Calhoun v. Supreme Court of Ohio

• Decision Date: 26 October 1978
• Citation: 399 N.E.2d 559,61 Ohio App.2d 1,15 O.O.3d 13
• Parties: , 15 O.O.3d 13 CALHOUN et al., Appellants, v. SUPREME COURT OF OHIO et al., Appellees. 1
• Court: Ohio Court of Appeals

Page 1

61 Ohio App.2d 1

399 N.E.2d 559, 15 O.O.3d 13

CALHOUN et al., Appellants, v. SUPREME COURT OF OHIO et al., Appellees. ¹

Court of Appeals of Ohio, Tenth District, Franklin County.

Oct. 26, 1978.

Syllabus by the Court

1. The control of a court over matters relating to the practice of law includes the power to impose a fee upon attorneys within the state for the purpose of supporting investigations of claims of unethical or unauthorized practice.

2. R.C. 131.01 and 131.07 do not apply to attorney registration fees assessed by the Supreme Court of Ohio.

3. In a declaratory judgment action, a court is not precluded from rendering a judgment on the pleadings where no material factual issue exists and one party is entitled to a judgment in his favor as a matter of law.

Crede Calhoun, Pros. Atty., Cleveland.

Edwin F. Woodle, East Cleveland, for appellant, Cuyahoga County Bar Association.

William J. Brown, Atty. Gen., and

Thomas V. Martin, Asst. Atty. Gen., for appellees, the Supreme Court of Ohio et al.

HOLMES, Presiding Judge.

This matter comes before the court on an appeal from a judgment on the pleadings rendered by the Franklin County Court of Common Pleas for defendants the Supreme Court of Ohio and the justices of that court, and for Mr. Thomas Startzman, the clerk of such court. Plaintiffs below, appellants in this court, sought a declaratory judgment on numerous issues relating to the constitutional and statutory power of the defendants to promulgate rules to levy attorney registration fees and to maintain a fund for regulating the practice of law in the state.

The facts in brief giving rise to this action, and to this appeal, are that the Supreme Court of Ohio adopted Rule VII of the Rules for The Government of The Bar (Gov.R. VII), effective October 20, 1975. This rule provides for the registration of all attorneys in the state and for the biennial payment of a registration fee of fifty dollars.

At the time of adopting Gov.R. VII, the Supreme Court also amended Gov.R. V(3) This amendment provides for the creation of the office of disciplinary counsel. The disciplinary counsel aids local bar associations in investigations of alleged misconduct, and also has the responsibility to take over investigations of misconduct which have not been completed within a specified time.

Funds for the compensation of staff and for the operations of the office of disciplinary counsel are provided from the registration fees collected pursuant to Gov.R. VII.

The Supreme Court also adopted Gov.R. VIII, which rule created the Board of Commissioners on the Unauthorized Practice of Law. The rule provides for procedures for processing complaints alleging the unauthorized practice of law. The rule also provides that the expenses incurred by local bar associations in handling the complaints shall be paid from the registration fees collected pursuant to Gov.R. VII.

Plaintiff-appellant Cuyahoga County Bar Association instituted an action in the United States District Court against the defendants in this action, claiming that the rules concerned with herein were unconstitutional. Plaintiff Crede Calhoun, a practicing attorney, was made a party to such action. A three-judge court found that the constitutional objections to the rules were without merit, and that the rules were in compliance with provisions of the United States Constitution. The District Court noted that the plaintiffs had alleged that the adoption of the rules was contrary to state law, and found that such was "a pendent claim" which that court had discretion to refuse to consider. Accordingly, the court declined to exercise pendent jurisdiction, and dismissed the action on the basis that the complaint failed to state a claim upon which relief could be granted. The judgment of the District Court was affirmed by the Supreme Court of the United States in Cuyahoga County Bar Assn. v. Supreme Court of Ohio (1977), 430 U.S. 901, 97 S.Ct. 1167, 51 L.Ed.2d 577.

The plaintiffs Cuyahoga County Bar Association and Crede Calhoun thereafter brought this action in the Franklin County Court of Common Pleas, seeking a declaratory judgment on numerous issues which questioned the constitutional and statutory powers of the defendant Supreme Court of Ohio to levy the aforestated attorney registration fees, and to maintain a fund for regulating the practice of law in the state.

The gravamen of the plaintiffs' complaint is that defendants, in promulgating and enforcing Rules V, VII and VIII of the Rules for The Government of The Bar, have enacted a tax upon attorneys in order to raise public revenue to create a fund to defray expenses of the state; that the defendants have established a state agency, and appointed public officers and employees; that the defendants have appropriated revenue of the state, and have not paid such collected funds into the state treasury, contrary to the requirements of R.C. 131.01 and R.C. 131.07; and, that the defendants have exercised all of these powers absolutely and without limitation.

It is further contended that the exercise of these powers by the defendants violates numerous provisions of the Ohio Constitution and several statutes of the state. Plaintiffs additionally claim that defendants are acting contrary to the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Subsequent to the filing of the complaint, defendants filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Civ.R. 12(B)(1). The trial court denied the motion holding that R.C. Chapter 2721 conferred jurisdiction upon the court to render a declaratory judgment on the issues raised by the complaint, and rejecting defendants' contention that the Supreme Court's jurisdiction over matters relating to the practice of law is exclusive. In accordance with this ruling, the court instructed defendants to file an answer to the complaint.

Defendants' answer sets forth five defenses. In the first, defendants admit many of the factual allegations of the complaint, but deny plaintiffs' right to a judgment in their favor as a matter of law. The second defense is a reassertion of the earlier contention that the trial court lacks subject matter jurisdiction over the issues raised in the complaint. In their third defense, defendants claim that the federal constitutional issues raised by plaintiffs are barred by the doctrine of res judicata. Finally, the fourth and fifth defenses assert that plaintiffs have failed to state a claim upon which relief may be granted.

The issues having been joined by the submission of all pleadings, defendants moved for a judgment on the pleadings under Civ.R. 12(C). The trial court granted the motion "for the reasons contained in the opinion of the court which was read into the record on February 10, 1978."

The court's opinion, which was incorporated by reference in the judgment entry, holds that the Ohio Supreme Court has the inherent power to promulgate rules regulating the practice of law, and that where these rules conflict with statutes the rules prevail. The court further determined that R.C. 131.01 and R.C. 131.07 do not apply to the attorney registration fees assessed by the Supreme Court. The trial court found that issues of fact remained in the pleadings, but that none of these disputed facts were material to the fundamental issues in the case. On the basis of these holdings, the court concluded that "reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for judgment on the pleadings was made."

In the Cuyahoga County Bar Association's first assignment of error it is argued that "(t)he Court erred in attempting to dispose of this action, being an action for a declaratory judgment, by rendering a judgment on the pleadings." It is urged that a judgment on the pleadings in an action for declaratory judgment has absolutely no legal effect.

Although it is true that an action for declaratory judgment seeks no recovery other than a declaration of the legal rights and relations of the parties, this does not preclude a court from granting a judgment on the pleadings in appropriate circumstances. The cases cited by appellants in this regard are distinguishable.

In Bruckman v. The Bruckman Co. (1938), 60 Ohio App. 361, 21 N.E.2d 481, cited by appellants, defendant demurred to plaintiff's petition for a declaratory judgment. The trial court dismissed the action for failure to state a cause of action. The judgment was reversed on appeal, the court holding that the dismissal of a declaratory judgment action for failure to state a cause of action is appropriate only where the plaintiff has failed to bring himself within the provisions of the declaratory judgment statutes. The court found that plaintiff had stated a claim under the declaratory judgment provisions of the General Code and therefore was entitled to prevail against the demurrer.

The instant case is distinguishable from Bruckman, in that a judgment on the pleadings is generally a decision on the merits, while a dismissal for a failure to state a claim constitutes a finding that the statement of the claim for relief is insufficient on its face. 5 Wright & Miller, Federal Practice and Procedure, Sections 1349, 1367 (1969). The Bruckman court seemingly recognized this distinction when it stated, at 362, 21 N.E.2d at 481:

"The court in the instant case wrote a very comprehensive and, in our opinion, accurate decision upon the merits of the plaintiff's contention, finding against him. If such findings had been incorporated in a judgment after proper pleadings, the rights of the plaintiff in the matter would have been properly considered." (Emphasis added.)

Appellants also cite Alsop v. Heater (1975), 45 Ohio App.2d 201, 342 N.E.2d 698, in support of the proposition that a judgment on the pleadings is improper in an action for declaratory judgment. That case, however, merely holds...