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Bowens v. Board of Law Examiners

Filed: May 4, 1982.

LARRY DEAN BOWENS, D. LESTER DIGGS, WILLIAM R. FEWELL, JR., CLIFTON EDWARD GRAVES, JR., FRED HARRISON, KAREN IANTHA JACKSON, MICHELLE JACKSON, EARL FREDERICK JONES, NAY L. MALLOY, EMERY L. RANN, III, AND DENISE MAJETTE WELCH
v.
THE BOARD OF LAW EXAMINERS OF THE STATE OF NORTH CAROLINA; ROBERT C. HOWISON, JR., INDIVIDUALLY AND IN HIS REPRESENTATIVE CAPACITY AS CHAIRMAN OF THE BOARD OF LAW EXAMINERS OF THE STATE OF NORTH CAROLINA, HORACE E. STACY, JR., W. H. MCELWEE, WALTER R. MCGUIRE, FRANCES I. PARKER, ERIC C. MICHAUX, JAMES MULLEN, C. EDWIN ALLMAN, JOHN T. ALLRED, JOHN D. WARLICK, JR., AND JAMES L. NELSON, INDIVIDUALLY AND IN THEIR REPRESENTATIVE CAPACITIES AS MEMBERS OF THE BOARD OF LAW EXAMINERS OF THE STATE OF NORTH CAROLINA, AND FRED P. PARKER, III, INDIVIDUALLY AND IN HIS REPRESENTATIVE CAPACITY AS EXECUTIVE SECRETARY TO THE BOARD OF LAW EXAMINERS OF THE STATE OF NORTH CAROLINA



Appeal by plaintiffs from Hobgood, Judge. Judgment entered 26 February 1981 in Superior Court, Wake County. Heard in the Court of Appeals 1 February 1982.

Morris, Chief Judge. Judges Vaughn and Martin (Harry C.) concur.

Morris

Plaintiffs allege that G.S. 84-24 affects their fundamental human right to practice their chosen profession and that the statute is an unconstitutional delegation of legislative authority; therefore, they have stated a cause of action for declaratory judgment under G.S. 1-253 and defendants' Rule 12(b)(6) motion was improvidently granted. We disagree and hold that dismissal was proper.

The complaint is couched partly in terms of an alleged denial of plaintiffs' rights under the Fourteenth Amendment to the United States Constitution. Plaintiffs' memorandum in opposition of the motion to dismiss describes the prerogative to practice one's chosen profession as a "fundamental human right," said to be, in the case at hand, the privilege of practicing law. The right to practice law is an earned right, however, Baker v. Varser, 240 N.C. 260, 82 S.E.2d 90 (1954), and it has been acknowledged by this land's highest court that a state may require a showing of proficiency in its law before it admits an applicant to the Bar. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957). We are otherwise unaware of any unqualified natural or constitutional right to pursue a given calling, and turn immediately to plaintiffs' argument, grounded on Article II, Section 1 of the North Carolina Constitution, that G.S. 84-24 is an unlawful delegation of legislative authority.

G.S. 84-24 establishes the Board of Law Examiners as an administrative agency of the State, with the duty of examining applicants and providing rules and regulations for admission to the Bar. In re Willis, 288 N.C. 1, 215 S.E.2d 771, appeal dismissed, 423 U.S. 976, 96 S. Ct. 389, 46 L. Ed. 2d 300 (1975).

It is well established that the constitutional power to establish the qualifications for admission to the Bar of this State rests in the Legislature. In Re Applicants for License, 143 N.C. 1, 55 S.E. 635 (1906); accord, Baker v. Varser, 240 N.C. 260, 82 S.E.2d 90 (1954); State v. Ballance, 229 N.C. 764, 51 S.E.2d 731 (1949); State v. Harris, 216 N.C. 746, 6 S.E.2d 854 (1940); Seawell, Attorney-General v. Motor Club, 209 N.C. 624, 184 S.E. 540 (1936); State v. Lockey, 198 N.C. 551, 152 S.E. 693 (1930). It is equally well settled that the Legislature may delegate a limited portion of its power as to some specific subject matter if it prescribes the standards under which the agency is to exercise the delegated authority. Turnpike Authority v. Pine Island, 265 N.C. 109, 143 S.E.2d 319 (1965).

Id. at 14-15, 215 S.E.2d at 779. The Legislature, however, "may confer upon executive officers or bodies the power of granting or refusing to license persons to enter . . . trades or professions only when it has prescribed a sufficient standard for their guidance." State v. Harris, supra at 754, 6 S.E.2d at 860. The subjective touchstone of "character and general fitness" to which the Board of Law Examiners must refer has been deemed a constitutional standard by the North Carolina Supreme Court. In re Willis, supra. Plaintiffs in the present action attack the other inquiry authorized by G.S. 84-24, i.e., examination of applicants to the Bar, as an unlawful delegation of legislative authority.

G.S. 84-24 stipulates that "[t]he examination shall be held in such manner and at such times as the Board of Law Examiners may determine." The requirement to conduct examinations is, in itself, a guideline, and any stricter

equipped to adapt legislation "to complex conditions involving numerous details with which the Legislature cannot deal directly." (Citations omitted.)

Adams v. Department of Natural and Economic Resources and Everett v. Department of Natural and Economic Resources, 295 N.C. 683, 696-97, 249 S.E.2d 402, 410 (1978). The law is complex, protean, and ever-growing. We can think of no more appropriate delegation of authority than that of testing to determine a capability to practice within its seamless fabric. The legislative goal being the protection of the public interest by the maintenance of a competent Bar, the determination of proficiency becomes a ministerial function, not a matter of managing public affairs. The Board of Law Examiners is, therefore, not required "'. . . to make important policy choices which might just as easily be made by the elected representatives in the legislature,'" id. at 697-98, 249 S.E.2d at 411, but merely to compile and administer examinations. Form, grading and logistics only are left to the Board, which does no violence to constitutional principle.

Plaintiffs' complaint alleges that the rules and regulations of the Board of Law Examiners are a violation of the Fourteenth Amendment to the United States Constitution because they contain no ascertainable grading standards. By challenging the subjective criteria required to grade the exam, which is largely essay in form, plaintiffs indirectly attack the form of the examination itself. Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975), cert. denied, 426 U.S. 940, 96 S. Ct. 2660, 49 L. Ed. 2d 393 (1976). Essay examinations utilized in testing are rationally related to applicants' fitness to practice law, Chaney v. State Bar of California, 386 F.2d 962 (9th Cir. 1967), cert. denied, 390 U.S. 1011, 88 S. Ct. 1262, 20 L. Ed. 2d 162, reh. ...


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