Hustedt v. Workers' Comp. Appeals Bd.

• Decision Date: 07 December 1981
• Citation: 30 Cal.3d 329,636 P.2d 1139,178 Cal.Rptr. 801
• Court: California Supreme Court
• Parties: , 636 P.2d 1139 Edward F. HUSTEDT, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Respondent. L.A. 31384.

Page 801

178 Cal.Rptr. 801

30 Cal.3d 329, 636 P.2d 1139

Edward F. HUSTEDT, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Respondent.

L.A. 31384.

Supreme Court of California, In Bank.

Dec. 7, 1981.

George V. Denny III, Beverly Hills, for petitioner.

Herbert M. Rosenthal, Truitt A. Richey, Jr., San Francisco, and Robert M. Sweet, Los Angeles, as amici curiae on behalf of petitioner.

Richard W. Younkin, William B. Donohoe, Dexter W. Young and Valerie L. Westen, San Francisco, for respondent.

BIRD, Chief Justice.

Does the separation of powers doctrine preclude the Legislature from granting to the Workers' Compensation Appeals Board (Board) the power to discipline an attorney by temporarily or permanently prohibiting him or her from practicing before the Board? Does the Board have authority to proceed with the contempt action it instituted against petitioner?

I.

Petitioner, Edward F. Hustedt, was admitted to the practice of law in this state on January 5, 1966.

In 1978, Hustedt was retained to represent a defendant employer in a compensation case pending before the Board. On or about March 2, 1979, Hustedt received notice that the case had been set for conference on March 22 before Workers' Compensation Judge Clayton Robins. On that date, Judge Robins adjourned the conference hearing to March 26, at 9 a. m. Hustedt appeared through an associate who did not object to the adjournment. The next day, Hustedt called the judge and informed him that he could not appear until the afternoon. After some discussion, the judge told Hustedt that if someone from his firm were not present at 9 a. m., contempt proceedings would be initiated against Hustedt.

On March 26, neither Hustedt nor any other member of his firm appeared at the appointed time. Instead, at 8 a. m. that morning, Hustedt had an associate in his firm file a petition to disqualify Judge Robins on the grounds of bias and prejudice. ¹

When the hearing convened, Judge Robins informed opposing counsel that a petition to disqualify him had been filed that morning. The judge then called a recess so that he could contact the Board to determine how he should proceed. On his return, the judge announced that he was recusing himself. The petition to disqualify was so inflammatory Judge Robins felt he could not continue in the case. Moreover, his recusal would prevent delay.

Shortly thereafter, Judge Robins recommended to the Board that it order Hustedt to show cause why he should not be held in contempt and why he should not be suspended from the practice of law before the Board. As a result of the judge's recommendation, concurrent contempt and disciplinary proceedings were initiated against Hustedt in July 1979. Both proceedings were based on (1) Hustedt's alleged willful failure to appear at the hearing on March 26, and (2) his filing of the petition for disqualification. The Board alleged that the petition not only contained contemptuous statements but also had been filed for the purpose of delaying proceedings in the compensation case.

The trial in the contempt and disciplinary actions was continued several times so that the Board could consider Hustedt's pretrial motions. ² Following the denial of these motions, petitioner filed a petition for writ of prohibition to bar the Board from proceeding with either the contempt action or the disciplinary proceeding.

II.

The Board initiated the disciplinary proceeding against petitioner pursuant to Labor Code section 4907. That section sets forth that "(t)he privilege of any person, including attorneys admitted to practice in the Supreme Court of the state to appear in any proceeding as a representative of any party before the appeals board, or any of its referees, may, after a hearing, be removed, denied, or suspended by the appeals board for a violation of this chapter or for other good cause."

Petitioner now seeks to prevent the Board from completing this disciplinary proceeding. He argues that the 1929 amendment to section 4907, which granted the Board disciplinary power over attorneys, is unconstitutional. ³

Certain preliminary matters are clear. This court has not previously addressed the constitutionality of the 1929 amendment. The Board, relying upon Eagle Indem. Co. v. Industrial Acc. Com. (1933) 217 Cal. 244, 18 P.2d 341, half-heartedly disputes this but its contention lacks merit. Eagle Indemnity declared constitutional the statute allowing a party in a compensation proceeding to be represented by a nonattorney. (See Lab.Code, § 5700.) The constitutionality of the 1929 amendment to section 4907 was simply not at issue in the case.

Neither party disputes that the 1929 amendment to section 4907 is a regulation affecting the practice of law. It is well established that "participation on behalf of another in hearings and proceedings before a board or commission constitutes the practice of law. The cases uniformly hold that the character of the act, and not the place where it is performed, is the decisive element, and if the application of legal knowledge and technique is required, the activity constitutes the practice of law, even if conducted before an administrative board or commission." (Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 543, 86 Cal.Rptr. 673, 469 P.2d 353; see generally, Annot., Handling, Preparing, Presenting, or Trying Workmen's Compensation Claims or Cases as Practice of Law (1965) 2 A.L.R.3d 724.)

Relying upon the separation of powers doctrine, petitioner contends that the power to regulate the practice of law, including the power to discipline attorneys, is an inherent power of the judiciary which the Legislature is forbidden by the California Constitution from conferring upon the Board. ⁴ Article XIV, section 4, which authorizes the Legislature to establish a complete system of workers' compensation, does not provide a constitutional basis for the grant of this judicial power to the Board by the Legislature. Therefore, petitioner contends, the Legislature violated the separation of powers doctrine when it adopted the 1929 amendment to section 4907.

Petitioner's first premise, that the discipline of attorneys is a judicial function, is undisputed. Article VI, section 1, of the California Constitution vests the judicial power of this state in the Supreme Court, Courts of Appeal, superior courts, municipal courts and justice courts. Since the "courts are set up by the Constitution without any special limitations" on their power, they "have ... all the inherent and implied powers necessary to properly and effectively function as a separate department in the scheme of our state government. (Citations.)" (Brydonjack v. State Bar (1929) 208 Cal. 439, 442, 251 P. 1018; see also Millholen v. Riley (1930) 211 Cal. 29, 33-34, 293 P. 69; In re Garner (1918) 179 Cal. 409, 177 P. 162; Nicholl v. Koster (1910) 157 Cal. 416, 423-424, 108 P. 302.)

In California, the power to regulate the practice of law, including the power to admit and to discipline attorneys, has long been recognized to be among the inherent powers of the article VI courts. ⁵ Indeed, every state in the United States recognizes that the power to admit and to discipline attorneys rests in the judiciary. (Martyn, Lawyer Competence and Lawyer Discipline: Beyond the Bar? (1981) 69 Geo.L.J. 705, 707, fn. 4.) "This is necessarily so. An attorney is an officer of the court and whether a person shall be admitted (or disciplined) is a judicial, and not a legislative, question." (In re Lavine, supra, 2 Cal.2d 324, 328, 41 P.2d 161; see also Stratmore v. State Bar, supra, 14 Cal.3d 887, 889-890, 123 Cal.Rptr. 101, 538 P.2d 229.) ⁶

Nevertheless, this court has respected the exercise by the Legislature, under the police power, of "a reasonable degree of regulation and control over the profession and practice of law ..." in this state. (State Bar of California v. Superior Court (1929) 207 Cal. 323, 331, 278 P. 432; Brydonjack v. State Bar, supra, 208 Cal. at pp. 442-444, 281 P. 1018.). ⁷ This pragmatic approach is grounded in this court's recognition that the separation of powers principle does not command "a hermetic sealing off of the three branches of Government from one another." (Buckley v. Valeo (1976) 424 U.S. 1, 121, 96 S.Ct. 612, 683, 46 L.Ed.2d 659.) Although the doctrine defines a system of government in which the powers of the three branches are to be kept largely separate, it also comprehends the existence of common boundaries between the legislative, judicial, and executive zones of power thus created. (Brydonjack v. State Bar, supra, 208 Cal. at p. 444, 281 P. 1018.) Its mandate is "to protect any one branch against the overreaching of any other branch. (Citations.)" (Bixby v. Pierno (1971) 4 Cal.3d 130, 141, 93 Cal.Rptr. 234, 481 P.2d 242; accord Brydonjack v. State Bar, supra.)

Consequently, unless the Legislature is first determined to have overreached its traditionally recognized authority to regulate the legal profession in bestowing the power to discipline attorneys upon the Board, this court need not consider whether the special power granted the Legislature pursuant to article XIV, section 4 authorizes its action.

The standard for assessing whether the Legislature has overstepped its authority and thereby violated the separation of powers principle has been summarized as follows. "(T)he legislature may put reasonable restrictions upon constitutional functions of the courts provided they do not defeat or materially impair the exercise of those functions." (Brydonjack v. State Bar, supra, 208 Cal. at p. 444, 281 P. 1018; accord In re Lavine, supra, 2 Cal.2d at p. 328, 41 P.2d 161.)

The Board contends that the 1929 amendment to section 4907 does not impair the exercise of this court's inherent power over the discipline of attorneys. The power granted pursuant to that amendment is not, the Board asserts, significantly different from the power granted the State Bar under the State Bar Act (...