State ex rel. State Bar of Wis. v. Keller

• Decision Date: 01 May 1962
• Citation: 114 N.W.2d 796,16 Wis.2d 377
• Parties: STATE ex rel. STATE BAR OF WISCONSIN, an association, Appellant, v. John J. KELLER, Respondent.
• Court: Wisconsin Supreme Court

Page 796

114 N.W.2d 796

16 Wis.2d 377

STATE ex rel. STATE BAR OF WISCONSIN, an association, Appellant, v. John J. KELLER, Respondent.

Supreme Court of Wisconsin.

May 1, 1962.

The appellant attorney general, acting on relation of the State Bar of Wisconsin, an association, began a quo warranto action against respondent in circuit court for Winnebago county, alleging that respondent, a layman, had usurped and was continuing to usurp the franchise of practicing law. Respondent answered on the merits and appellant demurred to the answer. Respondent then moved for summary judgment dismissing the complaint. By an order dated September 19, 1961, the circuit court dismissed this action upon the ground that such court has no jurisdiction over the subject matter.

The appellant submits that the circuit court had jurisdiction over the subject matter and should have tried the case on the merits, but regardless of where jurisdiction lies, the supreme court should now decide the case on the merits.

Further facts are stated in the opinion.

John W. Reynolds, Atty. Gen., Warren H. Resh, Asst. Atty. Gen., John B. McCarthy, Madison, for appellant.

James E. Quackenbush, Frank M. Coyne, Madison, for respondent.

BROWN, Justice.

Relator's complaint alleges that John J. Keller, respondent herein, a person not licensed to practice law in Wisconsin, performs numerous described services for others which constitute the practice of law. The complaint demands judgment adjudging that Keller has unlawfully usurped the privilege of practicing law and requiring him to cease and desist from such illegal practices. Keller answered to the merits. Neither party questioned the jurisdiction of the circuit court and each party submits that that court erred in deciding it was without jurisdiction.

It was the trial judge himself who questioned his court's jurisdiction over the subject matter. He based his determination on the decisions of Lathrop v. Donohue (1960), 10 Wis.2d 230, 102 N.W.2d 404, and State ex rel. W. Reynolds Attorney General v. Dinger (1961), 14 Wis.2d 193, 109 N.W.2d 685, and language appearing in the opinions in those cases.

The circuit court's quo warranto jurisdiction is derived from sec. 8, art. VII, of the Wisconsin constitution:

'Circuit court, jurisdiction. Section 8. The circuit courts shall have original jurisdiction in all matters civil and criminal within this state, not excepted in this constitution, and not hereafter prohibited by law; and appellate jurisdiction from all inferior courts and tribunals, and a supervisory control over the same. They shall also have the power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and all other writs necessary to carry into effect their orders, judgments and decrees, and give them a general control over inferior courts and jurisdictions.'

It is evident that we misled the learned trial court, particularly by the statement in the opinion in Dinger, supra, at page 206 of 14 Wis.2d, at page 685 of 109 N.W.2d, wherein we said that the regulation of the practice of law is a judicial power vested 'exclusively' in the supreme court. At the moment we were contrasting conflicting claims of power by the legislative and judicial branches of the state government to regulate the practice of law. Holding, as we did, that the regulation of the practice of the law is a judicial power vested in the courts by the state constitution, the exercise of the power must ultimately lie in the supreme court. When the point of ultimate decision is reached the supreme court's power is and must be exclusive. Meanwhile, pending the supreme court's exercise of the power of regulation applicable to the facts of a given case, the power exists as a general judicial power to be shared by the courts subordinate to the supreme court. In the Lathrop Case, supra, the supreme court had made a regulatory order applicable to all members of the Wisconsin bar. The trial court there correctly held that it had no jurisdiction enabling it to pass upon the validity of the supreme court's order. Neither Lathrop nor Dinger, supra, deprives circuit courts of jurisdiction over attempts of individuals to practice law who have not been admitted to such practice under the rules of the supreme court.

We regret that unintentionally we caused the learned trial court to conclude that the circuit courts lacked jurisdiction in such matters as are presently in question. Our language, particularly in the Dinger opinion, induced his error but as error we must reverse his order dismissing the complaint.

What ought to be done now is the next question. In his written decision the trial court stated that 'There are no controverted issues of fact. A determination of the issues * * * involves purely a determination of issues of law.' Respondent insists that the supreme court remand the cause for trial and decision by the circuit court, otherwise respondent is denied due process. However, respondent moved for summary judgment in circuit court. (Sec. 270.635, Stats.) The motion and respondent counsel's supporting affidavit alleges that counsel believes appellant's action has no merit. Counsel, being the able and learned lawyer which we know him to be, of course recognizes that summary judgment is granted only when there are no substantial issues of fact to be tried. Prime Mfg. Co. v. A. F. Gallun & Sons Corp. (1938), 229 Wis. 348, 281 N.W. 697; Batson v. Nichols (1951), 258 Wis. 356, 46 N.W.2d 192. Entry of summary judgment is proper where issues are legal rather than factual. Phillips Petroleum Co. v. Taggart (1955), 271 Wis. 261, 73 N.W.2d 482.

We have studied the pleadings and affidavits and reach the same conclusion that impelled respondent's counsel to conclude that the case is one proper and suitable for summary judgment, i. e., that the only issues here are legal.

Providing for summary judgments, sec. 270.635(3), Stats., states:

'Upon motion by a defendant, [for a summary judgment] if it shall appear to the court that the plaintiff is entitled to a summary judgment, it may be awarded to him even though he has not moved therefor.'

Respondent, the defendant, previously moved in this court that the appeal be dismissed because the parties agreed that the circuit court had jurisdiction and the cause should be remanded for trial. We denied the motion saying:

'The motion to dismiss appeal is denied and the motion to strike a portion of the plaintiff's brief is denied, it appearing that upon plaintiff's appeal this court has jurisdiction to review the refusal of the Circuit Court to sustain plaintiff's demurrer to the answer and would, under Section 274.12(2) Stats., have jurisdiction to review the failure of the Circuit Court to grant defendant's motion for summary judgment.'

We remain of the same mind. The trial court and both parties assure us that there are no substantial issues of fact to be resolved by trial. The appeal has brought up the whole record. Only issues of law are presented. We consider that we may properly examine and determine the legal issues and to render such judgment as may be consistent with the determination.

'While, as a general rule, this court may and does refuse to consider and dispose of questions not properly or timely presented for consideration of the trial court, as has been stated in a number of cases, among others, [cases cited], yet as stated in Dupont v. Jonet, 165 Wis. 554, 558, 162 N.W. 664, and in Cappon v. O'Day, 165 Wis. 486, 162 N.W. 655, 1 A.L.R. 1657, it unquestionably has the power to and may consider the entire record and dispose of questions of law clearly presented on the record, * * *.' Braasch v. Bonde (1926), 191 Wis. 414, 418, 211 N.W. 281, 282.

'* * * The general rule is that this court will not consider an assignment of error which is presented in this court for the first time but the court has the unquestioned power to consider the entire record and to dispose of questions of law clearly presented therein. Braasch v. Bonde, 1926, 191 Wis. 414, 211 N.W. 281. Whether or not it will do so depends upon the circumstances of the case. * * *' Estate of Zeimet (1951), 259 Wis. 619, 622-623, 49 N.W.2d 924, 927.

'* * * Whether this court should review a question raised here for the first time depends upon the facts and circumstances disclosed by the particular record. It undoubtedly has the power, but ordinarily will not exercise it. The question is one of administration, not of power. * * *' Cappon v. O'Day (1917), 165 Wis. 486, 491, 162 N.W. 655, 657.

This statement in Cappon by Mr. Justice Rosenberry, speaking for the court, applies equally well to the present situation where the questions were raised by the pleadings but where the trial judge had refrained from passing upon them. We consider that we may determine the case on the merits and our doing so does not infringe respondent's right to due process of law.

Thus we address ourselves to the merits as a question of law raised by undisputed facts. The issue is whether the admitted activities of respondent, as listed in the complaint, constitute the practice of law. Summarized, these activities, which respondent proposes to continue, are: Respondent, admittedly not a member of the Wisconsin bar, has engaged in considerable activity before the Wisconsin Public Service Commission for the past seven years. He has made applications to the P. S. C. in behalf of his clients for authority to conduct trucking operations, handled proceedings on behalf of truckers with respect to such applications, appeared before the P.S.C. on behalf of various truckers and in opposition to the granting of permits to other truckers. In the course of these proceedings respondent has examined witnesses and taken such steps as necessary to make a record upon which formal action may be taken by the commission adjudicating the rights of the parties.

Respondent's answer pleads further facts: he is a licensed practitioner...