State ex rel. Indiana State Bar Ass'n v. Moritz

• Decision Date: 10 June 1963
• Docket Number: No. 30351,30351
• Citation: 244 Ind. 156,191 N.E.2d 21
• Parties: STATE of Indiana on the relation of The INDIANA STATE BAR ASSOCIATION (A Corporation), Indianapolis, Indiana, Relator, v. Christopher D. MORITZ, Seymour, Indiana, Respondent.
• Court: Indiana Supreme Court

Page 21

191 N.E.2d 21

244 Ind. 156

STATE of Indiana on the relation of The INDIANA STATE BAR ASSOCIATION (A Corporation), Indianapolis, Indiana, Relator, v. Christopher D. MORITZ, Seymour, Indiana, Respondent.

No. 30351.

Supreme Court of Indiana.

June 10, 1963.

Rehearing Denied July 1, 1963.

Frederick R. Franklin, Indianapolis, for relator.

John R. Dollens, Scottsburg, Ruckelshaus, Bobbitt & O'Connor, Indianapolis, for respondent.

ARTERBURN, Judge.

This is an action for a permanent injunction brought by the Indiana State Bar Association against the respondent, Christopher D. Moritz, under Rule 3-26 of this court to restrain his practice of law as a prosecuting attorney. The defendant has filed a motion to dismiss, alleging that there is a failure to comply with Rules 3-26 and 2-35 of this court because certified copies were not filed with the petition, and further urging that this court has no jurisdiction over the proceedings. We find that there is no merit to the motion to dismiss, since it appears that all the material allegations made are matters of which we take judicial notice.

Briefly, the facts are that the respondent Moritz was elected prosecuring attorney of the Fortieth Judicial Circuit of Indiana on November 6, 1962; that as such official, he has attempted to appear as an attorney in the Jackson Circuit Court, representing the State of Indiana in criminal cases. (See: State of Indiana on the Relation of Christopher D. Moritz, Prosecuting Attorney of the Jackson Circuit Court v. Jackson Circuit Court, Opinion dated March 14, 1963, Ind., 188 N.E.2d 530.) The respondent Moritz was not, at the time of his election, and never has been a member of the bar of this state. Reading the response and briefs of the parties in this case, we find no questions of fact are in issue. Matters of which we take judicial notice need not be supported by certified copies of such official action.

12 I.L.E. Evidence § 1, p. 402.

The question of the jurisdiction of this court over the pending action is answered in the affirmative in a discussion of the merits of this case. We therefore overrule the motion to dismiss.

Coming now to the merits of this original action for injunction, we first note that the respondent Moritz has filed an answer under which he presents the issue and contention that although a person is not a member of the bar of this state and not an attorney-at-law, still, by reason of being elected prosecuting attorney in this state, he may represent the state as its attorney. Although this question is one of first impression in this state, insofar as we have been shown, it has been generally stated:

'As a general rule, under statutory and constitutional provisions, and even in the absence of specific requirements of statutes or constitutions, prosecuting attorneys must be attorneys at law entitled to practice.'

27 C.J.S. District & Pros. Attys. § 4c, p. 630.

Article 7, § 11 of the Indiana Constitution provides:

'There shall be elected in each judicial circuit by the voters thereof a prosecuting attorney, who shall hold his office for four years * * *.'

The framers of the Constitution used the words 'prosecuting attorney', not merely 'prosecutor'.

Ballentine's Law Dictionary, 2nd Ed., 1948 states:

The word (attorney) unless clearly indicated otherwise, is construed as meaning attorney at law.'

There can be no serious question raised in this case but that the prosecuting attorney's duties are concerned with representing the State of Indiana as an attorney at law, primarily in criminal matters, although there are many statutes requiring him to perform duties with reference to the practice of law in various fields, both civil and criminal. See, for example:

Burn's § 3-1212 (Duty to resist an undefended petition for divorce);

Burns' § 2-229 (Defense of state's interest in realty in suits to foreclose a mortgage on the realty);

Burns' § 3-2013 (Duty to recover escheated property);

Burns' § 28-312 (Duty to prosecute suits concerning state school funds);

Burns' § 23-120 (Duty to enforce the state anti-trust laws).

In People ex rel. Hughes v. May (1855), 3 Mich. 598, 607, it is said:

'No instance occurred, to my knowledge, in which, under that constitution any person was ever appointed to either of these offices who was not an attorney at law, and it would have been held an abuse of his office had any governor attempted any such thing. In addition to such popular, and it may be added executive understanding, we have that of the legislature also as to the import of these words. By the revised statutes of 1846, ch. 14, §§ 53, 60, the duties of this officer are prescribed; and among other things, he is required to appear and prosecute causes, whether civil or criminal, in which the state or county is a party, in all the courts of his county, and he is made the legal adviser of the county officers.'

In State ex rel. Neeriemer v. Daviess Circuit Court, etc. et al. (1957), 236 Ind. 624, 142 N.E.2d 626, we stated:

'As prosecuting attorney he is attorney for the people of his judicial circuit, charged with the prosecution of crimes committed against the state in that prescribed area.'

Under the statute (Burns' § 4-3605), the exclusive jurisdiction to admit attorneys to the practice of law in all courts of this state is stated to be in the Supreme Court. This is nothing more than a recital of the applicable constitutional law on the matter. We have under the Constitution, by virtue of the provision on separation of powers, the inherent jurisdiction to determine who are qualified as attorneys to practice law in this state. This is a judicial function, separate from that of either the executive or legislative departments.

Article 3, § 1 of the Constitution of Indiana reads as follows:

'The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.'

Article 7, § 1 also states:

'The judicial power of the State shall be vested in a Supreme Court, in Circuit Courts and such other courts as the General Assembly may establish.'

Rule 3-3 of this court provides that a roll of such qualified attorneys be maintained.

We must construe the Constitution so as to give effect to all of its parts if possible, among them being the inherent jurisdiction of the Supreme Court to control the operation of the judicial department of the government, including the fixing of qualifications for members of the bar who practice before the court. In doing so we are not adding a qualification to a constitutional office, but merely recognizing the necessary duties implicit in the term 'prosecuting attorney' as used in the Constitution and as comprehended in the duties of the office.

Although in this case we are narrowly concerned with merely the duties of the office of prosecuting attorney (the practice of law) and are not concerned here with the constitutional qualifications for holding that office, yet to justify our conclusions in this case, we note that in practically all the sister states where a question such as this has arisen, those jurisdictions have held that the prosecuting attorney must be a licensed member of the bar, competent to practice in that jurisdiction.

In People v. Munson (1925), 319 Ill. 596, 150 N.E. 280, the Supreme Court of Illinois held that a motion to quash a robbery indictment should be granted because the prosecuting attorney was not a member of the bar competent to practice law and, therefore, could not be a prosecuting attorney. In People ex rel. Hughes v. May (1855), 3 Mich. 598, 606, the Supreme Court of Michigan stated:

'That the natural and technical import of the words or title prosecuting attorney are identical, I shall not stop to argue at length; our common experience teaches us that they suggest to every person alike the idea of an attorney at law set apart to conduct the public business, whether of a civil or criminal nature--and perhaps primarily--that of a criminal character in the courts of law.'

In Danforth v. Egan (1909), 23 S.D. 43, 51, 119 N.W. 1021, 1024 it is said:

'We think the word 'attorney' in the name of the officer holding this office * * * forecloses all questions as to intent of the framers of the Constitution.'

Other jurisdictions in harmony with this interpretation are: People ex rel. Elliott v. Benefiel (1950), 405 Ill. 500, 91 N.E.2d 427; In re Opinion of Justices (1922), 240 Mass. 611, 135 N.E. 305; Snyder's Case (1930), 301 Pa. 276, 152 A. 33, 76 A.L.R. 666; Enge v. Cass (1914), 28 N.D. 219, 148 N.W. 607; Fallon v. State (1910), 8 Ga.App. 476, 69 S.E. 592; State v. Russell (1892), 83 Wis. 330, 53 N.W. 441. The only authority which we can find to the contrary is People ex rel. Galvin v. Dorsey (1867), 32 Cal. 296.

It is argued that this court cannot impeach a prosecuting attorney except as provided in the Constitution. This is not an impeachment proceeding. It is merely an adjudication that the respondent in this case was not qualified to perform the duties of an attorney, even though he received a majority vote of the electors of his judicial district. There is no impeachment or removal from such office involved in this case. Carson v. McPhetridge (1860), 15 Ind. 327; Gulick v. New (1860), 14 Ind. 93; Smith v. Moore (1883), 90 Ind. 294.

To accept the respondent's position would mean that the Supreme Court must abdicate its jurisdiction to determine who are qualified to practice law in this state. It would mean that to defendant a man in a criminal case one must be a qualified attorney, admitted to the bar, while to represent the State of Indiana and the public interest, one need not have any legal education whatsoever. Even a disbarred, disgraced, totally incompetent attorney would have the...