State ex rel. Stephan v. Adam
| Decision Date | 24 August 1988 |
| Docket Number | No. 62443,62443 |
| Citation | 243 Kan. 619,760 P.2d 683 |
| Parties | STATE of Kansas, ex rel., Robert T. STEPHAN, Petitioner, v. Joan E. ADAM, Respondent. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A temporary permit to practice law is not a right of property, but is merely a "temporary permit" to do that which would otherwise be unlawful. A temporary permit is subject to revocation at any time and its revocation is not unconstitutional as an impairment of a contract right or as an unlawful divesting of property rights.
2. An individual issued a temporary permit to practice law has only a restricted right to represent clients.
3. The holder of a temporary permit to practice law has no contractual or property right to the permit, can be divested of the permit without being afforded constitutional procedural due process, and must be supervised by a member of the bar who is willing to be responsible for the acts of the holder of the temporary permit.
4. The holder of a temporary permit who successfully completes the bar examination becomes a member of the bar after that individual's name is placed on the roll of attorneys and the individual is issued a license to practice law.
5. If the name of a non-lawyer member of the Supreme Court Nominating Commission is placed on the roll of attorneys licensed to practice law in Kansas, then that individual will have the right to vote in the election of lawyer members to the Commission and the qualifications to stand for election to the Commission as a member of the bar, but no longer qualifies as a non-lawyer member of the Commission.
Robert T. Stephan, Atty. Gen., John W. Campbell, Deputy Atty. Gen., and Steve A. Schwarm, Asst. Atty. Gen., were on the brief, for petitioner.
Michael A. Barbara, Topeka, was on the brief, for respondent.
Robert C. Foulston, Chairman, Supreme Court Nominating Com'n, Wichita, was on the brief amicus curiae.
The State of Kansas through Attorney General Robert T. Stephan filed a petition in quo warranto claiming that the respondent, Joan E. Adam, should be ousted from the position of Non-Lawyer Member, Second Congressional District, Supreme Court Nominating Commission because she has been granted a temporary permit to practice law and is no longer qualified to hold the position of a non-lawyer member of the Commission.
In 1979, Respondent was appointed to a position on the Supreme Court Nominating Commission. She was reappointed in 1984 and her current term expires on July 1, 1989.
In January 1988, after successfully completing the requirements for a Juris Doctor degree at Washburn University School of Law, respondent requested the Supreme Court to grant her "a temporary permit to practice law." Subsequent to the respondent's taking the attorney's oath, the Supreme Court issued her a temporary permit to practice law in the State of Kansas.
It is the attorney general's position that, by the acquisition of a temporary permit, respondent assumed the status of a lawyer and, therefore, must be ousted from the Commission. The respondent (1) denies that quo warranto is a proper procedure to challenge her qualifications as a member of the Commission and (2) claims that once appointed to the Commission, she is qualified to serve her term as a non-lawyer member of the Commission, so long as she continues to reside in the Second Congressional District. We disagree with both the petitioner and the respondent.
Quo warranto proceedings are specifically allowed as original actions in the Supreme Court by both the constitutional and statutory law of this state. Kansas law is clear that the proper means by which a person is to be removed from a public office is the initiation of a quo warranto action. State, ex rel. Miller v. Richardson, 229 Kan. 234, 623 P.2d 1317 (1981). When the attorney general determines that any person appointed to a commission by the governor does not possess the requisite qualifications prescribed by law for the appointment, the statutory law requires the attorney general to commence ouster proceedings against that person. K.S.A. 75-714.
We agree with the attorney general's declaration that the Supreme Court Nominating Commission is an integral part of the process by which justices of the Kansas Supreme Court are selected and appointed. Individuals selected as justices become part of the court which is the final arbitrator of our state's constitution and laws. The selection and appointment process by which justices are chosen is a matter of statewide concern. Questions raised as to the legality of the composition of the Commission are of great public importance and deserve to be resolved with speed and finality. Since the Kansas Constitution provides the Supreme Court with the "general administrative authority over all courts in this state" (Kan. Const. Art. 3, § 1), the issues of this case go to the very heart of the administration of justice and the court system in Kansas.
The attorney general states that the sole issue is the definition of the constitutional and statutory qualifications of the members of the Commission. Since this court is charged by statute with making rules and setting standards for the admission of attorneys to the bar, we must determine the precise definition of the term "non-lawyer." (See K.S.A. 7-103 and Supreme Court Rule 701 et seq. [1987 Kan.Ct.R.Annot. 201-17]
In his memorandum in support of the petition in quo warranto, the attorney general correctly states the rules of constitutional interpretation:
State v. Sessions, 84 Kan. 856, Syl. p 1, 115 P. 641 (1911).
The attorney general's position is based on Moore v. Wesley, 125 Kan. 22, 25, 262 P. 1035 (1928), where this court stated:
"[A] person who holds a permit issued by this court authorizing him to practice law until the next bar examination is not irregularly admitted to practice law, but ad interim is a regularly qualified practicing attorney."
The attorney general argues that (1) after Adam took the attorney's oath she changed her status from a non-lawyer to a lawyer, and (2) allowing her to remain a member of the Commission violates the constitutional intent to balance membership of the Commission between lawyers and non-lawyers.
Article 3, Section 2 of the Kansas Constitution originally provided that the Supreme Court shall be composed of one chief justice and two associate justices elected by the electors of the state. In 1900, § 2 was amended to enlarge the court to seven justices, elected by the electors of the state. To remove the selection of the justices of the Kansas Supreme Court from partisan politics, the section was amended again in 1958, when the Supreme Court Nominating Commission was established. Article 3, Section 5(e) of the Kansas Constitution provides:
"The supreme court nominating commission shall be composed as follows: One member, who shall be chairman, chosen from among their number by the members of the bar who are residents of and are licensed in Kansas; one member from each congressional district chosen from among their number by the resident members of the bar in each such district; and one member, who is not a lawyer, from each congressional district, appointed by the governor from among the residents of each such district."
Article 3, Section 5(f) of the Kansas Constitution requires the legislature to fix the terms of, and to provide the procedure for selection and certification of, the members of the Commission. Although Article 3 is silent as to how vacancies are to be filled, Article 2, Section 18 of the Kansas Constitution requires the legislature to provide the method of filling all vacancies not otherwise provided for in the constitution.
As required by the constitution, the legislature passed implementing statutes for the Supreme Court Nominating Commission, which include K.S.A. 20-119 through 20-138. The relevant statutory provisions are K.S.A. 20-122, K.S.A. 20-124, and K.S.A. 20-127.
K.S.A. 20-122 provides in part:
"The clerk of the supreme court may use the roster of attorneys in his office licensed to practice law in Kansas, and the edition of the Martindale-Hubbell legal directory, current at the time of mailing the ballots, for ascertaining the names and places of residence of those entitled to receive ballots and for ascertaining the qualifications of those nominated for membership on the commission." (Emphasis added.)
Martindale-Hubbell is a national legal directory that lists individuals admitted to the practice of law in the United States and its territories. Individuals holding a temporary permit to practice law are not listed in that publication.
K.S.A. 20-124 provides in part:
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