State Ex Rel. Mansfield v. State Board of Law Examiners

McCLINTOCK, Justice.

Lorraine J. Mansfield, a resident of Laramie County, Wyoming, but still a Canadian citizen, filed with the State Board of Law Examiners her request to take the examination given by that board pursuant to applicable Wyoming statutes as a prerequisite for admission to practice before this court. Petitioner complied with all requirements imposed by the board and, subject to examination, was eligible to membership in the bar of this state, except that she was not then and is not presently a citizen of the United States. She is a Canadian citizen, living in Laramie County, Wyoming, and in *175January of 1978 became a permanent resident of the United States by authority of the United States Immigration and Naturalization Service. She has signified her intention to become a citizen of the United States as quickly as possible but will in all probability not succeed in that endeavor until the year 1981. She is married and lives in Laramie County, Wyoming, with her husband and one child of the marriage.

The board at first expressed doubt as to the right of petitioner to take the examination because of her noncitizenship. This attitude of the board was dictated by § 33-5-105, W.S.1977, providing that “[n]o one shall be admitted to the bar of this state who shall not be an adult citizen of the United States.” Petitioner then filed with this court an original Petition for Writ of Mandamus, alleging the unconstitutionality of the statute, seeking to compel the board to permit her to take the examination, and upon her successful completion thereof to recommend her admittance to the Wyoming bar, notwithstanding her lack of citizenship.

In the meantime and prior to any action by this court, the board signified its willingness to permit Ms. Mansfield to take the exam, but said that in the event of her passing it would not recommend her for admission until she had become a citizen of the United States. In view of this, this court on July 20, 1979 entered its order denying issuance of the writ of mandamus but retaining jurisdiction for the purpose of considering petitioner’s qualifications in the event the board should certify that she had been successful. She has been so certified, opposing briefs have been filed, and we now hold that § 33-5-105, W.S.1977, insofar as it permits only citizens of the United States to be admitted to the bar of this state is violative of the equal-protection clause of the 14th Amendment to the Constitution of the United States.

We do this on the basis of In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973). In that case the applicant was a citizen of the Netherlands, found in all respects qualified to take the Connecticut bar examination except that she was an alien. The Court held that a state which adopts a suspect classification

“ ‘bears a heavy burden of justification,’ McLaughlin v. Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964),’”

which requires that a state

“show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is ‘necessary ... to the accomplishment’ of its purpose or the safeguarding of its interest.” 413 U.S. at 721-722, 93 S.Ct. at 2855.

The Court found that this had not been done and held the Connecticut rule requiring citizenship as a condition to admission to the bar to be unconstitutional.

There is little to be gained from a long discussion of the reasons for this decision. The Constitution of the United States is the supreme law of the land and binding upon this court, Art. VI, United States Constitution, Art. 1, § 37, Wyoming Constitution, and the Supreme Court of the United States is the final arbiter as to the Federal constitution. Griffiths is as close a case to the one at bar as it is possible to have, and a majority of the court see no reason to ignore the ruling.

The Attorney General concedes that on the basis of Griffiths, Wyoming’s statute is unconstitutional, but seeks to avoid the effect thereof by reference to later cases from the same Court, none of which overrules the previous holding but which are construed by the Attorney General to represent an indication that were the question to come up again the Court would reverse its position. Particularly noted are Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978), and Ambach v. Norwick, 441 U.S 68, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979). In the first case the Court sustained a statute of the state of New York which required citizenship as a condition to appointment to the State Highway Patrol. In Ambach, the Court similarly sustained a statute disqualifying aliens from holding teaching positions in the public school system. The only mention of Griffiths in Fo*176ley is found in the dissenting opinion of Justice Marshall, 435 U.S. at 303, 98 S.Ct. 1067. The majority in Ambach refer to Griffiths in a footnote, 441 U.S. at 76, 99 S.Ct. at 1594, 60 L.Ed.2d at 56, n.6, showing no disposition to overrule the same but pointing out this contrast:

“ * * * New York’s citizenship requirement is limited to a governmental function because it applies only to teachers employed by and acting as agents of the State. The Connecticut statute held unconstitutional in In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973), by contrast, applied to all attorneys, most of whom do not work for the government. The exclusion of aliens from access to the bar implicated the right to pursue a chosen occupation, not access to public employment." (Emphasis added.)

Mr. Justice Blackmun, who had specially concurred in Foley, dissented in Ambach, discussing the applicability of Griffiths. The point is that neither opinion shows any disposition to overrule the holding in Grif-fiths. At best we could only speculate that it might at some future date overrule its earlier decision. Under these circumstances a majority of the court are of the opinion that Griffiths still represents the “supreme law of the land” which we must follow.

The order of this court will be that Ms. Mansfield be permitted to take the oath as an attorney of the bar of this state..