Matter of Moore

303 S.E.2d 810 (1983)

In the Matter of Jerry Banks MOORE Applicant to The 1978 Bar Examination.

No. 40A83.

Supreme Court of North Carolina.

July 7, 1983.

*814 Vaughan S. Winborne, Raleigh, for applicant appellant.

Rufus L. Edmisten, Atty. Gen., by Asst. Atty. Gen. Harry H. Harkins, Jr., for Board of Law Examiners appellee.

COPELAND, Justice.

In his first argument the applicant, Mr. Moore, maintains that the decision of the Board of Law Examiners dated 30 June 1982 is in violation of established procedural rules. The basis of this contention is that there was not a quorum of the members present and participating when critical decisions *815 concerning his cause were made. In the alternative Mr. Moore asserts that the record lacks sufficient evidence from which a determination can be made that the Board was meeting and acting with a quorum of its members present.

The record indicates that the Board decided to restrict review of the applicant's cause on remand from this Court to those members of the Board who were present when the testimony was heard in July of 1978. This decision was noted in the Board's order of 21 August 1981 but the applicant did not contest the decision until the action was pending in Superior Court, Wake County after the Board's decision of 30 June 1982. Although the applicant argues that the record does not adequately show that a quorum of the Board was present when decisions critical to his cause were made, we hold that a letter sent by counsel for the Board asserting that a quorum was present and offering to provide affidavits of sworn testimony before Judge Hobgood is sufficient to establish that a quorum of the Board was present and participating when a decision was made on Mr. Moore's application.

The applicant contends that even if the record is sufficient to establish which members of the Board participated in the decision in his cause, those members of the Board which were present in July of 1978 at the original hearings do not constitute a quorum of the Board as it existed in June of 1982. The law in this State is that in the absence of a statutory rule to the contrary, a quorum is constituted when a majority of the membership is present. Edwards v. Board of Education, 235 N.C. 345, 70 S.E.2d 170 (1952). The Board of Law Examiners is comprised of eleven members of the Bar elected by the council of the North Carolina State Bar. G.S. 84-24. Any six of the eleven members of the Board may constitute a quorum. In reviewing the record we find that there were six members of the Board who participated in the decision of 30 June 1982 who were also present when testimony was heard in July of 1978. In addition, those same six members were present in August of 1981 when the Board denied Mr. Moore's request to offer several letters of reference written during May of 1981. Each of these actions, the decision of 30 June 1982 and the decision of 21 August 1981, were taken upon the unanimous vote of six members of the Board. As a result these actions were proper.

However, the record indicates that at a meeting of the Board on 15 May 1981, while eight members were present, only four of those members participating in Mr. Moore's case were present. Clearly any action taken by these four members would not be an action of the Board since four is neither a quorum nor a majority of the membership. Although any action taken by the Board in Mr. Moore's case on 15 May 1981 was not an official decision of the Board, it is not prejudicial since all rulings made on 15 May 1981 were favorable to the applicant.

We hold that the Board's decision to restrict review of Mr. Moore's application to those members who heard the live testimony was reasonable in light of the circumstances in this case where the credibility of the various witnesses was crucial to a fair determination. We also hold that a unanimous vote by six members of the eleven member Board constitutes an action by a quorum and a majority of the membership and any action by such a majority is proper.

The applicant next attacks the Board's findings of fact and conclusions as not being supported by substantial evidence. Specifically the applicant asserts that there was not substantial evidence to support the Board's findings: (1) that he threatened to kill a man named Barney Adler in 1966; (2) that he made belligerent statements to the secretary of a man with whom his wife was having a dispute; (3) that he lied under oath while testifying before the Board and (4) that he purposefully omitted a conviction for assault on a female from his application and registration forms in an attempt to mislead the Board. In reviewing the applicant's challenges to the Board's findings and conclusions we employ *816 the "`whole record' test to determine if they are supported by substantial evidence.'" In re Elkins, 308 N.C. 317, 302 S.E.2d 215, 217 (1983): see also In re Rogers, 297 N.C. 48, 253 S.E.2d 912 (1979). "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126, 140 (1938); accord, Commissioner of Insurance v. Automobile Rate Office, 287 N.C. 192, 214 S.E.2d 98 (1975). Under the "whole record" test we must review all the evidence, that which supports as well as that which detracts from the Board's findings, and determine whether a reasonable mind, not necessarily our own, could reach the same conclusions and make the same findings as did the Board. In re Elkins, 308 N.C. 317, 302 S.E.2d 215 (1983); Thompson v. Board of Education, 292 N.C. 406, 233 S.E.2d 538 (1977). The whole record indicates that there is substantial evidence to support the Board's findings and conclusions.

The Board found that the applicant, Mr. Moore, threatened to kill Mr. Barney Adler on or about 13 August 1966. Aside from the fact that Mr. Moore killed Barney Adler on 29 August 1966, the Board heard testimony from the father of Barney Adler who stated under oath that he overheard Mr. Moore threaten the life of his son because his son, Barney Adler, was having an affair with Mr. Moore's wife. The Board also found that Mr. Moore made belligerent statements to Ms. Ira Myers in 1970 and again in 1973 or 1974. Ms. Myers testified under oath before the Board that the applicant told her in 1970 "My government took me into service; they taught me how to kill; and, the more people I killed the more medals and pay I received, but when I came home and did what my government taught me, they punished me." She also testified that Mr. Moore told her in the summer of 1973 or 1974, while his wife was involved in a tenure dispute with Ms. Myers' boss, that, "I don't like to see anyone hurt the woman I love. I have already killed one man and I have paid for it and it did me no harm. I would not hesitate to kill another man who hurt the woman I love."

The applicant, Mr. Moore, testified under oath that he did not make any of the statements sworn to by Mr. Adler or Ms. Myers. This created a factual dispute between the testimony of Mr. Moore and the testimony of Mr. Adler and Ms. Myers. "It is the function of the Board to resolve factual disputes." In re Elkins, 308 N.C. 317, 302 S.E.2d 215, 217 (1983); In re Rogers, 297 N.C. 48, 253 S.E.2d 912 (1979). In the case sub judice the Board found that Mr. Moore made the threatening statements which Mr. Adler and Ms. Myers testified he had made. In reviewing the entire record and considering all evidence which detracts from the Board's findings we conclude that the sworn testimony of Mr. Adler and Ms. Myers constitutes "substantial evidence" and is sufficient to support the decision of the Board.

The Board also found that Mr. Moore perjured himself before the Board when he denied making the three statements testified to by Mr. Adler and Ms. Myers. The applicant contends that the Board did not have "substantial evidence" on which to base its finding that he lied under oath during his testimony to the Board in 1978. This finding by the Board is supported by the sworn testimony of Mr. Adler and Ms. Myers. In addition the Board, unlike a reviewing court, had the opportunity to observe each witness's demeanor during both direct and cross-examination. Although a different Board could have found contrary to the Board's finding that the applicant perjured himself, the Board's conclusion is reasonable under the evidence and therefore must stand. Thompson v. Board of Education, 292 N.C. 406, 233 S.E.2d 538 (1977).

The Board of Law Examiners also found that the applicant attempted to mislead the Board and its investigation by purposefully failing to disclose a criminal conviction of assault on a female. Once again the applicant maintains that there is no *817 "substantial evidence" in the record to support the Board's finding. The record indicates that Mr. Moore failed to disclose his assault on a female conviction on two separate occasions. The first failure to disclose occurred when the applicant failed to make a notation of the conviction on his application to take the 1978 bar examination filed 5 January 1978. The second failure to disclose occurred when no notation concerning the conviction was made on his registration form filed 10 February 1978. Both the application form and the registration form specifically required the applicant to disclose separately each prior criminal conviction. In fact disclosure was not made until 1 July 1978 when Mr. Moore amended his application. The amendment was made five days before the Board's hearing on Mr. Moore's character and eight days after the applicant received notice of the hearing which suggested that his failure to disclose his prior conviction would be addressed at the hearing.

Mr. Moore did not contest the fact that he failed to disclose the assault on a female conviction. However, he did assert that the omission was a product of a faulty memory. He maintains that he was very busy at the time he filled out the application and registration and that because his murder conviction arose from an incident occurring one month after the assault on a female charge, his memory of the assault conviction was overshadowed. Mr. Moore was a law student at the time he filled out the application and registration forms. The murder and assault on a female convictions were completely separate in all respects and there was no legitimate reason why he would have been confused. Therefore, the Board had substantial evidence on which to base its decision that Mr. Moore purposely failed to disclose his conviction of assault on a female.

Finally the applicant asserts that there was not substantial evidence to support the Board's conclusion that he, Jerry Banks Moore, did not presently possess good moral character. The Board stated that Mr. Moore's 1966 murder conviction was not determinative of his moral character in 1978. However, the Board was particularly interested in finding out whether Mr. Moore, a convicted murderer, had been sufficiently rehabilitated within the twelve years period between the murder and his application to take the 1978 Bar Examination. The Board found that applicant Moore made threatening and belligerent statements as late as 1973 or 1974. In addition, the Board found that he purposely omitted a criminal conviction from both his application form and registration form. The Board also found that Mr. Moore lied under oath during his testimony before the Board in 1978. These findings constitute a reasonable basis from which the Board could determine that applicant Moore had not been completely rehabilitated and that he did not possess the moral character necessary to stand for the 1978 Bar Examination. It shall be noted that the applicant's moral character to stand for any future Bar Examination is not determined by this opinion.

We, therefore, affirm the Order of the Superior Court, Wake County, which affirmed the Board of Law Examiners' decision of 30 June 1982 denying the applicant's request to stand for the 1978 Bar Examination.

AFFIRMED.