Alabama State Bar ex rel. Steiner v. Moore

• Decision Date: 11 July 1968
• Docket Number: 3 Div. 273
• Citation: 213 So.2d 404,282 Ala. 562
• Parties: ALABAMA STATE BAR ex rel. Robert E. STEINER, III, as President v. Bob MOORE, Jr., as Judge of the Twenty-Fifth Judicial Circuit.
• Court: Alabama Supreme Court

Page 404

213 So.2d 404

282 Ala. 562

ALABAMA STATE BAR ex rel. Robert E. STEINER, III, as President v. Bob MOORE, Jr., as Judge of the Twenty-Fifth Judicial Circuit.

3 Div. 273.

Supreme Court of Alabama.

July 11, 1968.

Rehearing Denied Aug. 22, 1968.

Wm. H. Morrow, Jr., Gen. Counsel for Alabama State Bar.

Goodwyn, Smith & Bowman, Montgomery, and Curtis, Maddox & MacLaurin, Jasper, for appellee.

KOHN, Justice.

On July 10, 1964, the Grievance Committee of the Alabama State Bar preferred charges against the appellee, Bob Moore, Jr., for violating or failing to comply with Rule 36, Section A of the Rules Governing Conduct of Attorneys in Alabama, as last amended, and as formulated and promulgated by the Board of Commissioners of the Alabama State Bar, and approved by the Supreme Court of Alabama. Rule 36, Section A, supra, provides as follows:

'No person heretofore or hereafter admitted to practice law in Alabama, shall * * *

'No person licensed to practice law in the Courts of the State of Alabama shall be guilty of any conduct unbecoming an attorney at law.'

Appellee, Bob Moore, Jr., filed a special plea, in essence, challenging the jurisdiction of the Board of Commissioners of the Alabama State Bar to discipline a duly qualified and acting Circuit Judge, and alleging, inter alia, that 'the Constitution and laws of the State of Alabama provide that Judges of the Circuit Courts can be removed from office only by the Supreme Court of Alabama.'

Robert E. Steiner, III, as President of the Alabama State Bar, issued an order that on September 21, 1966, evidence would be taken in said cause before Honorable William B. Eyster, a Commissioner designated by the President.

On August 31, 1966, appellee filed his petition for writ of prohibition, praying that a rule nisi issue directed to said Robert E. Steiner, III, as President of the Alabama State Bar, and to said William B. Eyster, as Commissioner, designated by said President, directing that they desist from further proceeding in said cause, and directing that they show cause at a date and time to be fixed by the Court why they should not be prohibited from proceeding further with the said charges; and further praying that upon final hearing a writ of prohibition be granted, directing that Robert E. Steiner, III, as President of the Alabama State Bar, William B. Eyster, as Commissioner designated by the said President, the Board of Commissioners of the Alabama State Bar, and all other officers and committees, desist from the further prosecution of said charges against Bob Moore, Jr.

In support of the charges brought against the appellee, it was alleged that a large number of divorces were granted by the appellee to parties 'which he knew or had reasonable cause to believe' were not bona fide residents of the State of Alabama. The principal facts alleged to establish such knowledge were: That the names of the parties were strange to the names of native Alabamians; that some of the pleadings were not signed by an attorney, nor the address of a pro se party stated; and that costs in some cases were paid by certain named attorneys in Birmingham and Haleyville. There was no assignment of facts showing immoral or improper conduct on the part of appellee in his private capacity.

The issue upon which a disposition of this appeal rests is whether a judge may be disciplined or disbarred by the Board of Bar Commissioners of the State of Alabama during the term in which he is holding office for acts performed in a judicial capacity. Another aspect of the issue is whether a judge, while serving as such, is a member of the State Bar. We believe that better reasoned decisions of courts of other jurisdictions adhere to the principle that the Bar cannot remove or discipline a judge for conduct as such judge acting in his judicial capacity, In re Borie, 166 La. 855, 118 So. 45; In re McGarry, 380 Ill. 359, 44 N.E.2d 7, nor can the Bar remove or discipline a judge where the Constitution provides the exclusive method of removal. In re Jones, 202 La. 729, 12 So.2d 795; Petition of Colorado Bar Association, 137 Colo. 357, 325 P.2d 932; Chambers v. Central Committee of Oklahoma Bar Association, 203 Okl. 583, 224 P.2d 583; In re Strahl, 201 App.Div. 729, 195 N.Y.S. 385; State Bar of California v. Superior Court in and for Los Angeles County, 207 Cal. 323, 278 P. 432.

In this jurisdiction, the early decision by Justice Peters, in the case of State v. Gardner (1869), 43 Ala. 234, is authority for the principle that when a judge is once inducted into office, and is competent to hold such office when elected, he could only be ousted or removed in the manner prescribed in the Constitution of Alabama. Although State v. Gardner, supra, interpreted an earlier constitutional provision, this provision is similar to the provision involved in this case. Justice Peters stated the reasoning of the court, as follows:

'* * * When a judge is once inducted into office, and is competent to hold it when elected, he can only be ousted or removed in the manner prescribed by the constitution of the State. If he has been guilty of an impeachable offense, he must be impeached before the senate. If he has been guilty of an offense 'for any willful neglect of duty, or any other reasonable cause which shall not be a sufficient ground of impeachment,' he must be removed by the governor, 'on the address of two-thirds of each house of the general assembly.' Const. of Ala. (1868), art. 4, § 23, ib. art. 6, §§ 1, 23. These articles of the constitution clearly vest in certain departments of the government the jurisdiction to try impeachments, and to try applications for removal of judges from office in this State. This makes the jurisdiction exclusive, and no other tribunal can exercise the powers thus conferred, except those departments of the government mentioned in the constitution itself. Expressio unius est exclusio alterius, is a maxim acknowledged by this court to be a rule of law as well as of logic. This forbids a different construction of the constitution than that here insisted on.--Broom's Max. 505; The State, ex rel. (Attorney General) v. Porter, 1 Ala.R. 688, 698; Hamilton v. Williams, 26 Ala. 527, 531; Haley v. Clark, 26 Ala. 439; Const. of Ala., art. 3, §§ 1, 2. * * *'

This, in substance, means that there can be no collateral approach to ousting a judge, for such prerogative is reserved to the State by the Constitution. In effect, the action of the Bar amounts to an attempt to remove a judge by indirection rather than by constitutional means.

Here, the acts complained of were not by a judge in his alleged capacity as a lawyer, but were judicial actions. Erroneous or reprehensible as they may be, the conduct complained of was not conduct unbecoming an attorney at law enumerated by Rule 36, Section A of the Rules Governing Conduct of Attorneys in Alabama. It is, therefore, clear that the forum for actions against lawyers is a separate forum or jurisdiction than that provided by the Constitution for ousting judges. Article 4, § 60, Article 6, § 154, and Article 7, § 175 of the Constitution of Alabama, 1901, are the constitutional provisions relative to judges that are important in this case, and are as follows:

'Sec. 60. No person convicted of embezzlement of the public money, bribery, perjury, or other infamous crime, shall be eligible to the legislature, or capable of holding any office of trust or profit in this state.'

'Sec. 154. Chancellors and judges of all courts of record shall have been citizens of the United States and of this state for five years next preceding their election or appointment, and shall be not less than twenty-five yeras of age, and, except judges of probate courts, shall be learned in the law.'

'Sec. 175. The clerks of the circuit courts, or courts of like jurisdiction, and of criminal courts, tax collectors, tax assessors, county treasurers, county superintendents of education, judges of inferior courts created under authority of section 168 of this constitution, coroners, justices of the peace, notaries public, constables, and all other county officers, mayors, intendants, and all other officers of incorporated cities and towns in this state, may be removed from office for any of the causes specified in section 173 of this constitution, by the circuit or other courts of like jurisdiction or a criminal court of the...