Attorney General of Maryland v. Waldron

• Decision Date: 13 March 1981
• Docket Number: No. 45,45
• Citation: Attorney General of Maryland v. Waldron, 426 A.2d 929, 289 Md. 683 (Md. 1981)
• Parties: , 17 A.L.R.4th 794 ATTORNEY GENERAL OF MARYLAND et al. v. Richard V. WALDRON.
• Court: Maryland Court of Appeals

Page 683

289 Md. 683

426 A.2d 929, 17 A.L.R.4th 794

ATTORNEY GENERAL OF MARYLAND et al. v. Richard V. WALDRON.

No. 45.

Court of Appeals of Maryland.

March 13, 1981.

Alfred L. Scanlan, Jr., Asst. Atty. Gen., Baltimore (George A. Nilson, Deputy Atty. Gen., Baltimore, on the brief), for appellants.

Richard V. Waldron, pro se.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

DIGGES, Judge.

With this case, we shall answer questions once before raised in but not reached by this Court. Specifically, we determine: (i) whether section 56(c) of Article 73B, ¹ which prohibits the practice of law for compensation by certain members of the Maryland Bar who have previously held a judicial office, violates the principle of separation of powers embodied in Article 8 of the Maryland Declaration of Rights; and (ii) whether this same enactment breaches the fundamental principles of equal protection embodied in our State and federal organic laws. As this action raises by implication fundamental issues concerning the proper repository for, and particular limitations on, a large part of the constitutional authority to regulate the legal profession, we shall here provide a full exposition of our thoughts on the matters after initially supplying the necessary factual backdrop to the case. ²

I Factual Background

Because the questions here stated present purely legal issues, the facts involved are important only insofar as necessary for a full percipience of the parties' respective positions. As we have previously explained, see Chairman of Board v. Waldron, 285 Md. 175, 401 A.2d 172 (1979) (Waldron I ), the respondent in this case was a judge of the District Court of Maryland sitting in Prince George's County (and its predecessor, the People's Court), who, having not received reappointment following ten years of service on the bench, retired in August of 1977. Desiring to return to the practice of law in this State as well as in the District of Columbia, while perceiving a statutory obstacle to his receipt of pension benefits under Md.Code, Art. 73B, § 57 if he did so, Waldron initiated a frontal assault on the apparent legislative impediment. Thus, the former judge sought in Waldron I, from the Circuit Court for Calvert County, a declaration that section 56(c) of Article 73B, his perceived antagonist, unconstitutionally infringed his rights to due process and equal protection of the law under both the State and federal constitutions and that the provision invaded the province of the judicial branch in violation of this State's basic constitutional principle of separation of powers. Judge Waldron succeeded in the trial court on the equal protection claim. This Court, however, there construed section 56(c) as creating a prohibition whose violation would constitute the unauthorized practice of law, and not one establishing preconditions to the receipt of pension benefits as we noted that section 56(c)'s predecessor did. Chairman of Board v. Waldron, supra, 285 Md. at 180, 401 A.2d at 175. Thus, since none of those designated to police the unauthorized practice of law were named in the prior suit, see Md.Code (1957, 1981 Repl.Vol.), Art. 10, § 26A, we were compelled to vacate the trial court's determination for failure to join parties necessary to adjudicate the questions raised, and consequently did not address the constitutional issues there posed for our review. Id. at 180, 401 A.2d at 175.

These issues, however, have again found their way before this Court. When Judge Waldron began the practice of law for compensation after our decision in Waldron I, the Attorney General, acting pursuant to the enforcement authority with regard to unauthorized practice vested in him by section 26A of Article 10, docketed an equity suit in the Circuit Court for Prince George's County seeking, first, to enjoin the respondent from the practice of law while receiving his pension and second, a declaration that section 56(c) is constitutional in all respects. ³ The trial court (Bowen, J.) did not grant this relief. Instead, it declared the contested statutory provision to be contrary to both the principle of separation of powers found in Article 8 of the Maryland Declaration of Rights and the guaranties of equal protection of the law under both the federal and State constitutions. Prior to consideration of the matter by the intermediate appellate court, we issued our writ of certiorari to enable us to pass upon the important issues raised by this enduring litigation.

II Separation of Powers

The initial contention of the Attorney General before this Court is that the Circuit Court for Prince George's County erred when it concluded section 56(c) of Article 73B of the Maryland Code unconstitutionally "invades the exclusive power of the judiciary to determine who may practice law and, therefore, violates the separation of powers principle." The contested section 56(c) provides:

A judge who retires and accepts the pension provided by this subtitle may not, thereafter, engage in the practice of law for compensation; but this prohibition does not apply to a former judge who has attained the age of 70 years and received less than $3500 per annum in pension as provided by this subtitle, and who has not voluntarily retired. (Md.Code (1957, 1978 Repl.Vol.), Art. 73B, § 56(c).)

The trial judge correctly characterized this provision as one that, "by depriving a person who has been admitted to practice of his right to do so unless he meets further conditions," regulates the practice of law. This observation is consistent with our construction in Chairman of Board v. Waldron, 285 Md. 175, 180, 401 A.2d 172, 175 (1979), that section 56(c) "is a direct command to a retired judge who accepts a pension that he 'may not, thereafter, engage in the practice of law for compensation.' " Thus, it is clear that the enactment now before us manifests an undertaking on the part of the General Assembly to regulate the legal profession by prescribing for certain otherwise qualified practitioners additional prerequisites to the continued pursuit of their chosen vocation. We turn, therefore, to consider whether such regulation by the legislative branch of our government is permissible under the constitution of this State. ⁴

The concept that the rights and liberties cherished by the people of Maryland are best safeguarded by the division of governmental powers into independent and coequal organs is familiar to even a casual student of our constitutional heritage. Although this doctrine is both fundamental to our scheme of government and well known, we believe it important to recall that the "purpose (of separating the exercise of the sovereign powers) was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy." Myers v. United States, 272 U.S. 52, 293, 47 S.Ct. 21, 84, 71 L.Ed. 160 (1926) (Brandeis, J., dissenting). The doctrine of separation of powers was thought by the founding fathers of this State to be of such monumental importance for the continued safekeeping of our freedoms that they specifically incorporated this tenet into the proposed initial Declaration of Rights, thereafter adopted as part of the Maryland Constitution of 1776. See Maryland Declaration of Rights of 1776, Art. 6. Since that time the expression of this concept has always had a place in our organic law, although its written locution has varied in our later constitutions, so that Article 8 of the present document reads: "That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other." ⁵ This provision has been consistently interpreted from its inception

to parcel out and separate the powers of government, and to confide particular classes of them to particular branches of the supreme authority. That is to say, such of them as are judicial in their character to the judiciary; such as are legislative to the legislative, and such as are executive in their nature to the executive. Within the particular limits assigned to each, they are supreme and uncontrollable. (Wright v. Wright, 2 Md. 429, 452 (1852).)

More recently, this Court has iterated that while "the separation of powers concept may constitutionally encompass a sensible degree of elasticity ... (Article 8) cannot be stretched to a point where, in effect, there no longer exists a separation of governmental power." Dept. of Nat. Res. v. Linchester, 274 Md. 211, 220, 334 A.2d 514, 521 (1975). Though the precise delineation of authority between the three basic organs of our tripartite government is at times difficult to discern, when an issue arises, we must nevertheless determine such demarcations, for, as we went on to say in Linchester When the Legislature confers, by enactment, powers upon one of the other branches of government which are beyond those permitted under the Constitution, or any of the three branches of government takes unto itself powers denied to it or those strictly within the sovereignty of another branch, the courts of this State must step in and declare such encroachments to be constitutionally prohibited, not because the court is a "Triton among minnows" or predominates in dignity, but because, as Chief Justice Marshall, in Marbury v. Madison, 1 Cranch. 137, 2 L. Ed. 60 (1803) ... avowed: "It is emphatically the province and duty of the judicial department to say what the law is." (Dept. of Nat. Res. v. Linchester, supra (274 Md.) at 220-21, 334 A.2d at 521 (1975). See also Perkins v. Eskridge, 278 Md. 619, 624-27, 366 A.2d 21, 26-27 (1976); Whittington v. Polk, 1 H & J 236, 242-46 (1802) (case predating Marbury espousing identical view in relation to this State's judiciary)....