Tweedy v. Oklahoma Bar Ass'n, 55565

• Citation: 1981 OK 12,624 P.2d 1049
• Decision Date: 10 February 1981
• Docket Number: No. 55565,55565
• Parties: Craig TWEEDY, Plaintiff, v. OKLAHOMA BAR ASSOCIATION, its Officers and Board of Governors, Defendants.
• Court: Supreme Court of Oklahoma

Page 1049

624 P.2d 1049

1981 OK 12

Craig TWEEDY, Plaintiff, v. OKLAHOMA BAR ASSOCIATION, its Officers and Board of

Governors, Defendants.

No. 55565.

Supreme Court of Oklahoma.

Feb. 10, 1981.

PETITION DENIED.

Craig Tweedy, pro se.

Annis M. Kernan, Oklahoma City, for defendants.

OPALA, Justice:

The single first-impression issue here is whether the Supreme Court the state government's organ acting in both the legislative and adjudicative capacity when exercising its constitutionally-derived responsibility for the control and regulation of the practice of law and for the licensing and We hold that the exercise of power sought to be invoked to command a second re-investigation of the grievance is inconsistent with this court's constitutionally-mandated duty to act as the state's sole and final tribunal for adjudication of disciplinary bar charges.

ethics of legal practitioners may cast itself in the added role of the bar discipline's ultimate enforcer by commanding the prosecutorial arm of the state bar agency (the Professional Responsibility Commission of the Oklahoma Bar Association) to conduct a second re-investigation of a grievance alleging a lawyer's breach of professional conduct.

Plaintiff (Tweedy) lodged with the state bar agency a disciplinary grievance against three legal practitioners. ¹ Upon two separate investigations, the Professional Responsibility Commission (Commission) found the grievance unripe for the institution of formal disciplinary charges. ² The decision was doubtless influenced by the pendency of certain civil litigation in which the subject matter of the alleged professional misconduct was in the process of adjudication. Tweedy, a licensed Oklahoma lawyer, seeks here an order (a) commanding a second re-investigation of his grievance and (b) establishing a bar agency's committee to study the Commission's needs for a larger staff of lawyers, a bigger budget and for better investigative procedures and resources.

I.

DUE PROCESS LIMITS UPON A JUDICIAL TRIBUNAL'S EXERCISE OF

PROSECUTORIALFUNCTIONS

The Supreme Court claims for itself the constitutionally-invested power to control and regulate, in this State, the practice of law and the licensing, ethics and discipline of legal practitioners. The state bar agency with its constituent body, the Board of Bar Examiners functions as an organ of the Supreme Court aiding it in the performance of the judiciary's mandated mission of our fundamental law. ³ The bar's government much like the licensing and professional responsibility of legal practitioners is structured by rules. All of these rules ⁴ are promulgated by this court in the exercise of a legislative function as the bar's regulator. ⁵ The essential characteristics of the court's responsibility as a regulator are to be distinguished from those which attend an exercise of its jurisdiction as the sole and final arbiter of the practitioner's standing and status before Oklahoma courts. In the latter capacity this court functions, not as a legislator but rather qua adjudicator. ⁶

Within an administrative agency the merger of investigative and enforcement responsibility with that of adjudication is not forbidden as a violation of due process if in the broader institutional framework safeguards do exist against unchecked administrative discretion and its In contrast to the principles which affect administrative agencies, due process is offended when a judicial institution functions both as an organ of enforcement and adjudication. Concentrating the powers of judge and prosecutor in the same person or body poses an unreasonably high risk of compromising the protected and cherished value of judicial detachment and neutrality. ⁸

abuse. The union of these functions is constitutionally countenanced so long as provisions do exist for the legislature to change the agency's rules and the judiciary is free effectively to correct errors occurring in administrative adjudication. ⁷

II. SEPARATION OF POWERS AND DUE PROCESS CONSIDERATIONS

While our state constitution expressly institutes a tripartite division of government responsibilities, ⁹ it does not categorically forbid one department to exercise as a mere incident of its general mission powers which, while not expressly delegated to another, might have been more appropriately reposed elsewhere. The legislature initiates and holds impeachment trials, agencies of the executive service administer adjudicative process and courts legislate interstitially by fashioning and promulgating rules of procedure to give but some examples of a permissible merger of powers. Each of the three divisions of our government state and federal does, on occasion, execute powers of the general kind that belong primarily to one of the other two departments. If these functions are not, by express constitutional delegation, set apart to another division of government and so long as they can be compatibly combined in one institution, they are held to remain within the sphere Even though the federal constitution unlike our own does not explicitly enjoin a division of responsibilities among the three branches, ¹⁰ neither does it expressly authorize their merger. Combining incompatible functions in one agency, or allowing one division to usurp powers expressly delegated to another, is generally deemed offensive to constitutional order, whether the separation-of-powers doctrine is explicitly mandated by the text (of the document) or is merely recognized as implicit in its provisions. ¹¹

permitted by fundamental law. The very same rule seems to be applied by the federal judiciary.

Legislative, as distinguished from executive, power is the authority to make law, but not to execute it or to appoint agents charged with the duty of enforcement. The latter is purely an executive function. ¹²

In Oklahoma, the responsibility for legislation, prosecution and adjudication in the arena of professional discipline of legal practitioners is constitutionally reposed in the judicial department. ¹³ While legislative and adjudicative functions are performed by this court, the enforcement role stands delegated to the organs of the state bar. A decision to, or not to, re-investigate a complaint and one to, or not to, charge are akin to each other. They result from the same reasoning process. Both exemplify an exercise of prosecutorial judgment that precedes courtroom presentation and judicial testing of evidence. The process employed in reaching both decisions calls for comparative weighing of proof at hand, and other likely to be obtainable, against that which is required to support a legally cognizable charge. Every decision in which that kind of discretionary assessment of proof has to be made before While as a legislator in the arena of bar ethics and discipline, this court can and does fashion, by rules, the necessary prosecutorial machinery, it cannot itself exercise enforcement powers for, or on behalf of, the instrumentality it has created. Once an institutional design for the discharge of prosecutorial function has been structured, this court can no longer cast itself in the dual role of judge and enforcer to command or control, directly or obliquely, the institution of bar charges. An exercise of both functions would be inconsistent with this court's constitutionally-mandated responsibility for adjudication of bar disciplinary proceedings. ¹⁵

charges are brought must remain free of the Supreme Court's control lest due process be contravened. ¹⁴

Neither party disputes that under Art. 10 § 3 ¹⁶ the state bar's Board of Governors (Board) may re-examine the actions of the Commission. So far as the record before us shows, Tweedy has never invoked the Board's reviewing power. We must therefore conclude that his non-judicial remedies have not been exhausted.

CONCLUSION

We do not reach here Tweedy's request that a larger staff and budget be allotted to the Commission. That issue is not justiciable in this proceeding. It should first be presented to the Board of Governors. In case of a negative disposition, the problem could reach us later as a fit subject for our managerial concern dehors the adversarial framework of litigation process.

Petition is denied because the power sought to be invoked may not be exercised consistently with the minimum standards of due process and compatibly with this court's constitutional responsibility for the administration of the disciplinary bar jurisdiction. ¹⁷

IRWIN, C. J., and WILLIAMS, LAVENDER and HARGRAVE, JJ., concur.

SIMMS, J., concurs in part and dissents in part.

BARNES, V. C. J., and HODGES, J., not participating.

1 Art. 10 § 2, Rules Creating and Controlling the State Bar Association, 5 O.S.Supp.1980, Ch. 1, App. 1.

2 The terms of Art. 10 § 2(a), supra note 1, provide that upon consideration of the recommendation of the General Counsel, the Commission may: "(a) direct that no formal disciplinary proceedings be commenced and that General Counsel advise complainant the factual circumstances do not warrant further investigation or disciplinary action."

3 In re Integration of State Bar of Oklahoma, 185 Okl. 505, 95 P.2d 113 (1939); Ford v. Board of Tax-Roll Corrections, Okl., 431 P.2d 423 (1967).

4 Code of Professional Responsibility, 5 O.S.1971, Ch. 1, App. 3; Code of Judicial Conduct, 5 O.S.Supp.1980, Ch. 1, App. 4; Rules Governing Admission to Practice of Law in the State of Oklahoma, 5 O.S.Supp.1980, Ch. 1, App. 5; and Rules Creating and Controlling the State Bar Association, supra note 1.

5 Lathrop v. Donohue, 367 U.S. 820, 825, 81 S.Ct. 1826, 1828, 6 L.Ed.2d 1191, 1195 (1961); Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 100 S.Ct. 1967, 1974, 64 L.Ed.2d 641, 653 (1980); State ex rel. Oklahoma Bar Association v. Denton, Okl., 598 P.2d 663, 665-666 (1979) (Opala, J., dissenting).

6 Supreme Court of Virginia v. Consumers Union of the United States, supra note 5; In re Summers, 325 U.S. 561, 566-567, 65...