Nielsen v. Washington State Bar Ass'n

Citations: 585 P.2d 1191; 90 Wash. 2d 818; 1978 Wash. LEXIS 1134Docket: 45314

Court: Washington Supreme Court; November 2, 1978; Washington; State Supreme Court

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Steen Nielsen, a permanent resident alien from Denmark, seeks permission to take the Washington State Bar Examination but is denied due to Admission to Practice Rule (APR) 2(B)(2), which requires applicants to be either U.S. citizens or aliens with a declared intent to become citizens. Despite his education and qualifications, Nielsen's lack of citizenship intent disqualifies him. He petitions the court to waive this rule, arguing it violates equal protection under the Fourteenth Amendment and the Washington Constitution. The court agrees, noting that rules affecting suspect classifications, such as alienage, require strict judicial scrutiny rather than minimal scrutiny. The court references prior case law, particularly Nyquist v. Mauclet, to emphasize that classifications impacting only aliens are inherently suspect and must demonstrate a compelling state interest to be upheld. The respondents argue for minimal scrutiny, claiming the rule only affects those aliens who do not declare citizenship intent, but the court counters that the rule discriminates against a specific class regardless of its non-absolute nature.

APR 2(B)(2) targets aliens, not imposing an outright bar to bar membership, but warranting strict judicial scrutiny as outlined in Mauclet. The only exception to this scrutiny arises from Foley v. Connelie, which permits citizenship requirements for certain public roles, such as police officers and key public officials involved in policy-making. The distinction between legal practice and policy-making roles is critical; the court in Griffiths emphasized that the right to practice law does not inherently involve governance responsibilities, thus requiring strict scrutiny for citizenship criteria affecting attorneys. The court noted that mere potential for judgeship does not justify imposing citizenship as a requirement for all attorneys. Furthermore, constitutional guarantees do not differentiate between citizens and resident aliens, as affirmed in Herriott v. Seattle, which criticized classifications that deem all aliens undeserving. Historical shifts in public sentiment, such as Washington's repeal of restrictions on land ownership for non-citizens, reflect a broader acknowledgment that citizenship is not essential for various life pursuits, including economic opportunities. The court concludes that discrimination against aliens must demonstrate a compelling state interest to be justifiable, prompting an examination of the state's rationale behind APR 2(B)(2).

APR 2(B)(2) permits discrimination only when necessary to serve a compelling state interest. The state has a legitimate interest in ensuring attorneys possess the requisite character and fitness. While the state may exclude individuals deemed unfit due to lack of knowledge or poor character, this case does not question the petitioner's character or fitness. The refusal to allow the petitioner to take the bar exam was solely based on his lack of citizenship status. The respondent argues this exclusion is justified by the unique societal role of attorneys and cites precedents allowing citizenship-based classifications for jurors, voters, and law enforcement. However, the text distinguishes the role of an attorney from these political functions, emphasizing that attorneys do not wield the same powers as police officers or jurors, and their work primarily constitutes a private profession. The respondent’s justification for APR 2(B)(2) fails to establish necessity, as the constitutional analysis should focus on the current responsibilities of the legal profession rather than potential future roles. The broad exclusion of non-citizens from practicing law is seen as excessive, especially when alternative measures exist to prevent non-citizens from holding judicial office. The text concludes that the Supreme Court would likely view this classification as inconsistent with the narrow scope of permissible alienage exclusions. Additionally, arguments linking citizenship to legal fitness are mentioned but not explored in depth.

The document outlines various reasons historically cited for excluding non-citizens from practicing law, including the belief that an understanding of American institutions is necessary, the inability of aliens to take an oath to uphold the Constitution, potential conflicts arising from wars with their home countries, and the notion that practicing law is a privilege rather than a right. These justifications have been challenged and refuted by various legal scholars, state courts, and the Supreme Court. 

The Washington State Bar is deemed capable of assessing the fitness of permanent resident aliens to practice law on a case-by-case basis. The court asserts that excluding non-citizens who do not intend to become citizens does not serve a compelling state interest and aligns with the Fourteenth Amendment's equal protection guarantees. The court references multiple cases that support this conclusion, emphasizing that any classifications based on alienage warrant strict scrutiny.

Consequently, the court finds void the requirement in APR 2(B)(2)(b) that necessitated a declaration of intent to become a U.S. citizen for aliens to take the bar exam. The rule is amended to allow aliens lawfully admitted for permanent residence to apply without such a declaration. The respondent is instructed to process the petitioner’s application accordingly. 

A concurring opinion expresses a belief that the previous requirement was reasonable, but acknowledges that Supreme Court decisions do not allow for its continuation. The conclusion reflects a consensus among the justices, with varying degrees of agreement on the legal rationale behind the decision.

The statute invalidated in *Nyquist v. Mauclet* requires applicants for certain benefits to be U.S. citizens or to have applied for citizenship, with specific conditions for noncitizens. In *Sugarman v. Dougall*, the court indicated that while aliens do not have a constitutional right to vote or hold high public office under the Equal Protection Clause, citizenship can be a valid criterion for such restrictions. However, citizenship requirements have been invalidated in various contexts, including the right to practice law, hold civil service positions, receive financial aid for education, and practice medicine.

Washington state law currently restricts membership in the judiciary to attorneys, as stated in its constitution, though certain nonjudicial positions, like justices of the peace, are limited to citizens. Noncitizen attorneys may face restrictions from holding specific state offices, as noted in *In re Bartz*. The legislature could impose further restrictions on noncitizen lawyers in local political positions if desired. Additionally, resident aliens contribute to society in substantial ways, similar to citizens.

Finally, the U.S. Constitution grants Congress exclusive power over naturalization, raising concerns about whether excluding certain aliens from public office could conflict with federal authority regarding citizenship.