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Application of Burke

Supreme Court of Arizona

April 20, 1960

Matter of the Application of John Edmund BURKE, Applicant.

Page 170

Stephen W. Connors and Scott, Cavness & Yankee, Phoenix, for applicant.

Ross D. Blakley, Phoenix, for Committee on Examinations and Admissions of State Bar of Arizona.

UDALL, Justice.

[87 Ariz. 337] This is an original application by John Edmund Burke for admission to the State Bar of Arizona. It presents one of those rare situations where, after the Committee on Examinations and Admissions, State Bar of Arizona (hereinafter called the committee) has declined to recommend the applicant for admission, the matter is brought directly to this court for determination. We were presented with a similar situation in the Application of Courtney, reported in 83 Ariz. 231, 319 P.2d 991, where the procedural steps and governing principles of law are delineated.

The following facts appear from the record: The applicant, John Edmund Burke, was born in 1908, in St. Paul, Minnesota. He studied law at St. Paul College of Law, and was admitted to practice in the State of Minnesota in 1930, and in Illinois in 1936. In 1952, he sold his home in Minnesota, terminated his law practice there, and moved his family to Arizona. He applied to the committee for permission to take the Arizona bar examination given in July of 1953. Permission was conditionally granted, the committee reserving the right to refuse to recommend him, if the character examination then being conducted should show any moral unfitness for the practice of law. Applicant took the written examination and concededly made a passing grade. However, after the results of the examination as to other applicants were announced, Burke was called before the committee for a hearing on September 25, 1953, the reporter's transcript of which is before us. Immediately thereafter Burke was notified that he would not be recommended to the court for admission as the committee (as then constituted) was of the unanimous opinion that he was 'not a fit and proper person to be admitted to the State Bar of Arizona.' A perusal of this transcript discloses that inasmuch as no specific charges had been made against him, the applicant at this hearing was largely in the dark as to the factual basis for such adverse action.

From that time until 1959 Burke made sporadic efforts through several local attorneys to have the committee reconsider its decision. Apparently his counsel were advised by members of the committee that if Burke 'got into no trouble' and 'would

Page 171

wait awhile', the committee would take the matter up again. Finally he became convinced that his only recourse was to make direct application to this court, asking that he be admitted in spite of the committee's refusal to recommend him. It is this application, filed September 28, 1959, which is now before us.

While strictly speaking this is not an adversary proceeding against the committee, yet to bring the matter to a head we issued an order to show cause. In response the committee, through its attorneys, moved to quash the order and to dismiss applicant's motion for admission upon the [87 Ariz. 338] grounds, inter alia, that a showing of cause would necessarily involve the disclosure of confidential information; judicial review was improper; the doctrine of laches should operate as a bar; and the committee as now constituted had not denied the applicant a right to re-examination and a reconsideration as to his qualifications to practice law in Arizona, nor had it as yet made a final determination of its reconsideration of the case. It should be noted that the personnel of the committee has completely changed since 1953.

With all parties represented, a hearing was held before us on December 21, 1959, at which time the following order was entered, viz.:

'An informal hearing was had on applicant's Motion for Admission to the State Bar of Arizona. Ordered that applicant may not be required by the Committee on Examinations to take another bar examination. Further ordered that the Committee investigate the conduct of the applicant during the past five years, and make recommendations to this Court based on the entire record then before it. The cause is continued to February 1, 1960, for further recommendations.'

Pursuant to this order the committee caused the applicant to appear before it on January 29, 1960, at which time an inquiry was made concerning applicant's conduct subsequent to December 21, 1954. Thereafter on February 8, 1960, the committee advised this court that 'such hearing did not develop any facts adverse to the applicant.' Nevertheless the committee did unanimously 'recommend against the admission of the applicant to the State Bar of Arizona.' At the same time the committee filed with the court a sealed confidential character report by the National Conference of Bar Examiners relative to John Edmund Burke, as well as its own confidential office file containing intercommunications between its scattered members. The entire record has now been painstakingly scrutinized, but for reasons hereinafter stated we cannot in fairness to applicant use that data which is marked confidential.

We do not deem it necessary to make any formal ruling on the motions to quash and dismiss for the reason that we believe the matter should be determined on its merits. The plea of laches--five-year delay--in bringing the matter before us is defeated solely by reason of the representations made by the committee to applicant that the matter was still subject to rehearing.

As we pointed out in the Courtney case, supra, it is not the function of the committee to grant or deny admission to the bar. That power rests solely in the Supreme Court (83 Ariz. 233, 319 P.2d 991). The committee's bounden duty is to [87 Ariz. 339] 'put up the flag' as to those applicants about whom it has some substantial doubt. If such doubt exists, then its recommendation should be withheld. The applicant may feel that any questions raised as to his character or qualifications are without substance. In such case, he may apply diectly to this court for admission. In the final analysis--it being a judicial function--we have the duty of resolving those questions, one way or the other, ...

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