Idaho State Bar Ass'n v. Idaho Public Utilities Commission, No. 13784

• Court: United States State Supreme Court of Idaho
• Writing for the Court: McFADDEN; BAKES
• Citation: 102 Idaho 672,637 P.2d 1168
• Parties: IDAHO STATE BAR ASSOCIATION, Appellant, v. IDAHO PUBLIC UTILITIES COMMISSION, Respondent, and Idaho Citizens Coalition, Intervenor.
• Decision Date: 08 December 1981
• Docket Number: No. 13784

Page 1168

637 P.2d 1168 102 Idaho 672 IDAHO STATE BAR ASSOCIATION, Appellant,
v.
IDAHO PUBLIC UTILITIES COMMISSION, Respondent,
and Idaho Citizens Coalition, Intervenor. No. 13784. Supreme Court of Idaho. Dec. 8, 1981.

[102 Idaho 673]

Page 1169

Linda L. Holdeman, Boise, for appellant.

David H. Leroy, Atty. Gen., John J. McMahon, and Cynthia S. Rutter, Deputy Attys. Gen., for respondent.

Raymond C. Givens, Coeur d'Alene, for intervenor Idaho Citizens Coalition.

McFADDEN, Justice.

In early 1977, the Idaho Public Utilities Commission (hereinafter Commission), initiated a review of its Rules of Practice and Procedure. After some three years following extensive hearings, comments, and revisions, the Commission issued Order No. 15503 on May 8, 1980, adopting the following rule concerning appearances and representation of parties before the Commission.

"Rule 4.3 Representation of Parties

Appearances and representation of parties shall be made as follows:

(a) A party who is a natural person shall be entitled to represent himself or herself or be represented by an attorney.

(b) Non-profit organizations are entitled to be represented by an officer, other duly authorized representative or by an attorney.

(c) Utilities and motor carriers with present or anticipated annual gross income less than $100,000 are entitled to be represented by a partner, officer, duly authorized representative or by an attorney.

(d) All other parties shall appear and be represented by an attorney duly admitted to practice and in good standing in the state of Idaho.

An attorney who is not admitted to practice in the state of Idaho shall not be entitled to appear and represent parties unless such attorney is duly admitted to practice and in good standing before the highest court of any state and is associated with an attorney who is admitted to practice and in good standing in the state of Idaho."

The Idaho State Bar objected in the preliminary stages of this process to the proposed[102 Idaho 674]

Page 1170

rule concerning representation of parties before the Commission on the ground that it would allow for the unauthorized practice of law in violation of I.C. § 3-104. ¹ See also I.C. § 3-420. ² The Bar now appeals from the adoption of the rule previously set forth, specifically objecting to subsections (b) and (c). The Bar asserts that these subsections of the rule constitute a usurpation of the authority of this court to define and regulate the practice of law.

At the outset, it should be noted that this case does not involve a situation where a person has engaged in activity which is attacked as constituting the practice of law. Rather, the Bar has presented to the court the rule promulgated by the Commission contending that it facially allows for the unauthorized practice of law contrary to the above noted statutes and in derogation of constitutionally granted Supreme Court control over legal practice in the state. Application of Kaufman, 69 Idaho 297, 206 P.2d 528 (1949).

The position of the Bar, as the appellant in this case, also should not be misunderstood. The Bar is composed of all attorneys regularly admitted to practice in this state, I.C. § 3-405, and is governed by a board of commissioners as established by statute. I.C. § 3-402, et seq. The board and operating staff of the Bar have the obligation to supervise, under the Supreme Court's ultimate control, the admission, licensing and disciplining of attorneys and the practice of law in this state. It was recognized some time ago that the Bar and its board of commissioners act in an administrative capacity as an arm of the Supreme Court in carrying out its supervisory function. See In re Edwards, 45 Idaho 676, 266 P. 665 (1928). Indeed, in the recent past this court has referred two matters concerning possible unauthorized practice of law to the Bar for investigation and appropriate action. See Weston v. Gritman Memorial Hospital, 99 Idaho 717, 587 P.2d 1252 (1978); White v. Idaho Forest Industries, 98 Idaho 784, 572 P.2d 887 (1977). The Bar, therefore, acts as a means by which this court controls the practice of law in Idaho and, in the present case, raises to the court for consideration questions regarding the propriety of the adopted rule of the Public Utilities Commission.

The judicial power of this state is vested in this court. Article 5, § 2 of the Idaho Constitution provides:

"Judicial power-Where vested.-The judicial power of the state shall be vested in a court for the trial of impeachments, a Supreme Court, district courts, and such other courts inferior to the Supreme Court as established by the legislature. The courts shall constitute a unified and integrated judicial system for administration and supervision by the Supreme Court. The jurisdiction of such inferior courts shall be as prescribed by the legislature. Until provided by law, no changes shall be made in the jurisdiction [102 Idaho 675]

Page 1171

or in the manner of the selection of judges of existing inferior courts."

The judicial powers so established are protected from infringement or interference by the legislative or executive branches of state government. Articles 2, § 1, and 5, § 13, of the Idaho Constitution provide:

"Art. 2, § 1. Departments of government.-The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted."

"Art. 5, § 13. Power of the legislature respecting courts.-The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a coordinate department of the government...