STATE of Wisconsin EX REL. Hon. James P. FIEDLER, Circuit Judge, J. Denis Moran, Director of State Courts, and Richard J. Podell, Petitioners, v. The WISCONSIN SENATE and its President, Senator Fred A. Risser, The Wisconsin Assembly and its speaker, Representative Thomas A. Loftus, Hon. Donald Hanaway, Attorney General, Respondents.
No. 89-0773-OA
Supreme Court of Wisconsin
Argued January 25, 1990.—Decided May 10, 1990.
454 N.W.2d 770
For the respondents the cause was argued by Stephen W. Kleinmaier, assistant attorney general, with
WILLIAM A. BABLITCH, J. This is an original action challenging the constitutionality of
The facts are stipulated. On April 14, 1987, Assembly Amendment 1 to 1987 Assembly Bill 205 was offered in the legislature. The amendment included a provision that read: “In order to be appointed as a guardian ad litem under s. 767.045, an attorney shall have completed three hours of approved continuing legal education relating to the functions and duties of a guardian ad litem under ch. 767.” After further amendments in the assembly and senate, the bill was passed by the legislature, signed by the governor, and published as 1987 Wis. Act 355 on May 2, 1988. The bill as enacted appears as
Petitioners sought a declaratory ruling on the constitutionality of the enactment, and a petition for leave to commence an original action with a brief in support of the petition were filed with this court on April 21, 1989. On April 26, 1989, the court issued an administrative directive instructing the circuit judges of Wisconsin to refrain from implementing the continuing legal education requirements of
The petitioners request a judgment declaring
We conclude that while the legislature may prescribe minimum standards for the eligibility of persons desiring to practice law, it is the province of the judiciary ultimately to decide the fitness of those who practice before it and to regulate their activities following their admission to practice. A concomitant of this authority is the power to decide whether special training for a particular area is appropriate. Because the amendment to
In State v. Holmes, 106 Wis. 2d 31, 42, 315 N.W.2d 703 (1982), we discussed the separation of powers doctrine at great length. We stated:
The Wisconsin constitution creates three separate coordinate branches of government, no branch subordinate to the other, no branch to arrogate to itself control over the other except as is provided by the constitution, and no branch to exercise the power committed by the constitution to another. Id. at 42.
We recognized that although the three governmental branches are coordinate and separate, each deriving
The separation of powers doctrine therefore does not require an absolute division of power without overlap. Rather, the doctrine envisions a government of separated branches sharing certain powers. Holmes, 106 Wis. 2d at 43. Where the legislative and judicial powers overlap, the legislature‘s power to act in the area of shared authority is not unchecked. The legislature is prohibited from unreasonably burdening or substantially interfering with the judicial branch. State v. Unnamed Defendant, 150 Wis. 2d 352, 360, 441 N.W.2d 696 (1989).
However, the separation of powers doctrine does not render every power conferred upon one branch of government a power which may be shared by another branch. There are zones of authority constitutionally established for each branch of government upon which any other branch of government is prohibited from intruding. As to these areas of authority, the unreasonable burden or substantial interference test does not apply: any exercise of authority by another branch of government is unconstitutional. In Matter of Complaint Against Grady, 118 Wis. 2d 762, 776, 348 N.W.2d 559 (1984).1
The respondents correctly assert that the judiciary and the legislature share authority to prescribe qualifications for admission to the practice of law. The judiciary is concerned with the qualifications of attorneys in the exercise of its inherent power to regulate the bar. See Holmes, 106 Wis. 2d at 45, and cases cited at n.11. The legislature is concerned with the qualifications of attorneys pursuant to its power to promote the general welfare. As we stated in In re Cannon, 206 Wis. 374, 396, 240 N.W. 441 (1932):
We think the separation of sovereign power by which the constitution assigns the legislative power to the legislature and the judicial power to the courts, with the purpose of making each department supreme and independent in its respective field, accords to the legislature the power of exacting of those who shall be admitted to the practice of the law such qualifications as the legislature shall deem sufficient to protect the public from the evils and mischiefs resulting from incompetent and characterless attorneys, which qualifications so prescribed must be respected by the courts. The courts cannot and should not license any as attorneys at law who do not
possess the qualifications deemed by the legislature necessary for the protection of the public interest.
This language establishes that the legislature may prescribe minimum qualifications for persons desiring to be admitted to practice law in the state as an incident to its general power to protect the public. Once admitted, however, it does not follow that the legislature shares with the judiciary the authority to establish minimum qualifications in specific areas of law.
To the contrary, we made it clear in the subsequent case of State ex rel. Reynolds v. Dinger, 14 Wis. 2d 193, 206, 109 N.W.2d 685 (1961), that no rule or practice, however venerable, would preempt the exclusive authority of the judicial branch to define and regulate the activities of those who have been admitted. We stated:
[T]he regulation of the practice of the law is a judicial power and is vested exclusively in the supreme court; that the practitioner in or out of court, licensed lawyer or layman, is subject to such regulation; that whenever the court‘s view of the public interest requires it, the court has the power to make appropriate regulations concerning the practice of law in the interest of the administration of justice, and to modify or declare void any such rule, law, or regulation by whomever promulgated, which appears to the court to interfere with the court‘s control of such practice for such ends.
Furthermore, the competence of an attorney to represent a client in a particular area is at present governed by SCR 20:1.1, which requires competent representation through application of the legal knowledge, skill, thoroughness, and preparation necessary for the
The issue of an attorney‘s competence to practice in a particular area is therefore currently left to the attorney‘s professional judgment bounded solely by the judiciary‘s inherent power to regulate the bar. This court has never in the past authorized the legislature to adopt rules or enact legislation attempting to establish a threshold level of competency to practice in a particular area. In fact, this court has specifically prohibited attorneys from holding themselves out as having special expertise in a particular field of law. See SCR 20:7.4.
We therefore conclude that once an attorney has been determined to have met the legislative and judicial threshold requirements and is admitted to practice law, he or she is subject to the judiciary‘s inherent and exclusive authority to regulate the practice of law. A necessary attribute of the court‘s regulatory authority is the power to determine the quantum of competence necessary to perform legal tasks and the authority to discipline those practitioners who fail to represent their clients competently. See In re Cannon, 206 Wis. at 397-98. Because the amendment to
In urging a contrary result, the respondents draw an analogy to the rules governing appointment of private practitioners to serve as public defenders. The respon-
We are unpersuaded. Section SPD 1.04(9) does not constitute an example of the legislature intruding on the discretion of the circuit courts in deciding whom to appoint. The rule relates to attorneys who are eligible to represent indigent clients on behalf of the state public defender. The rule does not purport to prohibit circuit courts from appointing attorneys other than those certified by the state public defender who the court may see fit to serve as the legal representative of an indigent criminal defendant. There is nothing in the implementing legislation to suggest that any attorney licensed to practice could not, if he or she were willing, be appointed to represent an indigent defendant even though the practitioner did not meet the requirement of sec. SPD 1.04(9). Unlike the public defender regulations, the amendment under challenge here intervenes in a court‘s decision concerning whom to appoint as a guardian ad litem and imposes a standard that displaces the adjudicative function.
Nor does the decision in Witter v. Cook County Com‘rs et. al., 100 N.E. 148 (Ill. 1912), support the
Finally, the respondents suggest that even if the amendment to
In reaching this conclusion, we do not question the legislature‘s laudable purpose in establishing a level of competence for persons appointed to serve as guardians ad litem, thereby also promoting efficiency in the adjudication of minors’ rights. However, these qualifications can only be established by the judicial branch pursuant
Accordingly, we conclude that it is the province of the judiciary to decide whether special training for a particular area of the law is appropriate. The amendment to
By the Court. — Rights Declared.
SHIRLEY S. ABRAHAMSON, J. (dissenting). Once again this court claims exclusive judicial authority and declares a statute unconstitutional.1 This court‘s expanding concept of its own exclusive judicial authority creates the danger of unchecked power in this court. The legislature, bench, bar and public should be concerned.2
The issue presented by the case is whether the legislature may impose educational requirements on certain
The majority opinion chooses to characterize
I share the majority‘s doubts about the wisdom of
When determining whether a statute is unconstitutional as a usurpation of judicial powers, I believe the court should, following our earlier cases, consider four questions. First, is the subject matter of the statute within the legislature‘s constitutional charge to promote the general welfare? Second, is the subject matter within the court‘s constitutional grant of judicial power? Third, is the subject matter properly characterized as falling within the area of powers shared between the legislature and the courts or does the subject matter fall within the court‘s exclusive authority? Fourth, what is the effect of the statute on the administration of justice?
Although I believe this court may be better qualified than the legislature to deal with the issue of educational requirements for guardians ad litem, this court need not claim exclusive authority or declare the statute unconstitutional to take advantage of its expertise.
I.
The Wisconsin legislature has plenary power to enact legislation for the general welfare. Except for the argument on separation of powers, the parties do not cite any state or federal law that would prevent the legislature from regulating the educational qualifications of guardians ad litem who represent children in an action affecting the family.
I conclude that the legislature clearly acted under its constitutional plenary legislative powers to protect the general welfare.
No one disputes this court‘s power to regulate the educational requirements of attorneys who are appointed guardians ad litem to represent children in an action affecting the family. The constitutional grant of judicial power extends beyond the power to decide a particular case. It encompasses those powers necessary for the court to efficiently perform its adjudicatory role. These powers are known as incidental, implied or inherent powers. State v. Holmes, 106 Wis. 2d 31, 44, 315 N.W.2d 703 (1981); In re Cannon, 206 Wis. 374, 393-95, 240 N.W. 441 (1932); State v. Cannon, 199 Wis. 401, 402, 226 N.W. 385 (1929); State v. Cannon, 196 Wis. 534, 536-537, 221 N.W. 603 (1928). In the past, the court has exercised its incidental, implied or inherent judicial powers to regulate the court‘s budget, regulate pleading, practice and procedure, appoint counsel at the public‘s expense, create a judicial code of ethics, and discipline judges. See Rules of Court Case, 204 Wis. 501, 236 N.W. 717 (1931); Holmes, supra, 106 Wis. 2d at 45 n.11 and the cases cited therein; In Matter of E.B., supra 111 Wis. 2d at 181-82.
III.
The majority opinion characterizes
The majority opinion ignores the broader purposes and other possible characterizations of the legislation.
I would characterize
This court has declared in numerous decisions that the doctrine of separation of powers is not an absolute rule but a working principle of government. The doctrine is applied to maintain the balance of power among the three branches of government, to preserve their respective independence and integrity, and to prevent the concentration of unchecked power in the hands of any one branch. In Matter of E.B., supra 111 Wis. 2d 181; In Matter of Complaint Against Grady, 118 Wis. 2d 762, 790 n.4, 348 N.W.2d 559 (1984) (Abrahamson, J., concurring).
Relying on the separation of powers doctrine, this court has guarded the judiciary‘s independence and has been unwilling to sanction any legislative attempt to interfere with the essence of judicial power—a court‘s ability to decide the merits of a dispute under law, independently, impartially and free from coercion from another branch of government. At the same time the court has been reluctant to draw absolute boundaries between legislative and judicial powers because of the amorphous nature of the separation of powers doctrine. Davis v. The President and Trustees of the Village of Menasha, 21 Wis. 497, 501 (1867). In Matter of E.B., supra 111 Wis. 2d at 181.
The primary sources for interpreting the separation of powers doctrine are the practices before and at the time of the adoption of the constitution and the earliest interpretation of the provision as manifested in the first laws adopted by the legislature. Rules of the Court, 204
History supports my conclusion that
The legislature‘s longstanding and continuing involvement in defining when a court should appoint a guardian ad litem and the qualifications and responsibilities of the guardian ad litem justifies concluding that the regulation of guardians ad litem falls within the area of powers shared by the legislature and the courts, not within the exclusive domain of this court.
If a law falls within an area of shared authority, as I believe
The legislative requirement that guardians ad litem who represent children in any action affecting the family take three hours of approved continuing legal education credit fits with the court‘s rules requiring every lawyer to take a prescribed number of credit hours of continuing legal education. SCR ch. 31. The legislative requirement parallels this court‘s own order requiring lawyers to “attend as part of the continuing legal education requirement of SCR 31.02 three hours of approved continuing legal education credits on the subject of the new Rules of Professional Conduct for Attorneys.” Supreme Court Order, In the Matter of the Amendment of Supreme Court Rules: SCR Chapter 20: Code of Professional Responsibility, June 10, 1987, p. 5.6
The shared powers approach respects the expertise and institutional ability of both the legislature and the courts. If the court believes
The majority contends that the court possesses the exclusive authority to regulate the practice of law to the complete exclusion of the legislature. Our case law provides no support for holding that this court shall, in the absence of legislative interference with the judicial branch, exclusively regulate the practice of law. The court stated in Integration of Bar Case, 244 Wis. 8, 50, 11 N.W.2d 604, 12 N.W.2d 689 (1943), “it is quite obvious from a study of the history of the bar and the consideration of judicial decisions that the line of demarcation between the legislative field and the judicial field in mat-
I can find no unified theory in our cases explaining the court‘s and legislature‘s spheres of authority in matters relating to admission to the bar, practice of law or disbarment. The court has followed a pragmatic approach to statutes relating to these subjects, seeking to accommodate the legislature‘s concerns for the general welfare, to defer to reasonable legislative enactments, and to avoid conflict with the legislature. See, e.g., Application of Lavinia Goodell, 39 Wis. 232 (1875), 48 Wis. 693, 81 N.W. 551 (1879); State v. Cannon, 196 Wis. 534, 221 N.W. 603 (1928); In re Cannon, 206 Wis. 374, 240 N.W. 441 (1932); State ex rel. Junior Assn of Milwaukee Bar v. Rice, 236 Wis. 38, 53, 294 N.W. 550 (1940); State ex rel. Reynolds v. Dinger, 14 Wis. 2d 193, 109 N.W.2d 685 (1960).
The majority opinion contends that In re Cannon, 206 Wis. at 396, and State ex rel. Reynolds v. Dinger, 14 Wis. 2d at 206, prohibit the legislature from regulating the practice of law. I disagree.
Cannon‘s reach is significantly more limited than the majority opinion suggests. The Cannon court merely held that the legislature may not enact a statute admitting a single individual as a member of the bar, namely Raymond Cannon, whom the court had suspended from practice of law. The court reasoned that the legislature may establish minimum criteria for bar admission so long as the criteria apply generally to all attorneys and do not interfere with the court‘s power to enact further requirements for admission or to discipline individual attorneys. Cannon does not suggest the legislative interest ends with lawyers’ admission to the bar.
Similarly, the majority opinion‘s reliance on Dinger is misplaced. In Dinger, the court considered whether
Even if the court were to determine that the
While the legislature has no constitutional power to compel the court to act or, if it acts, to act in a particular way in the discharge of the judicial function, it may nevertheless with propriety, and in the exercise of its power and the discharge of its duty, declare itself upon questions relating to the general welfare . . . . The court, as has been exemplified during the entire history of the state will respect such declaration and, as already indicated, adopt them so
far as they do not embarrass the court or impair its constitutional functions.
Accordingly, this court has consistently held that even if a law falls within the court‘s exclusive authority, the court will uphold the law if this court accepts it as an aid to the court‘s power; it is invalid if this court determines that the law thwarts the administration of justice. State ex rel. Reynolds v. Dinger, 14 Wis. 2d 193, 109 N.W.2d 685 (1961).
The majority opinion makes no effort to demonstrate that
V.
I do not join the majority opinion because it improperly and unwisely closes the people‘s access to the legislature by characterizing the statute as falling within this court‘s exclusive powers. Neither the majority opinion nor the cases it cites defines the phrase practice of law. For the difficulty of defining what constitutes the practice of law, see Dinger, supra. The court arbitrarily claims the power to place vast areas of the law beyond the power of the legislative and executive branches by characterizing a statute as regulating the “practice of law.”
As a result of this opinion, the only recourse for those seeking to improve the quality of performance of guardians ad litem who represent children in an action affecting the family is to petition this court to adopt rules. I do not believe the court‘s rule-making process
The court‘s rule-making procedures are, unfortunately, confusing and shrouded in secrecy. Some rules fall within
At times this court must assume exclusive power to ensure the orderly administration of justice. In my opinion, this case is not one of those times. The majority opinion departs from time-honored principles of shared powers between two equal and coordinate branches of government and the spirit of comity. Justice Crownhart‘s words in 1929 chastising the court for assuming powers are applicable in this case: “The court is the sole judge of its powers, without guide or compass. I would think that this court would not wish [to exercise] arbitrary power, for arbitrary power begets arbitrary use
For the reasons set forth, I dissent.