Board of Overseers of The Bar v. Lee
| Decision Date | 17 November 1980 |
| Citation | 422 A.2d 998 |
| Court | Maine Supreme Court |
| Parties | BOARD OF OVERSEERS OF the BAR v. Freddie F. LEE. 1 |
Freddie F. Lee (orally), East Baldwin, for plaintiff.
Michael E. Barr (orally), Augusta, for Board of Overseers of the Bar.
Before McKUSICK, C. J., WERNICK, GODFREY, NICHOLS, GLASSMAN, and CARTER, JJ., and DUFRESNE, A. R. J.
In a case novel in this jurisdiction as a challenge to the power vested by our Constitution 2 in the Supreme Judicial Court as one of the three co-equal branches of government, an attorney, Freddie F. Lee, disputes the right of the Supreme Judicial Court by promulgation of the Maine Bar Rules to require every attorney in active practice in our state to pay an annual registration fee to the Board of Overseers of the Bar created thereunder. 3
The facts of the case are uncontroverted. In 1979 Lee filed a registration statement with the Board, "under protest" as he said, but refused to pay the registration fee of $100 required in 1979 of all active attorneys not under suspension. By letter Lee asserted that he should not be compelled "to join an association" in order to maintain his right to work as a lawyer and that the cost of lawyer discipline should be borne by those lawyers who are disciplined.
Upon his failure to pay this fee to the Board of June 1, 1979, Lee's name appeared on a list of attorneys which the Board had summarily suspended for failure to register and pay the registration fee, which list the Executive Secretary of the Board of Overseers of the Bar sent to the various clerks' offices throughout the Maine court system. In August, 1979, the Board was alerted to the fact that Lee had continued to represent clients in court in matters in which he had previously been of counsel, notwithstanding his suspension. 4
Upon recommendation of its Grievance Commission after hearing, the Board caused to be filed in the Supreme Judicial Court an information seeking the indefinite suspension of Lee from the practice of law. Maine Bar Rule 7(e) (6). At a hearing before a single justice of the Supreme Judicial Court, designated pursuant to Maine Bar Rule 7(e)(6) to hear this information, Lee admitted the factual allegations, and the parties submitted the issues of law to the single justice.
On May 29, 1980, the single justice issued an order, suspending Attorney Lee for non-payment of the registration fee until such time as he shall have paid all arrears required of him, plus the reinstatement assessment required of him pursuant to Maine Bar Rule 10(c). In that order the single justice ruled, however, that the Board of Overseers of the Bar lacked authority to itself summarily suspend an attorney although Maine Bar Rule 10(b) purports to confer that power upon the Board.
In appealing to this Court from that order suspending him from the practice of law, Attorney Lee attacks the pertinent bar rule on constitutional grounds. The Board has brought a cross-appeal, asserting that the Board's ordering of Lee's suspension from practice for non-payment of the registration fee was a ministerial act appropriately delegated to it by the Supreme Judicial Court.
On both the appeal and the cross-appeal we affirm the order of the single justice.
The circumstances that before the Supreme Judicial Court, sitting as the Law Court, the Defendant here challenges the constitutionality of a rule promulgated by the Supreme Judicial Court is unusual, but not without precedent. In State v. Kelly, Me., 376 A.2d 840, 844 (1977), the Law Court entertained and upheld an attack on the validity of a rule which the Supreme Judicial Court had promulgated. The situation is not dissimilar from a litigant's challenge to an advisory opinion rendered by the justices pursuant to the provisions of our state constitution. 5 It has long been recognized that such an opinion (which is the opinion of individual justices) is without precedential value; the Law Court is not bound by the advisory opinion when the same question may later be raised in a litigated case. Martin v. Maine Savings Bank, 154 Me. 259, 269, 147 A.2d 131, 137 (1958).
The propriety of a challenge here to the validity of a rule in the promulgation of which certain present members of the Supreme Judicial Court, as rule-makers, may have joined, is in accord with the re-examination of federal rules which in appellate review of litigated matters is permitted in the United States Supreme Court. Hanna v. Plumer, 380 U.S. 460, 464, 85 S.Ct. 1136, 1140, 14 L.Ed.2d 8 (1965). See also 4 C. Wright & A. Miller, Federal Practice and Procedure § 1030 (1969).
An analysis of the problem presented by this appeal must begin with recognition that at the foundation of our form of government there are three co-equal branches; and that our form of government, at the state as well as the federal level, embraces the doctrine of the separation of powers. In the Maine Constitution, Article III proclaims:
Section 1. The powers of the government shall be divided into three distinct departments, the legislative, executive and judicial.
Section 2. No person or persons, belonging to one of these departments, shall exercise any of the powers properly belonging to either of the others, except in the cases herein expressly directed or permitted.
Each of the three great "departments" 6 being independent and co-equal, 7 it follows that they are "severally supreme within their legitimate and appropriate sphere of action." Ex parte Davis, 41 Me. 38, 53 (1856).
From this concept of separation of powers there is derived the inherent power of the Supreme Judicial Court. It is a fundamental principle of constitutional law that each department in our tri-partite scheme has, without any express grant, the inherent right to accomplish all objects necessarily within the orbit of that department when not expressly allocated to, or limited by the existence of a similar power in, one of the other departments. The inherent power of the Supreme Judicial Court, therefore, arises from the very fact that it is a court and connotes that which is essential to its existence and functioning as a court. 8 Petition of Florida State Bar Ass'n, Fla., 40 So.2d 902, 905-06 (1949); In re Integration of Nebraska State Bar Ass'n, 133 Neb. 283, 275 N.W. 265, 114 A.L.R. 151 (1937). 9
Attorneys are officers of the court and as such constitute an important part of the judicial system. The power to define and regulate the practice of law naturally and logically belongs to the judicial department. The admission and disbarment of attorneys is the ultimate exercise of that power and is a judicial act. In re Secombe, 60 U.S. (19 Howard) 9, 13, 15 L.Ed. 565 (1856); Laughlin v. Clephane, 77 F.Supp. 103, 105 (D.D.C.1947).
The Supreme Judicial Court has inherent power, not only to regulate the conduct of attorneys as officers of the court, but also to impose upon them as a precondition to receipt of a license to practice such registration fees as are reasonably required to enable the Court to carry out its responsibilities.
The fact that the ultimate power to regulate the conduct of attorneys is inherently in the judicial department 10 does not mean that other departments of government cannot also in some respects act in such an area as this. We note, for example, that the Legislature has conferred upon the attorney general authority to prosecute in the Supreme Judicial Court an attorney charged with conducting himself in a manner unworthy of an attorney. 4 M.R.S.A. §§ 851-856. This authority remains an alternative to the adjudication of attorney disciplinary matters pursuant to the Maine Bar Rules.
In addition, the Legislature has enacted certain statutes relating to the admission and reinstatement of attorneys, which statutes the Supreme Judicial Court honors as a matter of comity, but not in surrender of its inherent power. 11 Application of Feingold, Me., 296 A.2d 492, 496 (1972). See also Barnes v. Walsh, 145 Me. 107, 110-11, 72 A.2d 813, 815 (1950).
The police power is generally considered to be vested in the legislative department, but it is not the exclusive power of that department. The police power may on occasion be exercised by the courts. Petition of Florida Bar Ass'n, supra, at 906. The promulgation of Maine Bar Rule 10 is such an occasion.
Attorney Lee has challenged our bar rules as violating his constitutional rights to due process and to equal protection of the laws. Me. Const., Art. I, § 6-A; U.S.Const., Amend. XIV. Under our bar rules the offending attorney is accorded both notice and an opportunity to be heard. These are of the essence of due process. Peaslee v. Pedco, Inc., Me., 388 A.2d 103 (1978). See also Bennett v. Oregon State Bar, 256 Or. 37, 470 P.2d 945, 53 A.L.R.3d 1291 (1970).
In Buschbacher v. Supreme Court of Ohio, No. C-2-75-743, 75-751, 76-309 (S.D.Ohio 1976), aff'd sub nom. Cuyahoga County Bar Ass'n, et al. v. Supreme Court of Ohio, 430 U.S. 901, 97 S.Ct. 1167, 51 L.Ed.2d 577 (1977), the United States Supreme Court upheld the constitutionality of a rule of the Ohio court which required practicing attorneys to register and pay a biennial fee in the face of charges of violation of procedural due process, substantive due process and equal protection of the laws.
In Tennessee a court rule providing for annual registration of attorneys and payment by them of an annual license fee has withstood a challenge on grounds of denial of the constitutional guarantees of due process and equal protection. Ables v. Fones, 587 F.2d 850 (6th Cir. 1978).
Attorney Lee has presented no evidence whatsoever that the classification of attorneys made in Maine Bar Rule 10 for fixing the amount of the annual registration fee is an arbitrary one. His challenge on that ground, therefore, requires no further attention by this Court.
In his challenge to Maine Bar Rule 10 Attorney Lee goes further than the constitutional issues discussed above...
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