Petition of Tennessee Bar Ass'n

• Decision Date: 01 June 1976
• Citation: 539 S.W.2d 805
• Parties: Petition of TENNESSEE BAR ASSOCIATION for an order requiring annual license fee of all practicing attorneys for disciplinary purpose. Petition of CERTAIN LAWYERS FOR ORGANIZATION OF the STATE BAR.
• Court: Tennessee Supreme Court

Page 805

539 S.W.2d 805

Petition of TENNESSEE BAR ASSOCIATION for an order requiring

annual license fee of all practicing attorneys for

disciplinary purpose.

Petition of CERTAIN LAWYERS FOR ORGANIZATION OF the STATE BAR.

Supreme Court of Tennessee.

June 1, 1976.

FONES, Justice.

OPINION AND ORDER OVERRULING MOTIONS AND PETITION OF A1 S. Barger, Leon W. Davis, Jr., U. L. McDonald, Joe M. Parker, Richard H. Winningham.

The above named Petitioners, hereinafter referred to as Barger, et al, filed a complaint against the Supreme Court of Tennessee in the Chancery Court of Hamilton County seeking a decree declaring void a Supreme Court Rule promulgated on December 18, 1975.

The Supreme Court of Tennessee responded by filing both in the pending cause in this Court and in the Chancery Court of Hamilton County an Opinion and Order dated March 30, 1976. Therein, the Supreme Court documented the relevant proceedings that had transpired from the initiation by the Tennessee Bar Association, a voluntary organization of Lawyers, of an original Petition to amend Rule 42, establish an office of investigative counsel, and impose an annual license fee on lawyers to support said office, filed on May 9, 1974, to the Opinion and Order of the Supreme Court of Tennessee released on December 18, 1975. In the March 30, 1976 Order it was observed that the inferior Courts of this State may not entertain any suit or action challenging the validity of any Rule of the Supreme Court of Tennessee and that such a proceeding is unknown to the law. In short, it was held that the trial courts of this State have no jurisdiction over the Supreme Court of Tennessee as a party litigant, nor does subject matter jurisdiction exist for the purpose of examining the propriety and correctness of the Opinions and Decrees of the Supreme Court of Tennessee.

The Opinion and Order of March 30, 1976, concluded by nothing, in effect, that the proceedings in the Supreme Court of Tennessee wherein Rule 42 was promulgated are still pending and that Petitions to amend, modify or vacate Rule 42 or any other Rule of the Supreme Court may be filed at any time; ruther, that the Complaint of Barger, et al would be transferred to this Court and treated as a Petition to Vacate or Modify Rule 42.

The subsequent actions of the Learned Chancellor of the Chancery Court of Hamilton County, Part II, and Barger, et al clearly indicate that they do not comprehend the import of that Order and are unwilling to abide by it.

The learned Chancellor filed a Memorandum and Order dated April 5, 1976, noting in the first paragraph thereof that the suit by Barger, et al was against the Supreme Court of Tennessee. He then turns to the Rules of Civil Procedure and observing that they contain no explicit Rule exempting parties sued in a representative capacity from asserting defenses in accord with Rule 12.02 Tennessee Rules of Civil Procedure, he ultimately concludes that:

'(T)his Court is unaware of any appellate procedure known to the law whereby the parties in the posture of defendants in the trial Court can order a case dismissed as a Supreme Court without first having gained jurisdiction over the law suit through appellate procedures. The Court, therefore, concludes that the Order signed by the five defendants as the Supreme Court of this State, insofar as it directs and orders this Court to dismiss this case, is void for want of jurisdiction.'

Said pronouncement is in effect an adjudication by the Chancellor that the Chancery Court of Hamilton County, Tennessee, and it follows any other trial court in the State Court System, has jurisdiction over the Supreme Court of Tennessee, as a party defendant and jurisdiction of the subject matter of the Orders and Decrees of the Supreme Court for the purpose of reviewing and voiding same.

A search of Gibson's Suits in Chancery, the statutes and case law of this State and our sister states does not reveal any authority whatsoever for such jurisdiction and none is advanced by the Chancellor of Barger, et al. The premise is simply indulged that the Chancery Court has jurisdiction over the Supreme Court as a part defendant and jurisdiction to consider the validity and propriety of the Opinions and Decrees of the higher Court. It would necessarily follow that the trial courts of this State would have jurisdiction over the Court of Appeals and the Court of Criminal Appeals to review, reverse and void the final Decrees of the intermediate appellate courts.

Barger, et al, ignoring the plain provision of the order of March 30, 1976, that the only issue to be briefed and argued was the constitutionality of Rule 4i, have filed several motions. The motion to recuse was overruled at the bar of the Court on May 7, 1976. The motion to strike Petition and Brief of Louis Farrell, Jr., is denied. Barger, et al, represent themselves as lawyers 'who have solemnly and properly attempted to obtain an adjudication of constitutional issues.' This Court has heretofore held that the only forum wherein that adjudication can be made is the Supreme Court of Tennessee, but in the face of that final pronouncement they persist in pursuing a spurious and untenable course. The language of the brief of which they take exception is well within the bounds of advocacy, in the circumstances, and is a scholarly, well reasoned brief. Mr. Farrell is an active petitioning party to the above styled proceeding and has every right to be heard on the subject matter here involved, a right possessed equally with every other lawyer in Tennessee.

The argument is again made that this Court's jurisdiction is appellate only, and therefore we must abide the usual procedure of pleading in the trial court and awaiting a final decree therein and a timely appeal before the Supreme Court has any jurisdiction--even though a final judgment of this Court is the subject matter of the complaint.

The Supreme Court of Tennessee has original and exclusive jurisdiction to promulgate its own Rules. Its rule making authority embraces the admission and supervision of members of the Bar of the State of Tennessee.

Rule 37 prescribes the qualifications required for the practice of law and controls the examination and licensing procedure and the fees to be charged therefor. This Rule was prescribed and has been amended many times and from time to time by the Supreme Court exercising original jurisdiction without notice and without hearings. No other Court in Tennessee has jurisdiction to promulgate a Rule governing the licensing of attorneys, and no other Court in Tennessee has jurisdiction to review and charge or void any Rule promulgated by this Court. No count in the state court system has jurisdiction to entertain a suit against the Supreme Court of Tennessee, and a suit naming the members in their representative capacity is a suit against the Court.

In Belmont v. Board of Law Examiners, 511 S.W.2d 461 (Tenn.1974), the Supreme Court exercising original jurisdiction of a proceeding involving the constitutionality of T.C.A. § 4--1902, a legislative act in direct conflict with Supreme Court Rule 37, Section 7, addressed the jurisdictional question as follows:

'Prior to discussing the constitutional question herein involved, we must make it clear that the petition to review the action of the Board of Law Examiners in denying petitioner's request to take the examination for the fifth time is properly before this Court. We reach the foregoing conclusion because this Court has the inherent power to prescribe and administer rules pertaining to the licensing and admission of attorney and as a necessary corollary thereto, no other court in Tennessee can construe or determine the applicability of a rule used to implement that power. It results, therefore, if this Court has the inherent and original power to prescribe the rules, then this Court has the original power to review the action of the Board of Law Examiners in interpreting and applying them.'

511 S.W.2d at 462.

In Petition for Rule of Court Activating, Intergrating and Unifying the State Bar of Tennessee, 199 Tenn. 78, 282 S.W.2d 782 (1955), the Supreme Court exercised original jurisdiction of a petition to adopt a rule of court. At that time the members of this Court were Chief Justice A. B. Neal, Justices Allen N. Prewitt, Pride Tomlinson, Hamilton S. Burnett and John E. Swepston.

The lawyers opposing unification urged, as a threshhold issue, that Chapter 54, Public Acts of 1955 prohibited unification and that the Supreme Court had no jurisdiction to pass upon the constitutionality of that legislative Act in the pending proceeding, wherein the Court was exercising original jurisdiction, because the jurisdiction of the Supreme Court was appellate only.

The Supreme Court, Justice Tomlinson writing, answered that contention as follows:

'If Courts have inherent power to prescribe qualifications required for the practice of law, it seems to follow, as held by the Supreme Court of Massachusetts, in Collins v. Godfrey, 324 Mass. 574, 87 N.E.2d 838, 841, that 'the Supreme Judicial Court, as under the Constitution the highest court in the Commonwealth, is the proper representative of the judicial department and the repository of the power.' This Court's power, then, In this respect is original, rather than appellate. That being true, its adjudication as to whether Chapter 54 deprives it of this original authority is only an incident to its decision as to whether it will exercise such authority.' (Emphasis added).

282 S.W.2d at 784.

That is precisely the jurisdictional issue involved here. The holding of our predecessors on this Court in 1955 was sound and controls absolutely the disposition of the issue of jurisdiction raised here.

The Supreme Court had jurisdiction of the issue of the constitutionality of this Court's authority to impose an annual license fee on...