corporation v. Cummings, 57 R.I. 291 , 190 A. 2 (1937); Annot., 144 A.L.R. 150 (1943).
Paradoxically, the majority does not mention, although the petitioners candidly admit, that the diploma privilege for graduates of the West Virginia University Law School was first initiated by the Legislature. 1897 W.Va. Acts 50. See In re Application for License to Practice Law, supra. It appears that this Court had no express rule relating to the diploma privilege until 1973. * When we did adopt a rule it followed the statute and extended the diploma privilege to graduates of the West Virginia University Law School. Thus, for a period of eighty years, this Court was content to follow a legislative enactment relating to the admission to the practice of law.
It is only when the Legislature took steps to withdraw the diploma privilege in 1981, which it had initially created, that this Court roused from its long slumber and declared there had been a violation of the separation of powers doctrine. One might understand this sudden awakening on the part of the majority, if they had given some reasons why the diploma privilege serves to promote the practice of law.
Only one other state, Wisconsin, currently has the diploma privilege. “Minimum Requirements for Admission to Legal Practice in the United States,” The Lawyers Almanac 1982-83, 202 (1982). With the increasing development of federal regulatory laws, uniform acts, and federal constitutional decisions which have an impact on all states, it is sheer myopia to suggest that there is some substantial body of West Virginia law that is different from the general law. Surely, it is not for the uniqueness of our law that we retain the privilege. Furthermore, the perpetuation of the diploma privilege carries with it some long term adverse consequences as several states refuse attorney admission under reciprocity unless the original admission has been by way of a bar examination. E.g., Colorado, Kansas, Kentucky, Nebraska, and Texas. “Minimum Requirements for Admission to Legal Practice in the United States,” supra.
The Montana Supreme Court considered the question of retaining the diploma privilege in In the Matter of Proposed Amendments Concerning the Bar Examination and Admission to the Practice of Law, 609 P.2d 263 (Mont.1980), and decided against its retention after a thorough analysis of the issue. I consider many of its observations extremely pertinent:
First: “There is no substantial or acceptable argument for retention of the diploma privilege. Its primary purpose has long ceased to exist — i.e. incentive to attract students to a small law school as it struggles to gain recognition in the legal community.” 609 P.2d at 268-69 .
Second: “There is, in fact, a double standard created by the diploma privilege and the Bar examination [for non-state law school graduates] as it relates to admission to the Bar.” 609 P.2d at 269 .
Third: “The fact that the law student knows he must face the Bar examination after graduation and before admission to practice is a healthy, educational stimulant. ... [I]t is also a stimulant to the law school faculty to maintain high standards of legal education because the faculty knows that their students will be examined by state authorities.” 609 P.2d at 269 .
Fourth: “[T]he Bar examination serves an additional function in that the Bar examination has one essential difference from the law school examination — it is a comprehensive examination covering the *428 entire field of several years of law study.” 609 P.2d at 269 .
Fifth: “[T]he American Bar Association has taken a positive, clear and very hard stand against the diploma privilege in connection with the standards of legal education.” 609 P.2d at 269 .
Finally, and perhaps the most telling point is that by maintaining the diploma privilege: “[W]e have effectively turned over the selection of who becomes a member of the ... Bar to ... [the faculty of the] School of Law. This is contrary to all present practice and has no recognizable redeeming value.” 609 P.2d at 265 .
For the foregoing reasons, I respectfully dissent.
The Rules for Admission to the Practice of Law were not published by Michie Publishing Company until the 1966 edition of the West Virginia Code, but this was an incomplete set of rules. The Clerk’s office of the Supreme Court of Appeals issued periodically a printed document entitled "Information Relating to Admission to the Bar of West Virginia,” which contained the admission rules. In the 1971 document under Section I entitled “Statutes,” the provisions of W.Va.Code, 30-2-1, were cited verbatim and this statute contained the diploma privilege.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9853196. Public record. Not legal advice.