Levy v. State

• Decision Date: 26 November 2003
• Docket Number: No. 49A02-0301-CR-28.,49A02-0301-CR-28.
• Citation: 799 N.E.2d 71
• Parties: Anthony LEVY, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

799 N.E.2d 71

Anthony LEVY, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 49A02-0301-CR-28.

Court of Appeals of Indiana.

November 26, 2003.

Transfer Denied January 9, 2004.

John Pinnow, Greenwood, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Anthony Levy brings this interlocutory appeal challenging the trial court's denial of his motion to dismiss the charges against him. He presents two issues for our review, which we restate as:

I. Whether the Indiana Supreme Court has exclusive jurisdiction over all matters relating to the unauthorized practice of law; and

II. Whether enactment of Ind.Code § 33-1-5-1 (Burns Code Ed. Repl. 1998) violates the separation of powers doctrine.

We affirm.

Levy was charged with the unauthorized practice of law for his part in a real estate transaction. At the time, Levy was neither an attorney nor a real estate agent. After he was charged, Levy filed a motion seeking dismissal of the charges. That motion was denied. He subsequently sought and received certification for an interlocutory appeal. This court accepted jurisdiction of his appeal. Thereafter, the State petitioned the Supreme Court, requesting that it assume jurisdiction over the matter because it dealt with the issue of the Supreme Court's jurisdiction. Our Supreme Court denied the State's petition.

Upon appeal, Levy specifically claims that the Supreme Court is granted exclusive and original jurisdiction of matters concerning the unauthorized practice of law by Article 7, Section 4 of the Indiana Constitution. Consequently, he asserts that the Marion Superior Court has no jurisdiction to try him for a violation of I.C. § 33-1-5-1. Further, he claims that the enactment of I.C. § 33-1-5-1 by the General Assembly amounts to a violation of the separation of powers between the legislative and judicial branches of government, in contravention of Article 3, Section 1 of the Indiana Constitution.

I Jurisdiction

Our review begins with Article 7, Section 4 of the Indiana Constitution, which states in relevant part:

"The Supreme Court shall have no original jurisdiction except in admission to the practice of law; discipline or disbarment of those admitted; the unauthorized practice of law; discipline, removal, and retirement of justices and judges; supervision of the exercise of jurisdiction by the other courts of the State; and issuance of writs necessary or appropriate in aid of its jurisdiction." (emphasis supplied).

While many cases have involved the application of this constitutional provision, we have found no case in which either this court or our Supreme Court have interpreted how this provision is to be applied when an individual has been charged with the crime of unauthorized practice of law. That being said, several cases, statutes, and the rules of appellate procedure inform our decision.

The basis for Levy's argument is that Article 7, Section 4 has been interpreted to grant the Supreme Court original and exclusive jurisdiction over the enumerated issues. Indeed, there is support for his assertion. In the case of In re Mann, 270 Ind. 358, 360, 385 N.E.2d 1139, 1141 (1979), our Supreme Court in a per curiam opinion stated:

"Under the Constitution of the State of Indiana, this Court is given exclusive jurisdiction relating to the disbarment or discipline of attorneys. Ind. Const., Art. 7, Sec. 4. Thus, it is this Court's constitutional responsibility to preserve the integrity of the legal profession and safeguard the public from those who do not meet acceptable standards of professional behavior."

In the case of In re Fletcher, 655 N.E.2d 58, 59 (Ind.1995), also a per curiam opinion, our Supreme Court stated, "This Court has held that, pursuant to Section 4, it is the exclusive province of this Court to regulate professional legal activity." Most recently, in In re Murgatroyd, 741 N.E.2d 719, 719 (Ind.2001), again a per curiam opinion, our Supreme Court stated, "it is the exclusive province of this Court to regulate professional legal activity in this state...." In a footnote, the Court cited to Article 7, Section 4 and Fletcher, supra, for support.

Even though these three cases were brought before our Supreme Court in disciplinary actions against an attorney, they are applicable here because Article 7, Section 4 grants our Supreme Court the same jurisdiction over the admission and discipline of attorneys as it does over the unauthorized practice of law, i.e., original jurisdiction. Therefore, we have no choice but to interpret the grant of jurisdiction to be the same for each issue, at least from a constitutional perspective. Nonetheless, we do not agree with Levy's assessment that our Supreme Court's jurisprudence has conclusively established that only the Supreme Court has jurisdiction over all matters relating to the unauthorized practice of law.

In Fletcher, immediately prior to announcing that it was granted exclusive jurisdiction to regulate professional legal activity, our Supreme Court stated that Article 7, Section 4 granted "original jurisdiction." 655 N.E.2d at 59. Thus, our Supreme Court seemed to recognize that the constitutional provision granted the Court only original jurisdiction, but, relying upon prior cases, went on to conclude that it had exclusive jurisdiction pursuant to Article 7, Section 4. In Disciplinary Comm'n of Supreme Court of Indiana v. Owen, 486 N.E.2d 1012 (Ind.1986), our Supreme Court recognized additional authority in stating that it has exclusive and original jurisdiction of matters concerning the unauthorized practice of law. Not only did the court cite to Article 7, Section 4, but it also relied upon I.C. § 33-2-3-1 and Ind. Appellate Rule 4(A)(3). Id. at 1013. Likewise, in Miller v. Vance, 463 N.E.2d 250, 251 (Ind.1984), our Supreme Court cited to Article 7, Section 4, Appellate Rule 4(A)(3), and two additional cases in indicating that it had exclusive jurisdiction over the unauthorized practice of law. However, in that same opinion, our Supreme Court stated, "The determination of what constitutes the unauthorized practice of law in specific circumstances is the exclusive jurisdiction of this Court." Id. at 253. The only authority cited by our Supreme Court for that position was Article 7, Section 4. Id. In Cincinnati Ins. Co. v. Wills, 717 N.E.2d 151, 165 (Ind.1999), Justice Dickson, in his dissenting opinion, stated that our Supreme Court has exclusive jurisdiction over the admission and discipline of attorneys pursuant to Article 7, Section 4, Fletcher, supra, and In re Kesler, 272 Ind. 161, 397 N.E.2d 574 (1979),cert. denied, 449 U.S. 829, 101 S.Ct. 96, 66 L.Ed.2d 34 (1980).¹ Nonetheless, in the following sentence, he noted that the Court had original jurisdiction in matters relating to the unauthorized practice of law pursuant to Article 7, Section 4, Fletcher, supra, and In re Contempt of Mittower, 693 N.E.2d 555 (Ind.1998).² Finally, our Supreme Court has adopted new appellate rules which took effect on January 1, 2001. Those rules provide that our Supreme Court has "exclusive jurisdiction" over "[m]atters relating to the practice of law including: (a) [a]dmissions to practice law; (b) [t]he discipline and disbarment of attorneys admitted to the practice of law; and (c) [t]he unauthorized practice of law (other than criminal prosecutions therefor)." Indiana Appellate Rule 4(B).

Article 7, Section 4, as currently written, came into being following an amendment to the Indiana Constitution in 1970. At that time, original jurisdiction was defined as, "Jurisdiction in the first instance; jurisdiction to take cognizance of a cause at its inception, try it, and pass judgment upon the law and facts. Distinguished from appellate jurisdiction." Black's Law Dictionary 1251 (4th ed.1968) (emphasis in original). Exclusive jurisdiction was viewed to "preclude [the] idea of co-existence, and mean[s] possessed to exclusion of others." Id. at 673. Clearly, original and exclusive jurisdiction were not viewed as the same type of jurisdiction when the constitutional amendment was passed. Neither are they viewed as the same today.³

From a review of the relevant cases, we may deduce that at the very least, there has been some confusion or uncertainty about what source provided our Supreme Court with exclusive jurisdiction over the areas in which Article 7, Section 4 gave it original jurisdiction. It appears, though, that our Supreme Court, through adopting Appellate Rule 4(B), recognized and enunciated that Article 7, Section 4 did not grant it exclusive jurisdiction of the listed matters, but that its exclusive province came from some other source. That other source was a statute passed by our General Assembly which made the grant of original jurisdiction, in some instances, a statutory grant of exclusive jurisdiction.

Indiana Code § 33-2-3-1 (Burns Code Ed. Repl.1998) states, "The Supreme Court of this state shall have the exclusive jurisdiction to admit attorneys to practice law in all courts of the state and exclusive jurisdiction to issue restraining orders and injunctions in all cases involving the unauthorized practice of the law under such rules and regulations as it may prescribe." This statute was originally passed in 1931.⁴ Based upon the language of this statute, there is no dispute that our Supreme Court has sole and exclusive power to prohibit the unauthorized practice of law by issuing restraining orders and injunctions to stop those who are not licensed by the Supreme Court from practicing law. However, what is crucial to our analysis is what the statute does not say, i.e. that our Supreme Court has exclusive power to punish those who have engaged in the unauthorized practice of law for their past transgressions. Certainly, our Supreme Court could punish violations of its restraining orders and...