Bring v. North Carolina State Bar

Justice Orr

dissenting.

In State v. Harris, 216 N.C. 746, 6 S.E.2d 854 (1940), this Court set forth the standard for legislative delegation of authority as follows:

*661In licensing those who desire to engage in professions or occupations as may be proper subjects of such regulation, the Legislature may confer upon executive officers or bodies the power of granting or refusing to license persons to enter such trades or professions only when it has prescribed a sufficient standard for their guidance. . . .
While the power to make rules and regulations to carry into effect the laws confided to them for administration is often given to administrative bodies, and while in instances there may be some doubt as to whether the proposed regulation is legislative in character or in pursuance of a delegable power, it is clear that in a statute of this kind, giving the important power of admitting or excluding persons from a business, trade, or profession, only the Legislature can create the standards and provide the reasonable limits within which the power must be exercised.

Id. at 754-55, 6 S.E.2d at 860 (citations omitted). Until today, this Court has not essentially wavered, from adherence to this test. However, the majority decision unfortunately strays far afield from this time-honored requirement. In the case before us, the only guidance given in N.C.G.S. § 84-24 to the Board of Law Examiners is that the Board “make, alter and amend such rules and regulations for admission to the Bar as in their judgment shall promote the welfare of the State and the profession.” N.C.G.S. § 84-24 para. 6 (1995). I find this guidance to be totally inadequate in that it is a sweeping delegation of legislative power to the Board of Law Examiners with no guidance or standards being set forth. This broad delegation allows the Board to make policy, rather than follow the policy set by the legislature. The Court’s opinion in Harris was more recently affirmed in Guthrie v. Taylor, 279 N.C. 703, 185 S.E.2d 193 (1971), cert, denied, 406 U.S. 920, 32 L. Ed. 2d 119 (1972):

When the General Assembly delegates to administrative officers and agencies its own power to prescribe detailed administrative rules and regulations governing the right of individuals to engage in a trade or profession, the statute granting such authority must lay down or point to a standard for the guidance of the .officer or agency in the exercise of his or its discretion. Otherwise, such statute will be deemed an unlawful delegation by the General Assembly of its own authority.

Id. at 712, 185 S.E.2d at 200. It should be pointed out that the legislature has in fact provided far greater guidance for licensing members *662of other professions, such as physicians, dentists, psychologists, accountants, architects, engineers, and real estate brokers. There is no adequate explanation, nor is one offered, that justifies a failure to set standards for admission to the legal profession while articulating in detail various required standards in other professions.

Furthermore, it is uncontroverted that the authority delegated the Board of Law Examiners has at least in part been delegated to the American Bar Association (ABA), a voluntary organization over which this Court, the Board of Law Examiners, nor the General Assembly has any authority. N.C.G.S. § 84-24 provides that the Board of Law Examiners will set the standard for admission to the Bar. Rule .0702, adopted by the Board of Law Examiners, provides that an applicant “shall prove to the satisfaction of the board that said applicant has graduated from a law school approved by the Council of the North Carolina Bar.” Rules Governing Admission to Practice of Law .0702, 1998 Ann. R. N.C. 592. No criteria have been promulgated as to what the Council will consider in approving a law school. The Council’s recent practice is to accept only schools that have been accredited by the ABA. The Council’s and through it the Board’s reliance on ABA accreditation to determine what law schools are satisfactory is essentially a further improper delegation of the original unlawful delegation of authority.

The majority next concludes that the rule in question was properly adopted. While determining that it was unnecessary to comply with the general rule-making authority of the Administrative Procedure Act (APA), the majority instead relies on this Court’s statutory duty to determine that the rule is not in conflict with our Constitution, which was in fact performed on 26 July 1990 and was duly recorded in volume 326, page 823 of the North Carolina Reports. It must be noted that Rule .0702 makes no mention of having the ABA determine which law schools are approved. Instead, the rule specifically requires the Council of the North Carolina State Bar to approve the law schools. Abdication of this responsibility to some other organization is a flagrant violation of the Council’s duties. As such, I would conclude that the refusal to allow Ms. Bring to take the Bar Exam because the ABA has not accredited the law school from which she graduated is arbitrary and capricious.

Ms. Bring submitted information to the Board that New College School of Law enrolled its first class in 1973. The law school has a unique mission of preparing students to practice public interest law. *663Students are required to participate in a formal apprenticeship program and receive on-the-job training as a condition of graduation. The school also has a complete law library and requires similar classes as other law schools. There are over five hundred graduates of New College currently practicing law. New College has been fully accredited since 1982 by the State Bar of California. New College has never sought ABA accreditation and has no plans to do so.

Despite this showing, the Board of Law Examiners gave no individualized consideration to the above-mentioned merits of New College, but relied solely on the fact that New College was not ABA approved to deny petitioner’s application. The Board made no specific findings as to the whether New College properly prepared its students for the practice of law and in fact refused to make any inquiry into whether the New College School of Law sufficiently met the Bar Council’s standards as to what constitutes an accredited law school. This failure to even consider the merits of New College School of Law is likewise arbitrary and capricious.

In this case, we have a graduate from a California law school that has been fully accredited by the California State Bar. In addition, Ms. Bring practiced law in good standing in the State of California for fifteen years. She sought an opportunity, not to be automatically admitted to the North Carolina Bar, but to merely sit for the Bar Examination to show her proficiency and ability to practice law in this state. Without even considering the merits of her educational and professional background, but instead relying on an accreditation process by an outside organization, the Board of Law Examiners summarily refused her right to even attempt to obtain a license to practice law by prohibiting her from taking the Bar Exam. Such a decision is arbitrary and capricious and is based solely upon an unlawful delegation of legislative power without benefit of acceptable standards, and a further delegation or abdication by the Board of Law Examiners and the State Bar Council. I therefore dissent and would hold that N.C.G.S. § 84-24 violates Article I, Section 6 and Article II, Section 1 of the North Carolina Constitution.

Justice Lake joins in this dissenting opinion.