Board of Com'rs of Alabama State Bar v. State ex rel. Baxley

• Decision Date: 04 December 1975
• Citation: 324 So.2d 256,295 Ala. 100
• Parties: BOARD OF COM'RS OF the ALABAMA STATE BAR v. STATE ex rel. William J. BAXLEY, Attorney General, et al. SC 1207.
• Court: Alabama Supreme Court

Page 256

324 So.2d 256

295 Ala. 100

BOARD OF COM'RS OF the ALABAMA STATE BAR v. STATE ex rel. William J. BAXLEY, Attorney General, et al.

SC 1207.

Supreme Court of Alabama.

Dec. 4, 1975.

Rehearing Denied Jan. 9, 1976.

M. R. Nachman, Jr., William H. Morrow, Jr., Montgomery, for appellant.

William J. Baxley, Atty. Gen. and Winston T. Lett, and Jerry L. Weidler, Asst. Attys. Gen., for the State, appellee.

SHORES, Justice.

The attorney general filed a bill for declaratory judgment against the Board of Commissioners of the Alabama State Bar (hereinafter Board) for a determination that Act No. 750, Acts of Alabama 1973, Regular Session, page 1123, approved August 30, 1973, is constitutional; that the Board be required to comply with the act; and that Rule IV(D) of the Rules Governing Admission to the Bar of Alabama is unconstitutional. Act No. 750 provides in part:

'Section 1. Any rule, regulation or law limiting the number of times that any person, otherwise qualified may apply for and stand the Alabama Bar Examination at any regular examination session is hereby prohibited. However, no applicant may take the examination more than three (3) times in any three (3) year period.'

Since 1934, the Board of Commissioners of the Alabama State Bar has followed the practice of limiting to three the number of times one may sit for the bar examination. Rule IV(D), as it now exists, was passed by the Commissioners on July 22, 1961, and provides:

'No applicant shall be permitted to take the examination, under these rules, more than three times unless subsequent applications by such applicant are approved by the Board of Commissioners of the Alabama State Bar.'

The complaint was dismissed for lack of an actual controversy of justiciable character and because of a lack of jurisdiction over the subject matter. Subsequently, two persons were allowed to intervene who had failed the bar examination three times and were not allowed to take it for a fourth time under the provisions of Act No. 750.

The trial court observed the long history of legislative enactments governing admission to the bar and the lack of any standards adopted by the courts of Alabama and concluded that Act No. 750 was constitutional. From this judgment the Board appealed.

It is the contention of the Attorney General and intervenors that the legislature may exercise regulation over bar examinations if such regulation does not impair the judicial branch's exercise of its inherent functions; that the legislature has done so for over fifty years; that the judiciary has acquiesced in such regulation; and that the Board is a legislatively created authority and not an arm of the Supreme Court.

The Board submits that Act No. 750 violates Sections 42 and 43 of the Alabama Constitution as an attempted exercise by the legislature of judicial functions and as an invasion of the inherent powers of the judiciary; that the legislature may establish only minimum standards for the practice of law; that the Board is an arm of the Supreme Court and its standards for admission are court-made rules. It also argues that Act No. 750 is unconstitutionally vague, uncertain, arbitrary, and capricious.

The single issue presented by this appeal is whether establishing rules governing admission to the bar is a judicial function and, if so, is the legislature, by Act No. 750, exercising a judicial function in violation of the admonitions and prohibitions contained in Sections 42 and 43 of the Constitution of 1901.

These sections of the Constitution provide in part:

'Section 42. The powers of the government of the State of Alabama shall be divided into three distinct departments . . . legislative . . . executive . . . judicial . . .'

'Section 43. In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them . . .'

The Board of Commissioners of the Alabama State Bar was created by Act No. 133, General Acts of Alabama 1923, page 100, approved August 9, 1923 (Code of Alabama 1940, Title 46, § 21). This act was found by this court to be constitutional in Ex parte Thompson, 228 Ala. 113, 152 So. 229 (1933). In that case, this court looked to Section 139 of the Alabama Constitution, ¹ which provided:

'The judicial power of the state shall be vested in the senate sitting as a court of impeachment, a supreme court, circuit courts, chancery courts, courts of probate, such courts of law and equity inferior to the supreme court, and to consist of not more than five members, as the legislature from time to time may establish, And such persons as may be by law invested with powers of a judicial nature . . .' (Emphasis added)

The court recognized that the powers conferred on the Board were judicial in character, but concluded that under Section 139 of the Constitution there was express authority for creating the Board and conferring on it judicial functions. However, the court noted that '. . . the rules and regulations which may be formulated and adopted by the board shall not become effective until the same Shall have received the approval of this court, and The right of this court to approve or disapprove all or any part of the rules so formulated and adopted by the board Is fully reserved to this court. . . .' (Emphasis Added) Ex parte Thompson, supra, at 124--25, 152 So. at 238. And in this same opinion, at page 126, 52 So. at page 240, referring to this court's power and responsibility to admit and disbar attorneys, the court said ". . . This inherent power of the court cannot be defeated by the legislative or executive department. . . ."

It is true that this court has recognized legislative power to prescribe minimum requirements for admission to the bar so long as they do not interfere with the inherent power of the court to determine who shall practice before it. Ex parte Dozier, 262 Ala. 197, 77 So.2d 903 (1955). But the fact that this court has not been as active in formulating rules governing Admission to the bar (as it has in adopting rules governing the practice of law) but rather has left this function largely to the Board of Bar Commissioners, acting on its behalf, does not mean that it has abrogated its authority and responsibility to the legislature, if in fact such power is inherent to the judiciary. In fact, it cannot relinquish its authority to another branch of government under the express provisions of the constitution of this state.

The Supreme Court of Georgia, responding to a charge similar to the one made here, that judicial acquiescence in legislative activity in this area has diluted the court's inherent power, said that judicial recognition of such legislative acts did '. . . not mean that this court intended to, or even could, relinquish this judicial responsibility to the legislature.' Wallace v. Wallace, 225 Ga. 102, 111--12, 166 S.E.2d 718, 724 (1969).

This brings us to the question of whether regulation of admission to the bar is an 'inherent' power of the judiciary. It has been said that 'What constitutes judicial power, within the meaning of the constitution, is to be determined in the light of the common law and of the history of our institutions as they existed anterior to and at the time of the adoption of the constitution.' State v. Hormon, 31 Ohio St. 250, 258 (1877).

A brief examination of the common-law history of regulating admissions to the bar and the practice of law reveals a division of responsibilities in the English legal profession. In the early days of the profession there was the 'attorney,' who served as a substitute for the litigant and the 'advocate' or 'barrister' who supported one's '. . . cause by his learning, ingenuity and zeal.' 2 W. Holdswroth, A History of English Law 311 (4th ed. 1936). In 1292, Edward I decreed that admissions to the profession should be regulated and delegated to his justices the task of appointing as attorneys those with sufficient learning and skill. Rolls of Parliament, i. 84, cited in Vol. I, F. Pollock & F. W. Maitland, The History of English Law 216, n. 2 (2d ed. 1898).

By 1403, the increasing number of attorneys forced Henry IV to order his justices to examine all attorneys and put on the roll only those with good character and sufficient learning. 4 Henry IV, c. 18. See also Lee, The Constitutional Power of the Courts Over Admission to the Bar, 13 Harv.L.Rev. 233 (1899). The courts also issued orders regulating the conduct of the profession as evidenced by orders issued in 1452. Praxis Utriusque Banci 26, cited in 2 W. Holdsworth, A History of English Law 505, n. 3 (4th ed. 1936). While Parliament legislated in this regard with respect to the numbers to be allowed admission as attorneys, Parliament did not attempt to determine the amount of learning or qualifications to be required of an attorney.

The barristers were also subject to court control, though some argue only indirectly. See Comment, Admission to the Bar and the Separation of Powers, 7 Utah L.Rev. 82 (1960--61). The barristers came from educational societies called the Inns of Court. The barrister's call to the bar came from the Inns of Court; however, if the Inns refused to call a person to the bar, the remedy was an appeal to the judges. Lee, The Constitutional Powers of the Courts Over Admission to the Bar, supra, at 240.

Additionally, the judges regulated the number of students admissible to the Inns--and thus the number admissible to the bar--the course of study, and even morals and mode of dress. See Note, Legislative or Judicial Control of Attorneys, 8 Fordham L.Rev. 103, 104 (1939): Indeed, there is speculation that the Inns were developed through the efforts of judges and serjeants to improve the profession. Holdsworth, supra, at 496.

It has been observed 'The English courts from time to time, by virtue of their own rules, without any legislation,...