State ex rel. Fiedler v. Wisconsin Senate, 89-0773-OA

Citation454 N.W.2d 770,155 Wis.2d 94
Decision Date10 May 1990
Docket NumberNo. 89-0773-OA,89-0773-OA
Parties, 58 USLW 2733 STATE of Wisconsin ex rel. Hon. James P. FIEDLER, Circuit Judge, J. Denis Moran, Director of State Courts, and Richard J. Podell, Petitioners, v. The WISCONSIN SENATE, and its president, Senator Fred A. Risser, The Wisconsin Assembly, and its speaker, Representative Thomas A. Loftus, Hon. Donald Hanaway, Attorney General, Respondents.
CourtUnited States State Supreme Court of Wisconsin

Irvin B. Charne, argued and Thomas M. Williams and Charne, Glassner, Tehan, Clancy & Taitelman, S.C., on briefs, Milwaukee, for petitioners.

Stephen W. Kleinmaier, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., on brief, for respondents.

WILLIAM A. BABLITCH, Justice.

This is an original action challenging the constitutionality of sec. 757.48(1)(a), Stats., as amended by 1987 Wis.Act 355, which imposes a continuing legal education requirement on attorneys prior to their appointment as guardians ad litem. We conclude that sec. 757.48(1)(a), as amended, improperly intrudes on a regulation of the practice of law that is exclusively within the province of the judiciary. Accordingly, we hold the statute void as an unconstitutional violation of the separation of powers doctrine.

The facts are stipulated. On April 14, 1987, Assembly Amendment 1 to 1987 Assembly Bill 205 was offered in the legislature. The amendment included a provision that read: "In order to be appointed as a guardian ad litem under s. 767.045, an attorney shall have completed three hours of approved continuing legal education relating to the functions and duties of a guardian ad litem under ch. 767." After further amendments in the assembly and senate, the bill was passed by the legislature, signed by the governor, and published as 1987 Wis. Act 355 on May 2, 1988. The bill as enacted appears as sec. 757.48(1)(a), Stats.

Petitioners sought a declaratory ruling on the constitutionality of the enactment, and a petition for leave to commence an original action with a brief in support of the petition were filed with this court on April 21, 1989. On April 26, 1989, the court issued an administrative directive instructing the circuit judges of Wisconsin to refrain from implementing the continuing legal education requirements of sec. 757.48(1)(a), Stats. On the same date, the court ordered a response to the petition, which was filed on May 9, 1989. The respondents stated that they did not oppose the request that the court exercise original jurisdiction. By order of May 10, 1989, this court granted the petition for leave to commence the action.

The petitioners request a judgment declaring sec. 757.48(1)(a), Stats., as amended by 1987 Wisconsin Act 355, unconstitutional under the separation of powers doctrine. The petitioners further contend that the amendment to sec. 757.48(1)(a) is devoid of any standard for implementation and is therefore unconstitutionally vague. Both parties agree this is a proper case for declaratory relief. State ex rel. Lynch v. Conta, 71 Wis.2d 662, 239 N.W.2d 313 (1976).

We conclude that while the legislature may prescribe minimum standards for the eligibility of persons desiring to practice law, it is the province of the judiciary ultimately to decide the fitness of those who practice before it and to regulate their activities following their admission to practice. A concomitant of this authority is the power to decide whether special training for a particular area is appropriate. Because the amendment to sec. 757.48(1)(a), Stats., interferes with this authority, we hold it void under the separation of powers doctrine.

In State v. Holmes, 106 Wis.2d 31, 42, 315 N.W.2d 703 (1982), we discussed the separation of powers doctrine at great length. We stated:

The Wisconsin constitution creates three separate coordinate branches of government, no branch subordinate to the other, no branch to arrogate to itself control over the other except as is provided by the constitution, and no branch to exercise the power committed by the constitution to another. Id. at 42.

We recognized that although the three governmental branches are coordinate and separate, each deriving its power from the constitution, the constitution does not explicitly define legislative, executive, or judicial power. Id. Thus, it is neither possible nor practicable " 'to classify accurately all the various governmental powers and to say that this power belongs exclusively to one department and that power belongs exclusively to another.' " Id. at 42-43 (quoting Integration of Bar Case, 244 Wis. 8, 45, 11 N.W.2d 604 (1943)).

The separation of powers doctrine therefore does not require an absolute division of power without overlap. Rather, the doctrine envisions a government of separated branches sharing certain powers. Holmes, 106 Wis.2d at 43, 315 N.W.2d 703. Where the legislative and judicial powers overlap, the legislature's power to act in the area of shared authority is not unchecked. The legislature is prohibited from unreasonably burdening or substantially interfering with the judicial branch. State v. Unnamed Defendant, 150 Wis.2d 352, 360, 441 N.W.2d 696 (1989).

However, the separation of powers doctrine does not render every power conferred upon one branch of government a power which may be shared by another branch. There are zones of authority constitutionally established for each branch of government upon which any other branch of government is prohibited from intruding. As to these areas of authority, the unreasonable burden or substantial interference test does not apply: any exercise of authority by another branch of government is unconstitutional. In Matter of Complaint Against Grady, 118 Wis.2d 762, 776, 348 N.W.2d 559 (1984). 1 The respondents correctly assert that the judiciary and the legislature share authority to prescribe qualifications for admission to the practice of law. The judiciary is concerned with the qualifications of attorneys in the exercise of its inherent power to regulate the bar. See Holmes, 106 Wis.2d at 45, 315 N.W.2d 703, and cases cited at n. 11. The legislature is concerned with the qualifications of attorneys pursuant to its power to promote the general welfare. As we stated in In re Cannon, 206 Wis. 374, 396, 240 N.W. 441 (1932):

We think the separation of sovereign power by which the constitution assigns the legislative power to the legislature and the judicial power to the courts, with the purpose of making each department supreme and independent in its respective field, accords to the legislature the power of exacting of those who shall be admitted to the practice of the law such qualifications as the legislature shall deem sufficient to protect the public from the evils and mischiefs resulting from incompetent and characterless attorneys, which qualifications so prescribed must be respected by the courts. The courts cannot and should not license any as attorneys at law who do not possess the qualifications deemed by the legislature necessary for the protection of the public interest.

This language establishes that the legislature may prescribe minimum qualifications for persons desiring to be admitted to practice law in the state as an incident to its general power to protect the public. Once admitted, however, it does not follow that the legislature shares with the judiciary the authority to establish minimum qualifications in specific areas of law.

To the contrary, we made it clear in the subsequent case of State ex rel. Reynolds v. Dinger, 14 Wis.2d 193, 206, 109 N.W.2d 685 (1961), that no rule or practice, however venerable, would preempt the exclusive authority of the judicial branch to define and regulate the activities of those who have been admitted. We stated:

[T]he regulation of the practice of the law is a judicial power and is vested exclusively in the supreme court; that the practitioner in or out of court, licensed lawyer or layman, is subject to such regulation; that whenever the court's view of the public interest requires it, the court has the power to make appropriate regulations concerning the practice of law in the interest of the administration of justice, and to modify or declare void any such rule, law, or regulation by whomever promulgated, which appears to the court to interfere with the court's control of such practice for such ends.

Furthermore, the competence of an attorney to represent a client in a particular area is at present governed by SCR 20:1.1, which requires competent representation through application of the legal knowledge, skill, thoroughness, and preparation necessary for the representation. To the extent an attorney fails to meet the level of competence necessary for effective representation, the attorney is subjected to an action for legal malpractice, and to disciplinary action undertaken pursuant to the judiciary's inherent authority to discipline members of the bar. See Rubin v. State, 194 Wis. 207, 214-15, 216 N.W. 513 (1927).

The issue of an attorney's competence to practice in a particular area is therefore currently left to the attorney's professional judgment bounded solely by the judiciary's inherent power to regulate the bar. This court has never in the past authorized the legislature to adopt rules or enact legislation attempting to establish a threshold level of competency to practice in a particular area. In fact, this court has specifically prohibited attorneys from holding themselves out as having special expertise in a particular field of law. See SCR 20:7.4.

We therefore conclude that once an attorney has been determined to have met the legislative and judicial threshold requirements and is admitted to practice law, he or she is subject to the judiciary's inherent and exclusive authority to regulate the practice of law. A necessary attribute of the court's regulatory authority is the power to determine the quantum of competence necessary to perform...

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