State ex rel. NSBA v. Krepela

• Decision Date: 05 May 2000
• Docket Number: No. S-99-430.,S-99-430.
• Citation: 259 Neb. 395,610 N.W.2d 1
• Parties: STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, relator, v. Richard W. KREPELA, respondent.
• Court: Nebraska Supreme Court

610 N.W.2d 1

259 Neb. 395

STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, relator, v. Richard W. KREPELA, respondent.

No. S-99-430.

Supreme Court of Nebraska.

May 5, 2000.

John W. Steele, Lincoln, Assistant Counsel for Discipline, for relator.

Clarence E. Mock and Michael J. Tasset, of Johnson and Mock, Oakland, for respondent.

WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

PER CURIAM.

NATURE OF CASE

This is an original action initiated by the Counsel for Discipline of the Nebraska State Bar Association (Bar Association) seeking discipline of Richard W. Krepela, a sitting county court judge, for conduct which occurred prior to the time that Krepela took office as a judge.

STANDARD OF REVIEW

Jurisdictional questions can be raised by the Nebraska Supreme Court sua sponte. See Ryan v. Ryan, 257 Neb. 682, 600 N.W.2d 739 (1999).

Subject matter jurisdiction is the power of a tribunal to hear and determine a case of the general class or category to which the proceedings in question belong and to deal with the general subject matter involved. Greenwalt v. Wal-Mart Stores, 253 Neb. 32, 567 N.W.2d 560 (1997).

FACTS

Krepela was admitted to the practice of law in the State of Nebraska on January 26, 1976, and subsequently was elected county attorney for Madison County, Nebraska. In December 1989, Krepela was appointed to the office of county court judge for the Seventh Judicial District, and he presently occupies that position.

In 1999, the Counsel for Discipline filed charges against Krepela, claiming that he had engaged in conduct which violated the Code of Professional Responsibility while he held the position of Madison County Attorney. On September 3, 1999, the Honorable William D. Blue, the referee appointed in this matter, heard evidence on the charges. On September 17, the referee issued a report, finding by clear and convincing evidence that Krepela had violated Canon 1, DR 1-102(A)(1) and (4) through (6), and Canon 7, DR 7-102(A)(3) through (8), and recommending that Krepela be censured and reprimanded.

EXCEPTIONS

The Bar Association takes exception to the recommended sanction of censure and public reprimand, arguing that the gravity of Krepela's actions requires a more severe sanction. Krepela takes exception to one of the referee's findings.

ANALYSIS

We first address whether the Counsel for Discipline has jurisdiction to file formal charges against a sitting member of the judiciary for acts committed prior to that person's becoming a judge. Jurisdictional questions can be raised by this court sua sponte. See Ryan v. Ryan, supra.

The Nebraska Supreme Court governs the admission of lawyers to the practice of law and their professional conduct; it is vested with the inherent power and authority to discipline lawyers, including the powers to disbar, suspend, and/or censure, as the nature and circumstances of the case warrant. See In re Integration of Nebraska State Bar Ass'n, 133 Neb. 283, 275 N.W. 265 (1937). In order to regulate lawyers, the Supreme Court created the Bar Association in 1937 and set forth the Rules Creating, Controlling, and Regulating Nebraska State Bar Association. See In re Integration of Nebraska State Bar Ass'n, supra.

Article III of the Rules Creating, Controlling, and Regulating Nebraska State Bar Association explains that the membership of the Bar Association includes all those who are admitted to practice law in Nebraska. The membership is currently divided into four classes: active members, inactive members, law student members, and emeritus members. Id. Neb. Ct. R. of Discipline 1(A) (rev.1996) states that "[e]very attorney admitted to practice in the State of Nebraska is subject to the exclusive disciplinary jurisdiction of the Court." Since the Bar Association is the organization created by this court to regulate members of the bar, all complaints concerning alleged violations of the Code of Professional Responsibility are processed through disciplinary committees and the Counsel for Discipline. See State v. Douglas, 217 Neb. 199, 349 N.W.2d 870 (1984).

A separate framework has been created for disciplining members of the judiciary. There are two methods by which a sitting judge may be disciplined. The first method is via impeachment. Neb. Const. art. III, § 17, grants the Legislature impeachment powers, and Neb. Const. art. IV, § 5, states that "[a]ll civil officers of this state shall be liable to impeachment for any misdemeanor in office." Members of the judiciary are considered civil officers and thus may be removed from office by impeachment. Conroy v. Hallowell, 94 Neb. 794, 144 N.W. 895 (1913). In Conroy, the court first recognized that the office of county judge is a constitutional office. At that time, the only method of removing a county judge from office was by impeachment. Id. Pursuant to article III, § 17, the act or omission for which a civil officer may be impeached and removed from office must relate to the duties of the office. State v. Douglas, supra.

The second method for disciplining a member of the judiciary is via the Commission on Judicial Qualifications (Commission). See Neb. Const. art. V, § 30. Article V, § 30, and its enabling legislation, Neb.Rev.Stat. § 24-715 et seq. (Reissue 1995), explain that a justice or judge of any court of the state may be reprimanded, disciplined, censured, or suspended without pay for a definite period of time not to exceed 6 months or removed from office for (1) willful misconduct in office, (2) willful disregard of or failure to perform his or her duties, (3) habitual intemperance, (4) conviction of a crime involving moral turpitude, (5) disbarment as a member of the legal profession licensed to practice law in the State of Nebraska, or (6) conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

Additionally, on recommendation of the Commission or on its own motion, the Supreme Court shall remove a justice or judge when in any court of the United States such justice or judge pleads guilty or no contest to a felony or has been found guilty of a crime punishable as a felony or any other crime that involves moral turpitude. Neb. Const. art. V, § 30(4). Any citizen in the State of Nebraska may bring a complaint before the Commission with reference to the activities or qualifications of any justice or judge to request that the Commission consider the qualifications of any justice or judge of any of the courts of the State of Nebraska. Neb. Const. art. V, § 30(1).

Thus, the issue presented is whether the Counsel for Discipline may initiate charges against a sitting member of the judiciary. The issue is not whether a sitting judge may be disciplined, but who has the authority to bring disciplinary proceedings against a judge.

The Constitution and statutes treat judges and lawyers differently. In Chambers v. Central Committee of Oklahoma Bar Ass'n, 203 Okla. 583, 224 P.2d 583 (1950), the respondent was a sitting judge who claimed that the Oklahoma Bar Association did not have authority to take disciplinary action against him. The bar association argued that it had authority to proceed against any Oklahoma judge if it deemed that such judge was guilty of misconduct on the bench. The Oklahoma Supreme Court disagreed, reasoning that the bar association's position overlooked the fact that one who assumes the bench is no longer an attorney at law and is precluded from practicing law so long as he or she holds the judicial position.

In In re Proposed Disciplinary Action, 103 So.2d 632 (Fla.1958), the Florida Supreme Court stated that since the assumption of judicial duties suspends all rights and privileges to engage in the practice of law, becoming a judge should also operate as a suspension of disciplinary procedures designed simply to ensure that such rights and privileges shall not be exercised by one who is unfit to practice law.

Neb.Rev.Stat. § 7-111 (Reissue 1997) states in part:

No person shall be permitted to practice as an attorney in any of the courts of this state while holding the office of judge of the Supreme Court, Clerk of the Supreme Court, judge of the Court of Appeals, judge of the district court, judge of the Nebraska Workers' Compensation Court, or judge of the county court.

Neb. Const. art. V, § 14, provides in part that "[n]o judge of the Supreme or district courts shall act as attorney or counsellor at law in any manner whatsoever." Since the Counsel for Discipline has authority to discipline only practicing attorneys, and judges are prohibited from practicing law once they assume office, we conclude that the Counsel for Discipline may not initiate the discipline of a sitting judge.

Furthermore, the Nebraska Constitution has set forth the procedures for disciplining judges, and such procedures should be followed. In In re Proposed Disciplinary Action, supra,

the petitioner, a circuit judge, sought an order directing the Florida bar to cease and desist from taking disciplinary action against him and declaring that the bar was without jurisdiction to apply or enforce disciplinary provisions against a judge. The Florida bar claimed that it had jurisdiction because the disciplinary matter related solely to alleged acts which occurred prior to the petitioner becoming a judge. The Florida Supreme Court stated that "the action undertaken by the Bar has no legitimate objective other than the ultimate removal of petitioner from office, a result intended under our Constitution to be accomplished only by impeachment." Id. at 633. Because the conduct which the Florida bar attacked was not serious enough to warrant impeachment, the court concluded that subjecting an incumbent judge to the jurisdiction of the bar would accomplish indirectly what could not be accomplished directly.

In In re Bar Association, 137 Colo. 357, 325 P.2d 932 (1958), the bar association filed a petition asking the Colorado Supreme Court to explain its powers....