Alabama State Bar v. Watson

• Decision Date: 30 November 1972
• Citation: 289 Ala. 729,272 So.2d 240
• Parties: ALABAMA STATE BAR et al. v. S. A. WATSON, Deputy District Attorney, Twenty-Third Judicial Circuit. SC 32.
• Court: Alabama Supreme Court

Page 240

272 So.2d 240

289 Ala. 729

ALABAMA STATE BAR et al. v. S. A. WATSON, Deputy District Attorney, Twenty-Third Judicial Circuit.

SC 32.

Supreme Court of Alabama.

Nov. 30, 1972.

Rehearing Denied Feb. 8, 1973.

William H. Morrow, Jr., Montgomery, for appellants.

Morring, Giles, Willisson, Higgs & Cartron, Huntsville, for appellee.

MADDOX, Justice.

The Alabama State Bar, and Bar officials, appeal from an order of the Circuit Court in Madison County which prohibits them from prosecuting further disciplinary proceedings against an attorney who was serving as a deputy district attorney of the Twenty-third Judicial Circuit.

The facts are not seriously disputed. S. A. Watson was a deputy district attorney. The district attorney's office was prosecuting the accused before the Hon. Richard H. Kempaner, Pro Tem. Judge of the Madison County Court, on a charge of indecent exposure. Watson did not represent the State at the hearing. The accused entered a plea of 'not guilty.' His defense was announced to be an alibi. The State offered one witness, who testified in support of the charge. The defendant's motion to exclude the evidence was granted. The defendant offered no evidence.

The ruling of Judge Kempaner was reported to District Attorney Fred Simpson who decided, after conferring with Watson (appellee), that a public statement should be issued to the news media. A statement ¹ drafted by Watson, and approved by the District Attorney, was released to the press and Watson appeared on local television and read or recited the statement.

The Grievance Committee of the Huntsville-Madison County Bar Association charged that Watson was guilty of violating or failing to comply with Rule 2, Section A, of the Rules Governing the Conduct of Attorneys in Alabama. ² Watson was also charged with violating or failing to comply with Rule 36, Section A, Rules Governing the Conduct of Attorneys in Alabama, said Rule providing:

'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.'

These charges were filed and the president of the Board ordered a Commissioner to take testimony on the charges, the hearing to take place on December 10, 1971. The petition for writ of prohibition was filed on December 9. The trial court issued an order to the respondents (appellants) to show cause why they should not be restrained from further prosecuting the charges against Watson.

After various pleadings were filed and the petition for writ of prohibition was amended to include a copy of the charges filed against Watson, the trial court issued its order prohibiting the Bar and its officials from prosecuting Watson. The court, in substance, found that Watson, as deputy district attorney, was invested with all the rights, privileges and responsibilities of the district attorney and that his acts were the acts of the district attorney. The trial judge further determined that the Bar could not discipline the district attorney, and, consequently, was without authority to discipline Watson.

Both parties argue the question of whether the Bar has the power to discipline a deputy district attorney, but we see no necessity to reach this question. As we view the matter, a jurisdictional problem is presented. It affirmatively appears from the record that the circuit court is attempting to supervise or control the action of the Board of Commissioners of the Alabama State Bar, which this Court has held acts under the judicial power of the State, as defined in § 139, Constitution, 1901. See Ex Parte Dozier, 262 Ala. 197, 77 So.2d 903 (1955). The Board of Commissioners is a board of state-wide jurisdiction, not limited to any county or district in its field of operation. As such, the Board of Commissioners is not an inferior jurisdiction to the Circuit Court of Madison County with a field of operation limited to that circuit. Cf. Ex Parte Alabama Textile Products Corp., 242 Ala. 609, 7 So.2d 303 (1942). In Alabama Textile Products Corp., this Court held that where a board or commission of state-wide jurisdiction has its principal place of business in Montgomery, the Circuit Court of Montgomery County is the only court which would have authority to issue a supervisory writ.

In Ex Parte Lewis, 236 Ala. 82, 181 So. 306 (1938) this Court refused to entertain an application for writ of mandamus filed against the president of the Board of Commissioners of the Alabama State Bar. The application was subsequently filed in the Circuit Court of Jefferson County, where the Board then had its principal place of business. ³ In Lewis v. Gerald, 236 Ala. 91, 181 So. 306 (1938), this Court said:

'This Court has held, on an application made by this petitioner, that the circuit court did have the power and authority to issue writs of mandamus in proper cases, and on proper showing, to the Commissioners of the State Bar, and to the members thereof, as well as to the members of the Grievance Committee, and that this Court would not entertain an original petition filed in this Court, seeking the issuance of such a writ. Ex parte Lewis, (236 Ala. 82,) 181 So. 306.'

We judicially know that the principal place of business of the Board of Commissioners of the Alabama State Bar is Montgomery. Under the law set out in Ex Parte Alabama Textile Products Corp., supra, the Circuit Court of Montgomery is the only court which would have jurisdiction to issue supervisory writs. ⁴

The appellants do not argue the jurisdictional question, even though they filed a motion to set aside the final decree on the ground that the trial court was without jurisdiction, and the denial of this motion was assigned as error on appeal.

Lack of jurisdiction of a cause, whether argued or not, cannot be waived or supplied by consent. City of Huntsville v. Miller, 271 Ala. 687, 127 So.2d 606 (1961).

The Board of Commissioners, under our state law, exercises judicial functions, and this Court is given broad powers to review the action of the Board of Commissioners, and may inquire into the merits of the case, and take Any action agreeable to our judgment. Ex Parte Thompson, 228 Ala. 113, 152 So 229 (1934). In 'proper' cases we have approved of a procedure to allow petitions for extraordinary writs to be filed in the circuit court of the county where the Board of Commissioners have their principal place of business. Lewis, Moore, and Aderholt, supra. But we have not held that any circuit court of the state can supervise the Board of Commissioners.

Since the Circuit Court of Madison County was without jurisdiction to supervise the Board of Commissioners of the Alabama State Bar, the judgment was coram non judice and therefore void. The appeal from such void judgment is due to be dismissed.

Appeal dismissed.

HARWOOD, BLOODWORTH, McCALL and SOMERVILLE, JJ., concur.

HEFLIN, C.J., and COLEMAN, J., dissent.

COLEMAN, Justice (dissenting).

The majority hold that the only circuit court having 'jurisdiction' to entertain the application for the writ of prohibition to the Alabama State Bar is the Circuit Court of Montgomery County, that this lack of jurisdiction in the Madison Court is a matter of which this court must take notice ex mero motu, and that having taken such notice this court must hold the judgment against appellant to be void although the lack of jurisdiction is not assigned or argued as error.

As I understand the cases cited by the majority, none of them holds that Montgomery County is the only county having jurisdiction to issue extraordinary writs against appellant. In Ex parte Lewis, 236 Ala. 82, 181 So. 306, this court merely refused to entertain a petition for mandamus and said 'Application should have been made to the circuit court.'

In Lewis v. Gerald, 236 Ala. 91, 181 So. 306, this court observed that this court has held that the circuit court has power and authority to issue mandamus to appellant and will not entertain an original petition for mandamus. This court then proceeded to review on the merits a judgment of the Circuit Court of Jefferson County denying a petition for mandamus against appellant.

The majority say:

'. . .. In Alabama Textile Products Corp., this Court held that where a board or commission of state-wide jurisdiction has its principal place of business in Montgomery, the Circuit Court of Montgomery County is the only court which would have authority to issue a supervisory writ.'

I must differ with the conclusion of the majority as there stated. In Alabama Textile Products Corp., the petitioners had presented an original petition for certiorari to the Supreme Court seeking review of a decision of the Board of Appeals, Division of Unemployment Compensation, Department of Industrial Relations. There was no question as to whether the circuit court of any county had jurisdiction to entertain such a petition. No application for certiorari had been made to the circuit court of any county. The question before this court was whether this court should issue the writ although no application had been made to any circuit court.

Textile Products cannot be authority for holding Montgomery County to be the only court with jurisdiction to issue the writ, because in that case this question was not presented in any circuit court or in this court.

In Aderholt, 283 Ala. 436, 218 So.2d 149, this court affirmed a judgment of the circuit court granting prohibition against appellant. In Moore, 282 Ala. 562, 213 So.2d 404, also, the judgment granting prohibition was affirmed.

On reading the opinion of the majority, it seems to me that the 'venue' of the suit for prohibition against appellant did not properly lie in Madison County. I am inclined to agree that on proper objection, the suit should not have been entertained in Madison County, but should have been transferred to Montgomery County Circuit Court. 1958 Recompiled Code of 1940; Pocket Parts, Title 7, §§ 64(1), 64(2).

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