Petition of Rhode Island Bar Ass'n

• Decision Date: 24 June 1977
• Docket Number: No. 76-363-M,76-363-M
• Citation: 374 A.2d 802,118 R.I. 489
• Court: Rhode Island Supreme Court
• Parties: PETITION OF RHODE ISLAND BAR ASSOCIATION. P.

Page 802

374 A.2d 802

118 R.I. 489

PETITION OF RHODE ISLAND BAR ASSOCIATION.

No. 76-363-M.P.

Supreme Court of Rhode Island.

June 24, 1977.

[118 R.I. 494] Daniel J. Murray, Richard A. Licht, Providence, for petitioner.

Samuel A. Olevson, Providence, for respondent.

OPINION

KELLEHER, Justice.

This case comes before us on petition of the Rhode Island Bar Association (the association) to suspend the respondent, Aram K. Berberian (Berberian), for nonpayment of the $65 association dues for the period October 1, 1975, through September 30, 1976. Berberian has challenged the Unification Order of June 28, 1973, ¹ twice before. He first brought suit in the United States District Court, which dismissed the complaint, and the First Circuit affirmed. Thereafter, Berberian refused to pay his 1974 association dues. The association petitioned to suspend him, and we ordered him suspended if he did not pay. Petition of Rhode Island Bar Ass'n, 115 R.I. 901, 339 A.2d 277 (1975). He paid. Now, once again he has refused to pay and challenges the validity of the Unification Order. The ultimate issue remains the same: Can the association require Berberian to pay $65 per year? And the ultimate answer remains the same: Yes.

Berberian's theories are fourfold. First, he contends that the association is a state agency within the meaning of the Administrative Procedures Act (APA) and that proper procedures were not followed in the assessment of dues. Secondly, he maintains that the dues are an unconstitutional tax. His third claim is that the unification of the Rhode Island Bar is in violation of the Sherman Anti-Trust Act, and, finally, he asserts that by being adjudged bankrupt on June 16, 1976, and having his debts discharged, his "debt" to the association was likewise discharged and he does not now have to pay.

Berberian's contention that the association is an agency subject to the APA is meritless to the point of being frivolous. General Laws 1956 (1969 Reenactment) § 42-35-1(a) defines "agency" for the purposes of the Act as a "state board, commission, department, or officer, other than the legislature or the courts, authorized by law to make rules or to determine contested cases." It is obvious that the agency described by the APA is a governmental entity, apart from the judicial or legislative branches, ² which is created by statute, executive order, or the Constitution and which can affect the rights of private parties either through adjudication or rulemaking. See 1 Davis, Administrative Law § 1.01 at 1-4 (1958 ed.). Although the association can regulate its internal affairs to some extent, it is not empowered to determine contested cases or to make rules affecting the rights and obligations of its members without this court's approval. Therefore, it is not an agency within the meaning of § 42-35-1(a).

Equally without merit is Berberian's second contention, that the $65 fee is an unconstitutional tax. The required dues are not a tax designed to raise revenue, but a licensing fee. Petition of Florida State Bar Ass'n, 40 So.2d 902, 906 (Fla. 1949); Lathrop v. Donohue, 10 Wis.2d 230, 102 N.W.2d 404 (1960). As one court has noted, the membership fee is an "exaction for regulation only" without which the integrated bar program would be impossible. Petition of Florida State Bar Ass'n, supra at 906-07. We concur with the view that the requirement that anyone admitted to practice law in the state be a member of the unified bar and pay dues thereto constitutes proper regulation of those engaged in the practice of law. In re Unification of New Hampshire Bar, 109 N.H. 260, 248 A.2d 709 (1968).

Berberian's third argument is that the Unification Order violates the Sherman Anti-Trust Act. Essentially, the argument is as follows: Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), established that the practice of law is commerce that can affect interstate commerce and in fact Berberian engages in the practice of law outside this state; the Unification Order established an Elizabethan guild; and the establishment of this "guild," coupled with the obligation to pay dues, violates the Sherman Anti-Trust Act. The argument is without merit. Goldfarb, while recognizing the potential interstate commercial effects of price-fixing, is not on point here. The $65 association fee is hardly price-fixing of services. The compulsory aspect of paying one's annual dues to the Bar Association in no way comes close to promoting those anti-competitive practices which prompted the 1890 enactment of the Sherman Anti-Trust Act. Each member of the association is still free to express his or her view on the various positions taken by the association's leadership even though such views may be diametrically opposed to those of the leadership or a majority of the membership. While Shakespeare had much to say...