State Bar of Mich. v. Brotherhood of R. R. Trainmen

• Decision Date: 09 March 1970
• Docket Number: No. 43,43
• Citation: 383 Mich. 201,174 N.W.2d 811
• Parties: , 75 L.R.R.M. (BNA) 2262, 64 Lab.Cas. P 52,405 The STATE BAR OF MICHIGAN, Plaintiff and Appellee, v. The BROTHERHOOD OF RAILROAD TRAINMEN, and all other members, agents and officers of the Brotherhood of Railroad Trainmen of the State of Michigan, Defendants and Appellants.
• Court: Michigan Supreme Court

Page 811

174 N.W.2d 811

383 Mich. 201, 75 L.R.R.M. (BNA) 2262,

64 Lab.Cas. P 52,405

The STATE BAR OF MICHIGAN, Plaintiff and Appellee, v. The BROTHERHOOD OF RAILROAD TRAINMEN, and all other members agents and officers of the Brotherhood of Railroad Trainmen of the State of Michigan Defendants and Appellants.

No. 43.

Supreme Court of Michigan.

March 9, 1970.

Kelly, Kelly & Kelly, by Phillip C. Kelly, Jackson, for plaintiff and appellee.

John J. Naughton, Chicago, Ill., for defendants and appellants; Nelson & Wilson, Detroit, of counsel.

Before the Entire Bench.

BLACK, Justice.

In January of 1964 this Court ordered that State Bar of Michigan v. Brotherhood of Railroad Trainmen, our Docket No. 50093, stand abeyant 'pending final determination, by the Supreme Court of the United States, of the case of Railroad Trainmen v. Virginia State Bar, Docket 34, certiorari granted (372 U.S. 905, 83 S.Ct. 719, 9 L.Ed.2d 715).' ¹ April 20, 1964 the Supreme Court decided the docketed cause thus brought up on certiorari. Brotherhood October 7, 1964 No. 50093 was resubmitted. January 4, 1965 we reversed and remanded the decree which in the Jackson circuit had been entered September 14, 1962, adding this:

of Railroad Trainmen v. Virginia ex rel. Virginia State Bar (1964), 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89. That court vacated the injunctive decree which had been entered and affirmed in Virginia, ² and 'remanded for proceedings not inconsistent with this opinion.'

'Since a public question of moment is involved, we remand with permission for amendment of plaintiff's bill to seek, if it be so advised, relief not inconsistent with the Supreme Court's said opinion.' (State Bar of Michigan v. Brotherhood of Railroad Trainmen, 374 Mich. 152, 155, 132 N.W.2d 78, 79).

The ensuing events of present concern appear in Brotherhood of Railroad Trainmen v. Commonwealth of Virginia ex rel. Virginia State Bar (1966), 207 Va. 182, 149 S.E.2d 265 (cert. den. Jan. 16, 1967, 385 U.S. 1027, 87 S.Ct. 754, 17 L.Ed.2d 675), and thereafter in the Jackson county circuit court upon remand as ordered. We take up these events in order. The Virginia Case and its history comes first.

Through its Commonwealth the Virginia State Bar sued the Brotherhood and others, in the Chancery Court of Richmond, Virginia, to enjoin the carrying on of a 'plan' of activity which, according to the Bar, constituted the solicitation of legal business and the unauthorized practice of law in Virginia. The suit was planted upon allegation that the Brotherhood's plan is that of advising its injured members and their families to obtain legal advice prior to making settlement of claims against their employers for injury or death; that the plan results in the channeling of legal employment to particular lawyers approved by the Brotherhood; that the Brotherhood maintains a Department of Legal Counsel for the purposes of the plan, and that the plan violates the laws of Virginia and the ethical codes of the legal profession.

The Chancery Court found that the activities of the Brotherhood pursuant to such plan consisted not only of illegal solicitation of law business but did result in 'channeling all, or substantially all' of the employee versus employer business to lawyers chosen by the Brotherhood's Department of Legal Counsel. Upon these and auxiliary findings the chancellor enjoined the complained of activities in Virginia.

The highest court of Virginia affirmed summarily as against the Brotherhood's appeal to the First and Fourteenth Amendments (see Brotherhood v. Commonwealth, Supra, at 812); whereupon the Supreme Court granted certiorari to consider the constitutional question 'in the light of our recent decision in NAACP v. Button (1963), 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405.' The plan of the Brotherhood thus enjoined was analyzed and, within the scope of the questions decided, approved by the Supreme Court in the cited decision of April 20, 1964. The Supreme Court said:

'The result of the plan, the Brotherhood admits, is to channel legal employment to the particular lawyers approved by the Brotherhood as legally and morally competent to handle injury claims for members and their families. It is the injunction against this particular practice which the Brotherhood, on behalf of its members, contends denies them rights guaranteed by the First and Fourteenth Amendments. We agree with this contention.' (377 U.S. p. 5, 84 S.Ct. p. 1116.)

Then the Supreme Court confronted the organized Bar Associations of the several States, and the subsequently objecting 'We hold that the First and Fourteenth Amendments protect the right of the members through their Brotherhood to maintain and carry out their plan for advising workers who are injured to obtain legal advice and for recommending specific lawyers. Since the part of the decree to which the Brotherhood objects infringes those rights, it cannot stand; and to the extent any other part of the decree forbids these activities it too must fall. And, of course, lawyers accepting employment under this constitutionally protected plan have a like protection which the State cannot abridge.' (p. 8, 84 S.Ct. p. 1118)

American Bar Association, with this specific ruling:

The appellee-respondent duly petitioned for rehearing. The American Bar Association moved for leave to file a brief Amicus in support of the petition for rehearing. The motion was granted June 1, 1964 and, on the same day, the petition for rehearing was denied. (377 U.S. 960, 84 S.Ct. 1625, 12 L.Ed.2d 505).

The proceedings on remand to Virginia appear at length in the cited 1966 decision of the Supreme Court of Appeals of Virginia. That court, seeking conformity with the Supreme Court's 1964 opinion, analyzed it with manifest care and, we add, with the deferential respect subordinates owe to their constitutional superiors. ³ Since the pleadings, factual record and judgment now here duplicate substantially the pleadings, factual record and now finally effective decree which in Virginia was entered on remand, we need but say that this court of another State must now determine whether that decree comports constitutionally with the aforesaid 1964 opinion. If it does, the Jackson circuit's decretal judgment of May 27, 1968 (now before us for review) should be affirmed. If not, that judgment should be reversed.

Now for the instant case. It was commenced January 28, 1959 in the Jackson circuit for injunctive relief against the same 'activities'--occurring as alleged in Michigan--which in Virginia were considered by the Virginia courts and then by the Supreme Court. Decree for the State Bar having entered September 14, 1962, the Brotherhood appealed. As seen above, that appeal resulted in reversal and remand for further proceedings not inconsistent with the Supreme Court's opinion of 1964 Brotherhood.

On remand the State Bar did not avail itself of the accorded right to amend. It waited instead for disposition on remand of the Virginia Case and then, setting forth the subsequent proceedings in the Virginia Case we have outlined, moved for entry of 'a judgment in this cause in conformity to said Final Order of the Chancery Court of the City of Richmond, Virginia, as aforesaid.'

Legal arguments followed, without additional proofs. The Brotherhood insisted and now insists that the Virginia decree does not conform with 1964 Brotherhood. The State Bar argued and argues here that the decretal judgment proposed by it and entered below May 27, 1968 conforms with the now-final Virginia decree. By-passing the Court of Appeals, we granted leave to review that judgment First: Our decision will be understood better by making initial reference to a question posed and answer made by counsel during oral argument. Our answer is that when the Supreme Court denied certiorari to review 1964 Brotherhood that act made no precedent. Neither did it import an 'expression of opinion upon the merits of the case, as the bar has been told many times' (Holmes, J., writing for the Court in United States v. Carver (1923), 260 U.S. 482, 490, 43 S.Ct. 181, 67 L.Ed. 361). As written separately by Mr. Justice Frankfurter, upon denial of certiorari in State of Maryland v. Baltimore Radio Show (1950), 338 U.S. 912, 917, 70 S.Ct. 252, 254, 94 L.Ed. 562:

September 12, 1968. The appeal was submitted December 9 last.

'A variety of considerations underlie denials of the writ, and as to the same petition different reasons may lead different Justices to the same result. This is especially true of petitions for review on writ of certiorari to a State court.'

This view, that no precedent results from denial of review, was written into our own jurisprudence as far back as 1935 (Malooly v. York Heating & Ventilating Corp., 270 Mich. 240, 247, 258 N.W. 622. There it remains. See Great Lakes Realty Corp. v. Peters (1953), 336 Mich. 325, 328, 329, 57 N.W.2d 901, comment in Williams v. City of Detroit (1961), 364 Mich. 231, 288, 111 N.W.2d 1, and our order denying leave to appeal, Frishett v. State Farm Mut. Automobile Ins. Co. (1966), 378 Mich. 733, 734).

We proceed accordingly to determine whether the present Virginia decree and therefore the duplicative decretal judgment entered by the Jackson circuit, ⁴ are consistent with 1964 Brotherhood. No reliance may be placed upon the fact that, in 1967, the Virginia State Bar's petition for writ of certiorari was denied (citation supra). The situation for us is the same as if the State Bar of Virginia had filed no petition.

It is right to begin by saying that the adjudicatory result in Michigan Ought to be the same as was reached finally in Virginia. Each suit as commenced, tried and reviewed has been purely equitable from the beginning. The subject matter of both is the extent to which the same planned activity of the Brotherhood comes within the constitutionally exercised jurisdiction of equity. It would reproach the tenet of equal justice under law...