*1 BAR ASSOCIA- TENNESSEE Petition of requiring annual an order
TION attorneys practicing all fee of
license purpose.
disciplinary FOR LAWYERS of CERTAIN OF the
ORGANIZATION BAR.
STATE 1, 1976.
June
FONES, Justice.
OPINION AND ORDER OVERRULING MOTIONS AND PETITION OF Al Bar Davis, Jr., ger, McDonald, Leon W. U. L. Parker, M. Joe Richard Winningham. H. Petitioners, The above named hereinafter al, referred to as com- plaint against Court of Ten- nessee in the Court of Hamilton County seeking a declaring decree void a promulgated on De- 18, cember 1975. Court of Tennessee re-
sponded by filing both in the cause in the in this Court and County Opinion Hamilton an and Order also, Tenn., See 810. 539 S.W.2d Therein, 1976. dated March the Su- the relevant preme Court documented ceedings transpired that had from the ini- Association, Tennessee Bar tiation voluntary organization lawyers, of an original Petition to amend Rule estab- counsel, investigative lish an office of impose an annual license fee on office, support May filed on said and Order of the Tennessee released on December the March 1976 Order it 1975. In the inferior Courts of was observed entertain suit or not challenging validity action of Tennessee and that such a is unknown to *2 short, any it was held that the trial and it follows law. other trial court in the jurisdiction this have no courts of State System, jurisdiction State Court over Supreme the of as a Tennessee, over Court the of a Supreme party Court as litigant, subject jur- does matter party jurisdiction the subject defendant and of examining exist for purpose isdiction the matter of the Decrees Orders and Opin- propriety the and correctness the Supreme purpose the review- Supreme Decrees ions and ing voiding and same. A Chancery, search of in Gibson’s Suits 30,1976, The and Order March the statutes and case of this State and law effect, by noting, in that the concluded any our does sister states not reveal author- in Ten- proceedings Supreme the ity jurisdiction whatsoever such promulgated nessee wherein Rule 42 was by none or Bar- is advanced the Chancellor are still and that Petitions ger, premise simply indulged The et al. is amend, modify any or vacate 42 or jurisdiction that the Court has Rule of other the party over a the Court as defend- further, time; at that the Com- ant jurisdiction validity to consider Barger, et al would be transferred plaint propriety Opinions Decrees as a to this Court and treated higher It would necessarily
Vacate or Rule 42. Modify follow the trial this that courts of jurisdiction have would over subsequent The actions Learned Appeals and the Appeals Court of Criminal Court of Hamil- Chancellor review, reverse and void the final De- II, County, Barger, Part ton et al clear- crees of the appellate courts. intermediate comprehend that ly they indicate do not unwilling that are import of Order and al, provision Barger, ignoring plain et by it. abide of the order of March that only argued issue to be briefed and was the a learned Chancellor filed Memoran- constitutionality of Rule have filed sev- April noting dum and Order dated eral recuse motions. motion to thereof that the suit paragraph in the first at the bar on May overruled of the Court al et was by 1976. The motion to strike Petition and He then turns to the of Tennessee. Farrell, Jr., Brief of Louis is denied. Bar- observing that Rules of Civil Procedure al, ger, represent themselves as lawyers explicit exempting no they contain solemnly “who have and properly attempt- representative capacity sued a parties adjudication an to obtain constitution- asserting in accord with Rule defenses from al issues.” This has heretofore Procedure, held Tennessee Rules of Civil 12.02 adjudica- only forum that wherein ultimately that: he concludes tion can be made is the any appellate Court is unaware “[T]his Tennessee, of that but the face final whereby to the law procedure known pronouncement they persist pursuing in the of defendants parties posture spurious course. The and untenable lan- a case trial Court can order dismissed guage they of the brief which take ex- having without first as ception well within is the bounds advoca- suit jurisdiction over law gained circumstances, cy, is a scholarly, through appellate procedures. well brief. Mr. Farrell is an ac- reasoned Court, therefore, concludes that the Or- styled the above petitioning party tive five defendants as signed der right to be State, every heard as it Supreme Court of this insofar involved, subject matter a right here this Court to dismiss directs orders other case, possessed equally every lawyer jurisdiction.” want of is void for in Tennessee. adju- inis effect an pronouncement Said argument made that again the Chan- Chancellor dication only, County, jurisdiction appellate Court’s cery Court of Hamilton thereto, corollary no other court in Ten- proce- the usual therefore we must abide ap- or determine the trial court and nessee can construe pleading in the dure of timely plicability implement of a rule used to therein and a awaiting a final decree results, therefore, if this power. It Court has appeal before original pow- has the inherent and judgment though a final jurisdiction—even rules, then this Court prescribe er to subject is the matter of this Court *3 the ac- original power the to review has complaint. of the Board of Law Examiners tion of Tennessee Supreme Court them.” interpreting applying jurisdiction to original and exclusive 511 at 462. S.W.2d making its own Rules. Its rule promulgate Activating, In Petition Rule of Court the admission and su authority embraces Bar Integrating Unifying the State Bar pervision of members of the 78, 782 199 Tenn. 282 S.W.2d (1955), Supreme origi- the exercised prescribes qualifica 37 the Rule jurisdiction nal adopt of a to a rule required practice of law and tions of court. At that time the members of this licensing pro the examination and controls Neal, Court were Chief Justice A. B. Jus- charged therefor. the fees to be cedure and Prewitt, Tomlinson, tices Allen N. Pride and has been prescribed This Rule Swepston. Hamilton Burnett and John E. from time to time many times and amended lawyers opposing urged, unification original exercising Supreme issue, Chapter as a threshhold that Pub- and without without notice jurisdiction prohibited lic Acts of 1955 unification and in Tennessee has No other Court hearings. Supreme jurisdiction that the Court had no governing a Rule promulgate to jurisdiction pass upon constitutionality no other licensing attorneys, legislative Act in the pending proceeding, jurisdiction to re in Tennessee has exercising original wherein the Court was change promul or void view jurisdiction, jurisdiction because the No count in the state gated by this Court. Supreme was appellate only. entertain a system jurisdiction court Court, Supreme Justice Tomlinson Supreme Court of Tennes suit writing, answered that contention as fol- see, in their naming a suit the members lows: against the capacity is a suit representative “If Courts have inherent power pre- qualifications scribe required for Examiners, v. Board of Law In Belmont law, follow, it seems to as held (Tenn.1974), 461
511 S.W.2d
Massachusetts,
exercising original jurisdiction of a
v. Godfrey,
Collins
324 Mass.
constitutionality
involving
N.E.2d
that ‘the
Judi-
4-1902,
act in di-
legislative
of T.C.A. §
Court,
cial
as under the Constitution the
rect conflict
Commonwealth,
highest court in the
jurisdictional ques-
addressed
Section
representative
judicial
proper
tion as follows:
department
repository
and the
discussing the constitutional
“Prior to
then,
power,
power.’ This Court’s
involved,
make
we must
question herein
respect
original,
appellate.
rather than
petition to review
it clear that
true,
being
adjudication
That
its
as to
of Law Examiners in
action of the Board
Chapter
whether
54 deprives it of this
to take the
petitioner’s request
denying
only
original authority is
an incident to
properly
the fifth time is
examination for
its decision as to whether it will exercise
forego-
We reach the
before this Court.
added).
authority.”
(Emphasis
such
has the
because this Court
ing conclusion
at 784.
282 S.W.2d
prescribe
and adminis-
power
inherent
licensing
precisely
jurisdictional
That is
issue
pertaining to the
ter rules
holding
predeces-
necessary involved here. The
of our
attorney and as a
admission of
sors on this Court in 1955 was sound and
nessee
appear by
must
counsel in a trial
disposition
absolutely
controls
court
plead
jurisdiction
its case for
over
jurisdiction raised here.
issue of
the promulgation of rules governing the
through
and ask
counsel
jurisdiction
had
judgment,
final,
its
entered and
not
constitutionality
issue of the
of this
overturned.
impose an
Court’s
annual
adjudicated
license
fee on
No other court in the
system
18, 1975. It
issue on December
was a final
jurisdiction
of Courts can wrest
of the issue
adjudication,
only to a Petition
subject
constitutionality
of Rule 42 from this
requirements
Rehear in
accord with
of Court,
effort to do so is a direct
32. In our
Court Rule
Order of
jurisdiction
interference with the
and de-
30, 1976,transferring
March
crees of this Court.
Complaint
al
we
to this
waived the
permanent
A
injunction
enjoin-
will issue
requirement
time
Rule 32 and
extended
*4
ing and
Al Barger,
restraining
Leon W.
to,
opportunity
to
et al the
in ef-
Davis, Jr.,
McDonald,
Parker,
U. L.
Joe M.
fect, brief the
as on a
question
Petition to
Winningham,
Richard H.
Thomas H. Harris
they
Rehear and
have declined to do so.
Pranks,
and Chancellor Herschel
and all of
rel,
Knoxville,
City
ex
v.
State
Stall
they
those for
are acting,
whom
(1963),
211 Tenn.
therein, 29-303, and these rules T.C.A. § response It was in regulations many years have for re- infor- Tennessee Bar Association and payment of a license fee. quired developed mation therefrom that the Court By appearing its Rule at 192 Tenn. alternative method of chose a different and *5 many years ago provided this Court for enforcing of eth- professional the standards appointment of members of the Bar to investigation grievances. ics and the investigate grievances complaints This the in the Court felt it had to do lawyers charged with misconduct. in the inter- public interest of the and also provided appointment Rule also for the profession itself. est of the members of proceed- of counsel to institute disbarment upon relying Instead of the efforts readopted later as ings. This Rule was Tennessee Bar Association and the volun- by July order dated of individual and local tary services 1 at copied which is verbatim in T.C.A. associations, bar the Court chose a method Court, (1975 pages seq. Supp.), 176 et by financing grievance which the investi- acting upon petition a of the Tennessee Bar gations professional and enforcement of Association, up set commissioners for the would to the entire standards be shifted complaints of un- purpose investigating membership legal profession of the state’s professional misconduct ethical conduct upon persons holding all a license to part attorneys. state, excep- law in this with the of the stan- implement enforcement To by in the new Rule 42 issued tions set out responsibili- ethics and professional dards of the Court. in- July directly ty, the order It is difficult to believe that this action of the Ten- the Board of Governors volved part associ- on the of the Tennessee Bar Association and local bar nessee ations, usurpation manner set out in detail properly in the Court can be called a com- investigative princi- Rule. The use power or a violation of constitutional Rule 42 has received reports under Court, mittee ples rights. or of individual Assembly. by the General express sanction dealing professional under Rule 29-309. T.C.A. § attempting to deal with them in men and is It has called professional manner. Bar Association 1974 the Tennessee them, protection public for the through its Board to this reported their protection integrity for duly Governors, and brief by bear, in the own licenses to filed, heretofore selected the methods fee, the cost of very form of a small annual the enforcement utilized for establishing Disciplinary the office of regular way. Questions Coun- as to the authority and a sel staff to serve that office. of this Court to create the office or to promulgate however, must ad- Neither undersigned any other by dressed to this Court proper petition, member of the Tennessee filed here. any now or has ever had desire or intention to exercise unwarranted authori- I therefore concur prepar- or to interfere with the freedom or ty, by Justice hope Mr. Fones and that these liberty any professional individual or few additional comments will serve to make by man. Both statute and inherent au- more public clear legal and to the however, thority, has long this Court had profession the action which has taken been of prescribing exercised the role by the Court and the reasons therefor. seeking uphold to enforce and the stan- professional dards of responsibility pur- Court has chosen
State. a different
pose method from followed past many years, doing but so merely exercising
it one of traditional holds, which it statute
powers both necessity being licensing from Philip STATE of Tennessee ex rel. M. legal regulatory authority profes- al., CARDEN et sion. v. The Court has undertaken extend to H. D. William FONES al. any profession ques- member of the who its right tions actions in manner the TENNESSEE BAR time, a petition, at file reasonable ASSOCIATION. modify Court to reconsider or those ask Supreme Court of Tennessee. every actions. Court has intention of extending any person desiring it a right June 1976. appeal to the United States *6 Court, if present- he conceives that there any issue which properly reviewable in however, not,
The Court my should and in not, can permit attacks to be made courts, its rule making power in trial can the members of the required appear at the bar of trial
be to defend rules made them in
courts capacities. sense official In no is this
their members, or of its “above the
law”, but neither can it its members be or
subjected to suits in the courts in the trial Analogies attempted. here to ordi-
manner
nary private litigation are fal- adversary
lacious, attempts apply ordinary of civil
processes litigation regulatory legal of this Court over course, are if the inappropriate.
fession Of
Disciplinary are guilty Counsel or his staff office, they may misconduct in
required to courts in the answer in the