OFFICES AND OFFICERS ‑- STATE ‑- WASHINGTON STATE BAR ASSOCIATION ‑- CONSTITUTIONALITY OF STATE BAR ACT
The Washington State Bar Act (chapter 2.48 RCW) is not unconstitutional by reason of Article XII, § 1 of the Washington state constitution since the State Bar Association is a public agency and not a private corporation.
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March 5, 1975
Honorable A. N. Shinpoch
State Representative, 11th District
Olympia, Washington 98504 Cite as: AGLO 1975 No. 20
By recent letter you have advised us of a communication to you from one of your constituents in which it was asserted that the Washington State Bar Act (chapter 2.48 RCW) is unconstitutional by reason of Article XII, § 1 of the Washington state constitution which provides that:
"Corporations . . . shall not be created by special acts. . . ."
You have asked for our views with respect to that contention. We respond in the manner set forth in our analysis.
The Washington State Bar Act, presently codified as chapter 2.48 RCW, was passed by our legislature more than forty years ago as chapter 94, Laws of 1933. Thus, we must begin our response to your inquiry by informing you that, as a matter of policy, it would be inappropriate for us now to attempt to pass upon the constitutionality of this duly enacted law in an attorney general's opinion. As is explained in AGO 1971 No. 12 [[to Gordon L. Walgren, State Senator on March 16, 1971]], copy enclosed, it has been the consistent policy of this office since statehood to presume the constitutionality of any statute which has been duly enacted by our legislature.
"'. . . The power to declare an act constitutional or unconstitutional is vested solely in the courts. Consequently, nothing can be gained by this office expressing an opinion as to the constitutionality of a statute. A pronouncement of unconstitutionality would merely cause confusion and disorder among the administrative officers whose duty it is to give effect to the presumption of constitutionality [[Orig. Op. Page 2]] which attaches to all laws until declared otherwise by a court of competent jurisdiction.'"
Lest this expression of our policy position be taken, however, to infer some degree of doubt in our minds as to the constitutional validity of the here subject legislation we believe it appropriate to go on, briefly, in order to dispell any such thoughts. The issue raised is whether the state bar association is a private corporation so as to render its creation by the 1933 legislature an apparent violation of Article XII, § 1,supra,1/ or whether, instead, it is a public agency which the legislature was free to establish as an aid to the supreme court in regulating the practice of law in this state.
Section 2 of the state bar act itself, now codified as RCW 2.48.010, provides the basis for a ready answer to that question. This section, by which the state bar association was created, reads as follows:
"There is hereby createdas an agency of the state, for the purpose and with the powers hereinafter set forth, an association to be known as the Washington State Bar Association, hereinafter designated as the state bar, which association shall have a common seal and may sue and be sued, and which may, for the purpose of carrying into effect and promoting the objects of said association, enter into contracts and acquire, hold, encumber and dispose of such real and personal property as is necessary thereto." (Emphasis supplied.)
[[Orig. Op. Page 3]] Accord, our prior opinion of June 17, 1969 [[an Informal Opinion to Robert V. Graham, State Auditor]], to the state auditor, copy enclosed, in which, relying upon the above underscored portion of this statute, we ruled that the financial affairs of the bar association are subject to audit under the provisions of chapter 43.09 RCW. In summary, we there said:
". . . the Washington state bar association is an agency of the state. Its funds are derived from sources provided by law and constitute '. . . fines, penalties, fees, licenses, . . . or other income provided by law, . . .' within the meaning of RCW 43.09.290 and .310 [[RCW 43.09.310]]. It is, therefore, subject to post-audit by the state auditor."
A second statutory provision to be noted in support of this same conclusion is RCW 43.10.067, codifying (in part) § 4, chapter 50, Laws of 1941. This statute, which was enacted some eight years after the passage of the state bar act, specifically exempts the state bar association from the general requirement that all state agencies must utilize the attorney general's office exclusively for legal assistance. Had the legislature regarded the bar association to be a private corporation, this 1941 enactment would hardly have been necessary.
And thirdly, touching directly upon the heart of the matter, there is the further factor that any ambiguities in the state bar act must, under repeated directives by our state supreme court, be resolved in favor of a construction of the act which supports its constitutionality rather than one which would render it unconstitutional or open to grave doubt in that respect. Accord,Soundview Pulp Co. v. Taylor, 21 Wn.2d 261, 150 P.2d 839 (1944), and numerous cases cited therein. If the Washington state bar association were, in fact, to be viewed as a private corporation (as your constituent has asserted) the act would, quite possibly be unconstitutional under both Article XII, § 1 and Article II, § 28(6),supra. See,Jackson v. Gallet, 39 Idaho 382, 228 Pac. 1068 (1924), a case in which the court struck down a 1923 act of the Idaho legislature creating a board of commissioners to govern that state's bar on the ground (among others) that it created a corporation in violation of Article VIII, § 19 of the Idaho constitution which, like our own Article XII, § 1, supra, [[Orig. Op. Page 4]] prohibits the creation of a private corporation by a special act.2/ Moreover, our research discloses that this experience by our neighbor state in the establishment of its integrated state bar association was expressly brought to the attention of our own state bar at its annual convention in 1930, and undoubtedly played a part in the drafting of the Washington state bar act for presentation to our own legislature in 1933. See, 5 Wash.L.Rev. 162, et seq.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/See, also, Article II, § 28 of the Washington constitution which prohibits the legislature,
". . . from enacting any private or special laws in the following cases:
". . .
"(6) For granting corporate powers or privileges."
2/To be compared with this case is the later Idaho case of In re Edwards, 45 Idaho 676, 266 Pac. 655 (1928), in which the court upheld the Idaho state bar act following certain changes in the original 1923 law which were passed by the 1925 Idaho legislature.