Martin v. Davis

• Decision Date: 10 December 1960
• Docket Number: No. 42026,42026
• Citation: 187 Kan. 473,357 P.2d 782
• Parties: Keith MARTIN, Appellant, v. Joseph S. DAVIS as Probate Judge of Johnson County, Kansas, Appellee.
• Court: Kansas Supreme Court

Page 782

357 P.2d 782

187 Kan. 473

Keith MARTIN, Appellant, v. Joseph S. DAVIS as Probate Judge of Johnson County, Kansas, Appellee.

No. 42026.

Supreme Court of Kansas.

Dec. 10, 1960.

Syllabus by the Court

1. Under Article 3, Section 1 of the Constitution of Kansas the supreme court stands at the head of the judicial department and is invested with inherent power arising from its creation, or from the fact that it is a court, which power is essential to its being and dignity, and does not require an express grant to confer it.

2. Inherent power is not an arbitrary and despotic power to be exercised at the pleasure of the court, or because of passion, prejudice, or personal hostility; rather, it is one to be used with moderation and caution in the exercise of sound judicial discretion.

3. The practice of the law is so intimately connected and bound up with the exercise of judicial power in the administration of justice that the right to regulate the practice naturally and logically belongs to the judicial department of the government.

4. Under Article 3, Section 1 of the Constitution of Kansas, the supreme court has the inherent power to prescribe conditions for admission to the Bar, to define, supervise, regulate and control the practice of law, whether in or out of court, and statutory regulations are effective and directory only when they accord with the inherent power of the judiciary.

5. The supreme court's legitimate concern for maintaining high standards for the practice of the law and the administration of justice extends beyond the initial licensing of attorneys and, when admitted to the Bar, they are amenable to the rules and discipline of the court in all matters of order and procedure and to the continuing supervision and control of the practice of the law not in conflict with the federal and state constitutions.

6. No final judgment results when the supreme court admits an applicant to the Bar of the state of Kansas; a license or privilege is merely conferred upon the applicant to engage in the practice of law subject to the conditions prescribed in paragraph 5 of the syllabus.

7. While the police power is generally considered an exclusive power of the legislature, it may be exercised by courts.

8. Rules 41 and 54 of the supreme court, amended December 15, 1958, providing in substance that an attorney admitted to the Bar of Kansas who has been admitted to the Bar of another state and who is regularly engaged in the practice of law in that state shall associate local counsel before he can appear in the courts or before boards or commissions of Kansas, were adopted to serve the public policy of the state in all phases of actions, hearings and proceedings where the applicant or litigant is represented by a Kansas licensed attorney who is regularly engaged in the practice of law in another state.

9. Rules referred to in paragraph 8 of the syllabus are examined, and it is held: The rules are a proper and valid exercise of the inherent power of the supreme court to regulate, supervise and control the practice of law before the courts of the state, and, as applied to the appellant, they do not deny him due process of the law or the equal protection of the law in violation of the Fourteenth Amendment to the Constitution of the United States, as more fully set forth in the opinion.

Keith Martin, Kansas City, Mo., and Mission, Kan., argued the cause pro se, and Howard E. Payne, W. C. Jones and H. Thomas Payne, Olathe, were with him on the briefs for appellant.

John J. Gardner, County Attorney, Olathe, argued the cause and was on the briefs for appellee.

D. B. Lang, Scott City, of counsel, Bar Association of Kansas, James E. Fussell, Leavenworth, of counsel, Leavenworth County Bar Association, and Willard L. Phillips, James K. Cubbison, Lee E. Weeks, Edward M. Boddington, Sr., Charles F. Williams, Joseph T. Carey and Bernard W. Alden, Kansas City, were on the briefs of the Wyandotte County Bar Association as amicus curiae.

George A. Lowe, Engen T. Hackler, Roy S. Lowe, Hugh H. Kreamer and James H. Bradley, Olathe, and Bernis G. Terry, Mission, were on the briefs of the Johnson County Bar Association as amicus curiae.

FATZER, Justice.

At issue is the power of the supreme court of Kansas to control and supervise the practice of law before the courts of the state by Kansas licensed attorneys regularly engaged in the practice of law in another state.

The action was one in mandamus to compel the appellee, the probate judge of Johnson County, Kansas, to permit the plaintiff, Keith Martin, to file cases in that court and to appear and try them without the appearance or association of local counsel as required by Rules 41 and 54 of this court, amended December 15, 1958, and to declare those rules unconstitutional and void as contravening the Fourteenth Amendment to the Constitution of the United States. The district court quashed the alternative writ and the plaintiff appealed. The principal question presented was before this court in Taylor v. Taylor, 185 Kan. 324, 342 P.2d 190, certiorari denied 361 U.S. 374, 80 S.Ct. 401, 4 L.Ed.2d 380, and was decided adversely to the appellant.

In the interest of brevity Rules 41 and 54, and G.S.1949, 7-104 therein referred to, are not set forth since the portions here pertinent were quoted at length in Taylor v. Taylor, supra, 185 Kan. at pages 326 and 327, 342 P.2d 190, and are incorporated in this opinion by reference. Suffice it to say those rules, as amended, provide in substance that an attorney admitted to the Bar of Kansas who has been admitted to the Bar of another state and who is regularly engaged in the practice of law in that state shall associate local counsel before he can appear in the courts or before boards or commissions of Kansas. While rules of the supreme court form no part of the statutory law of the state, the revisor of statutes publishes them in the general statutes, and the reader may find Rule 41 as G.S.1959 Supp., 7-122, and Rule 54 as G.S.1959 Supp., 60-3827.

The petition alleged that the appellant was graduated from the University of Kansas Law School in 1947 and almost immediately thereafter, in August 1947, was duly licensed to practice law in the state of Missouri, and since that time has regularly practiced law and maintained his office in the Bryant Building, Kansas City, Jackson County, Missouri. On February 12, 1948, he was admitted to practice law before the supreme court of Kansas and all inferior courts, and since April 1948 has continuously maintained an office and his residence in Mission, Johnson County, Kansas.

The appellant alleged he is engaged in the general practice of law and that his clients frequently live in one county and either work or have business connections in another county and state and that their problems involve the laws and procedures of Kansas and Missouri, and that his knowledge of the laws and procedures and his ability to practice in either state have been of assistance to him in obtaining clients and in being able to gve them counsel and court representation; that he consults with as many clients in his Kansas office or home as in his Missouri office although most of his office work is performed in his Missouri office; that he has represented the State Highway Commission in litigation in Kansas courts and has tried as many litigated matters in the courts of Kansas as in Missouri; that he has also tried cases in the federal courts of each state and has argued cases in the appellate courts of each state as well as the United States Circuit Court of Appeals for the Eighth and Tenth Circuits; that since 1951 he has been attorney for the city of Mission and is presently a member of the State Board of Tax Appeals of Kansas; that he wrote an article on Kansas Procedure published in 6 Kansas Law Review, p. 134, and that he has been and is a member of the state and local Bar associations of Kansas and Missouri.

Martin alleged that his net income from the practice of law exceeded $15,000 per year and that approximately one half of that sum has been earned in Kansas and has been so reported on his Kansas state income tax returns; that a large portion of his income is derived from his appearances in the defendant's court which has jurisdiction of adoptions and decedents' estates; that the minimum fee schedules of the Johnson and Wyandotte County Bar Associations require that local counsel be compensated approximately one-third to one-half of the fee for the particular litigation; that prior to the amending of Rules 41 and 54 and the decision in the Taylor case, supra, he regularly appeared for clients without the appearance and association of local counsel but that subsequent thereto the defendant has not allowed him to appear and try cases in the probate court of Johnson County unless he has local counsel associated with him, and the defendant has informed him that in the future he cannot appear as attorney for clients without the appearance and association of local counsel as required by Rules 41 and 54.

Martin alleged that Rules 41 and 54 are vague, arbitrary and without standards and have caused his Kansas license to be in fact a nullity as long as he practices law 'regularly' in Missouri; that those rules not only deprive him of part of his income from his Kansas practice but also discourage clients from seeking his services; that because he cannot represent them in Kansas courts without the appearance of another lawyer, they have come to believe he cannot counsel them regarding Kansas law or represent them in Kansas courts; that the amended rules place him in the category of a foreign attorney as referred to in G.S.1949, 7-104, and render his Kansas license inoperative so long as he 'regularly' practices in Missouri unless he has another Kansas lawyer associated and appearing with him; that he has continuously listed and maintained telephones in his offices in Kansas and Missouri...