Barnard v. Utah State Bar

• Decision Date: 09 January 1991
• Docket Number: No. 880201,880201
• Citation: Barnard v. Utah State Bar, 804 P.2d 526 (Utah 1991)
• Parties: Brian M. BARNARD, Plaintiff, Appellee, and Cross-Appellant, v. UTAH STATE BAR and Stephen Hutchinson, Defendants, Appellants, and Cross-Appellees.
• Court: Utah Supreme Court

Page 526

804 P.2d 526

Brian M. BARNARD, Plaintiff, Appellee, and Cross-Appellant, v. UTAH STATE BAR and Stephen Hutchinson, Defendants Appellants, and Cross-Appellees.

No. 880201.

Supreme Court of Utah.

Jan. 9, 1991.

Rehearing Denied March 20, 1991.

Brian M. Barnard, C. Dane Nolan, Salt Lake City, for plaintiff-appellee, and cross-appellant.

Carman E. Kipp, Robert H. Rees, Richard D. Burbidge, Stephen B. Mitchell, Salt Lake City, for defendants, appellants, and cross-appellees.

STEWART, Justice:

The Utah State Bar and its executive director appeal a summary judgment directing them to disclose to Brian M. Barnard, a member of the Bar, salary and benefit information with respect to Bar employees. Barnard cross-appeals the denial of exemplary damages and attorney fees.

By a letter dated November 6, 1987, to Stephen F. Hutchinson, who was then executive director of the Utah State Bar, Brian M. Barnard requested information concerning the wages, salaries, and benefits the Bar paid to its employees. Hutchinson responded by providing Barnard with the salary ranges for different categories of Bar employees and a description of the fringe benefits of the Bar staff. Barnard was not satisfied with that information and he wrote another letter to Hutchinson requesting more specific salary and benefit information concerning the key employees of the Bar. Hutchinson responded with a refusal to disclose further salary and benefit information.

Barnard then filed this suit against the Bar and Hutchinson for a decree directing the Bar to supply him with detailed salary and benefit information for all Bar employees. Barnard asserted that the Bar is a state agency and is required to disclose this information under the Archives and Records Services and Information Practices Act, Utah Code Ann. §§ 63-2-59 to -89 (1989) ("Records Act"), and the Public and Private Writings Act, Utah Code Ann. §§ 78-26-1 to -8 (1987) ("Writings Act"). He also sought exemplary damages and attorney fees. On Barnard's motion for summary judgment, the trial court ruled that the Bar had to disclose the salary and benefit information, but denied his request for exemplary damages and attorney fees. The judgment has been stayed pending appeal.

The Bar and Hutchinson appeal the summary judgment and present two issues: (1) whether the Bar is a state agency and is therefore required to disclose the salary and benefit information of its employees under the Records Act and the Writings Act; and (2) if the Bar is a state agency, whether the Records Act and the Writings Act can constitutionally be applied to the Bar. Barnard contends on a cross-appeal that the trial court erred in denying his claim for exemplary damages and attorney fees.

At the outset, we make clear precisely what issue is before the Court. The issue is whether the Utah State Bar is a "state agency" within the scope of the meaning of that term as used in the Records Act and the Writings Act. We do not decide whether the Utah State Bar is a state agency for any other purpose, such as the federal Civil Rights Act, 42 U.S.C. § 1983 (1981), nor do we decide whether the plaintiff would be entitled to the information if he had invoked some other legal theory. Nor do we decide whether Barnard might have successfully petitioned this Court for the promulgation of a rule, pursuant to our rule-making authority, to require the Bar to disclose such information. On this appeal, therefore, we review only the narrow question of whether the Records Act and the Writings Act apply to the Utah State Bar Association.

The Writings Act provides for public access to public records and writings. It provides a right to inspect and copy any public writing of the state, unless a statute provides otherwise. Utah Code Ann. § 78-26-2 (1987). That Act does not, however, define the term "public writings." In prior cases, we have used the definition of "public records" in the Records Act to define the term "public writing" in the Writings Act. ¹ KUTV, Inc. v. Utah State Bd. of Educ., 689 P.2d 1357, 1360 (Utah 1984); Redding v. Brady, 606 P.2d 1193, 1195 (Utah 1980). The term "public records" is defined by Utah Code Ann. § 63-2-61(1) (1989) in the Records Act as

all books, papers, letters, documents, maps, plans, photographs, sound recordings, management information systems, or other documentary materials, regardless of physical form or characteristics, made or received, and retained by any state public office under state law or in connection with the transaction of public business by the public offices, agencies, and institutions of the state and its counties, municipalities, and other political subdivisions.

(Emphasis added.) Under this provision, disclosure is required of documentary materials made or returned under state law or "in connection with the transaction of public business." The Records Act defines "public offices" as "the offices ... of any court, department, division, board, commission, bureau, council, authority, institution, or other agency of the state or any of its political subdivisions." Utah Code Ann. § 63-2-61(3) (1989). The Records Act defines "state agency" as a "department, division, board, bureau, commission, council, institution, authority, or other unit, however designated, of the state." Utah Code Ann. § 63-2-61(2) (1989).

The Bar argues that it is neither a "public office" nor "a state agency," but rather a private organization which performs certain public service functions and is regulated and supervised by the Supreme Court.

Before 1931, the Bar existed as a private organization of attorneys, and the Legislature provided for the admission to practice and the discipline and disbarment of attorneys in Utah. See Compiled Laws of Utah §§ 3100-3124 (1888); Compiled Laws of Utah §§ 317, 318, 331 (1917). The Legislature also granted authority to the Supreme Court of Utah to establish rules for the admission to practice and the discipline and disbarment of attorneys. See Compiled Laws of Utah §§ 319, 331 (1917). Before 1931, Bar membership was voluntary and admission and discipline were regulated directly by the Legislature and the courts, not by the Bar.

In 1931, the Legislature gave official recognition to the Utah State Bar. See 1931 Utah Laws ch. 48. The 1931 Act required every person practicing law in the State to pay a license fee to be placed in a fund for use by the Utah State Bar. Id. at § 12. Every person admitted to practice law had to be a member of the Utah State Bar. Id. at § 4. The Bar was given power to recommend the admission of applicants and the discipline of lawyers to the Supreme Court for binding action. Id. at § 10. The act provided that the rules and regulations of the Bar had to be approved by this Court to become final. Id. at § 16.

Notwithstanding the 1931 Act and subsequent amendments, this Court regulated the practice of law through its inherent judicial power, in addition to the statutory authority conferred on it, until 1985. See In re McCune, 717 P.2d 701, 704 (Utah 1986); In re Utah State Bar Petition, 647 P.2d 991, 992 (Utah 1982); Ruckenbrod v. Mullins, 102 Utah 548, 559-60, 133 P.2d 325, 330 (1943). See also Washington State Bar Ass'n v. Graham, 86 Wash.2d 624, 548 P.2d 310 (1976). Although the Legislature asserted some authority with respect to the practice of law prior to the 1931 Act, the authority of this Court to regulate the admission and discipline of attorneys existed as an inherent power of the judiciary from the beginning. See In re McCune, 717 P.2d at 704-05. The Legislature formally recognized and codified part of this Court's inherent judicial power by expressly providing in the 1931 Act that nothing in that act limited or altered "the powers of the courts to disbar or discipline members of the bar." Rev.Stat. of Utah § 6-0-18 (1933); Utah Code Ann. § 6-0-18 (1943); Utah Code Ann. § 78-51-19 (1987).

In 1981, the Court adopted rules for integration of the Bar under the Court's own independent, inherent power derived from the historic and fundamental relationship between attorneys at law and the courts and the doctrine of separation of powers. See In re Integration and Governance of the Utah State Bar, 632 P.2d 845 (1981); See also In re McCune, 717 P.2d at 705. At that time, the Court adopted the Rules of Organization and Management of the Utah State Bar, which incorporated much of the text of Title 78, chapter 51, the statutes governing the Bar. See In re McCune, 717 P.2d at 705. The present Rules for Integration and Management of the Utah State Bar state that the Supreme Court of Utah, "acting with the powers vested in it by the Constitution of this State and its inherent power over members of the legal profession as officers of the Court ... does hereby perpetuate, create and continue under the direction and control of this Court an organization known as the Utah State Bar." Rules for Integration and Management of the Utah State Bar, Rule (A)1. The Rules for Integration and Management also provide, inter alia, "All persons now or hereafter licensed in this State to engage in the practice of law shall be members of the Utah State Bar...." Id.

Following the Bar's integration, Article VIII of the Utah Constitution was amended, effective July 1, 1985. See In re McCune, 717 P.2d at 704-05. The amended version of Article VIII expanded the power of the Court and made explicit its power to regulate the "practice of law." Article VIII, § 4 states, "The supreme court by rule shall govern the practice of law, including admission to practice law and the conduct and discipline of persons admitted to practice law."

In light of this general background, we now address the question of whether the Records Act and the Writings Act apply to the Bar. That question is, in the first instance, solely a question of statutory construction. The issue, in terms of the statutory language, is whether the Bar is a "public office" or "state agency" within the...