April 7, 1955
Hon. Waino E. Hendrickson
Secretary of Alaska
Juneau, Alaska
Dear Secretary Hendrickson:
Committee Substitute for House Bill No. 30, which became law at midnight March 22, 1955, without my signature, raises numerous questions of legality. I had grave doubts as to the propriety of permitting this bill to become law and only upon assurance by numerous lawyers who are presently in the Alaska Legislature, that the law would cure some of the undesirable situations, which frequently reoccur in the profession, did I consent to let the bill become law.
Among the questions raised by members of the legal profession in Alaska were the following:
A copy of the opinion of the Attorney General of Alaska bearing these points is attached for your information.
You will note that the Attorney General holds that Section 15 of the Act is invalid as conflicting with the Organic Act (4-1-4 ACLA 1949).
I fear that the legality of procedures taken under this Act may be subject to Judicial determination, but in any event I would suggest that the first Board of Governors elected under this law prepare new legislation as they deem proper to remove any vague or unworkable provisions and to eliminate any provisions they may find to be legally doubtful.
Sincerely Yours,
s/s
B. Frank Heitzleman
Governor
Honorable B. Frank Heintzleman
Governor of Alaska
Juneau, Alaska
Dear Governor Heitzleman:
This is a reply to your letter of March 19, 1955, wherein you ask several questions as to the legal sufficiency of House Bill No. 30, an Act designed to create an Alaska Integrated Bar Association.
Your first question asks what type of instrumentality is created by Section 2 of the bill. Section 2 reads as follows:
Section 2. Objects and Powers. "There is hereby created an instrumentality of Alaska, for the purpose and with powers hereinafter set forth, to be known as the Alaska Bar Association, hereinafter designated as the Alaska Bar, which Association shall have a common seal, may sue and be sued, and which may, for the purpose of carrying into effect and promoting the objects of said association, enter into contracts and acquire, hold, encumber and dispose of such real and personal property as is necessary thereto."
Your first inquiry gives immediate rise to the further question as to what exactly does the term "instrumentality of Alaska" mean? Of course, is this "instrumentality" is an arm of the Territorial Government, then there is no individual membership liability for acts done by the officers and the members would have no personal interest in the property of the association.
I have been unable to find a better definition of the term "instrumentality" than the one found in Unemployment Comp. Com’n v. Wachovia Bank, 215 N.C. 491, 2 S.E. 2d 592, 595-96:
"In the border line cases in which it does not clearly appear that the agency is or is not and instrumentality of government important factors, among others, which must be considered in determining that such agency is an instrument of government are: (1) It was created by the government; (2) it is wholly owned by the government; (3) it is not operated for profit; (4) it is primarily engaged in the performance of some essential government function;…While perhaps, no one of these factors is sufficient, and the presence of all is not required to constitute any given agency an instrumentality of government, the presence or absence of either requires serious consideration…"
Bearing these principles in mind, it is to be determined whether the Alaska Bar Association is an instrumentality of the government within this definition and hence, clothed with the immunities and privileges of a government agency.
In addition to the fact that the Legislature specifically designated the Alaska Bar Association as an "instrumentality of Alaska", it can hardly be disputed that criterion (1) and (3) set forth above are fully satisfied. In regard to criterion (2), it can be stated that the association is not wholly owned by the government in the same sense that the University of Alaska is owned; however, it is to be noted that the Legislature intends to appropriate some monies presumably for the operational expenses of the Bar Association. See Section 10(E). Whether criterion (4) has been satisfied is the determining and final consideration. The question to be asked is whether the Alaska Bar Association will be engaged in some government function or activity in the public interest. If the answer is in the affirmative and taking into consideration that criterion (1), (2) and (3) are substantially satisfied, the Bar Association can be considered as an agency and instrumentality of the government as heretofore defined, and hence entitled to all the rights, duties and responsibilities incident thereto.
In State Bar v. Superior Court, 278 P, 432, 435, the appellant argued that:
"…notwithstanding the express declaration embodied in the title and also in the body of the State Bar Act that the corporation to be formed and to function thereunder is to be a public corporation, it cannot be held to be other than a private corporation in view of its membership, its functions, the purposes of its creation, and, finally, its independence of public regulation and control."
The supreme court of California considered and dismissed the above objections in the order of their statement, in the following manner:
"…it is a matter of public history and general knowledge that the profession and practice of the law embraces in its membership probably the largest, and certainly the most influential, body of individuals, having a definite and common objective, of any similar professional association of citizens of this or of any other of the commonwealths of our common country. This body of our citizenry known to the laws of this state as ‘attorneys and counselors in law’ form an integral and indispensable unit in our system of administering justice which has come down to us under the name of Anglo-Saxon jurisprudence, and without the constant presence and contacts which courts could not function or the orderly administration of justice go on. Attorneys and counselors at law have been knows as ‘officers of the court’ and as such they have for centuries been required to undergo certain courses of preparation and to assume certain solemn obligations relative to their training, character, and conduct as such; and these not only with respect to their relation to the courts, but also with regard to their relation to the public at large. Thus it is that the profession and practice of the law, while in a limited sense a matter of private choice and concern in so far as it relates to its emoluments, is essentially and more largely a matter of public interest and concern, not only from the viewpoint of its relation to the administration of civil and criminal law, but also from that of the contacts of its membership with the constituent membership of society at large, whose interest or evil dispositions of those who may be masquerading beneath the cloak of the legal and supposedly learned and upright profession. It is to be noted also that from the body of the legal profession it is required, by both the Constitution and statutory law of this and most other states, the justices and judges of all courts of record and of certain other subordinate tribunals must be chosen. It is for each and all of these reasons that the membership, character and conduct of those entering and engaging in the legal profession have long been regarded as the proper subject of legislative regulation ad control; and it has never heretofore been considered, so far as we have been made aware, that, at least in this commonwealth, the exercise of a reasonable degree of regulation and control over the profession and practice of the law, constituted in intrusion into the domain of our state organization constitutionally assigned to the judicial department thereof. From almost the inception of our state government statutory provision has been made for the admission, disbarment, suspension, or disciplining of members of the legal profession. Stats. 1851, p. 48. It is not necessary herein to review the changes which have occurred in the course of our statutory regulations in this regard, nor even to consider in detail the various tribunals and administrative bodies to which from time to time these regulatory functions have been assigned, since the purpose of this branch of our inquiry has been attained when we arrive at the conclusion, as we do, from the foregoing considerations that the profession and practice of the law is not such a matter of purely private concern that the effort on the part of the Legislature to "put the regulation thereof into the organized form contemplated by the State Bar Act is to be regarded and held as attempt to provide for the formation of a private corporation." In accord: In Re Scott 53 Nev. 24, 292 P. 291 (Nevada Act is a copy of California Statute). See Anno. In 114 ALR 161.
However, the Idaho Supreme Court has held that a statutory provision for perpetual succession of the state bar, as well as provisions for a common seal and for authority of receive, grant, purchase, or hold property in its name were unconstitutional grants of power to a bar association. Jackson v. Gallet 39 Idaho 382, 228 P 1068. Re Edwards 45 Idaho 676, 266 P. 665. But the Supreme Court of California,, when requested to apply the principle and reasoning of these Idaho cases to the California Integrated Bar Act, made the following comment:
"It will suffice here to say that we do not approve of either the reasoning or conclusions of these Idaho cases, and decline to adopt or follow them."
After analyzing and inspecting both the California and Idaho views, it is my conclusion that the California reasoning is to be preferred; (particularly since House Bill No. 30 can be likened to the California Bar Act) and that the Legislature intended the Association to be an instrumentality of the Territory and therefore clothed with all its immunities, rights, and obligations thereof. By this conclusion, there would be no individual liability and it is unnecessary to further pass upon the question as to the statue of an "unincorporated association".
The next question, found in the fourth paragraph of your letter, is directed to the point of whether or not the bill constitutes a valid delegation of legislative powers, because the board is given the power to define "the practice of law" and there are "no standards provided."
I am of the opinion that the "standards" pertaining to the powers and functions of the Alaska Bar Association, governed by a Board of Governors, are adequately set forth.
The language used in defining the power and duties of the Board of Governors bears close resemblance to the language found in other integrated bar acts. (Particularly see States of Washington, California and Nevada.)
It is proper for a legislature to commit to an administrative board or commission the determination of a standard of fitness where the subject necessarily involves technical and varying standards. See Institute of Metropolis v. University of State of New York, 289 N.Y.S. 660, citing Liberman v Van deCarr, 199 U.S.552. Statutes have been held not invalid which empower executive officers or bodies to prescribe specific standards or qualifications for applicants, or conditions under which a particular business or profession must be carried on, or to formulate examinations, or to ascertain the existence of conditions or circumstances in which a state shall permit a particular business or profession to be continued. See Douglas v. Noble, 261 U.S. 165, 16 C.J.S. 372, Sec. 138 (12).
In Commonwealth, ex rel. Ward V. Harrington, (Ky.), 98 S.W. 2d 53, a disbarment proceeding, it was held that no unconstitutional delegation of legislative authority was made to the court of appeals by the Kentucky Bar Integration Act, which among other things, provided for the adoption and promulgation by the court of appeals of rules and regulations defining the practice of law, prescribing a code of ethics for attorneys and establishing rules of practice or procedure for disciplining attorneys. Also see In re Lewkowitz, 220 P. 2d 229.
Over 28 states have statutes expressly providing for a State Integrated Bar, and the courts have sustained the validity of the vast majority of these statutes.
You question whether the individual rights of members to practice is adequately protected by the provisions of Section 8 of House Bill No. 30. In this regard, you note that "no provision for notice and hearing is contained in the bill."
In the case of In Re Scott (supra), the court rejected a contention that an act providing for this integration of the bar violated the fundamental principles of government in that those engaged in the practice of law were compelled to accept membership in a corporation in order to practice their profession. The court said:
"This contention furnished the most popular criticism of the members of the profession opposed to the law. As hereinabove stated, the membership, character, and conduct of those entering and engaging in the legal profession has, since the inception of our state government, been regarded as the proper subject of legislative regulation and control; the right to follow any of the common industrial occupations of life does not extend to the pursuit of professions or vocations of such a nature as to require peculiar skill or supervision for the public welfare. In the adoption and approval of the legislation under review, the legislature evidently considered that the time had come in the administration of the law that attorneys and counselors at law, who constitute an integral and indispensable unit in the administration of justice, should be organized as a body politic, with delegation police power subject to the control of the supreme court and the legislature for the benefit of the public welfare in a matter of great public concern."
The reasonableness of any rules and regulations promulgated by the Board are always subject to review by the courts in a proper proceeding brought by any member who feels he is aggrieved thereby. Under some statutes providing for integrated bars, no notice or hearing is necessary before the suspension of any attorney from membership. Hill v. State Bar, 97 P. 2d 236; In re Platz, 108 P.2d 858. However, the fact that the act does not specifically prescribe that there be notice does not mean that rules and regulations shall omit the giving of notice to an attorney charged with an impropriety. The general rule is that the attorney is entitled to notice and opportunity to be heard on any question arising during the course of any disciplinary proceedings, whether the action is brought under any statute or in the exercise of a court’s inherent powers. Therefore, it is my conclusion that the better rule is if no notice in fact has been given, the attorney charged with an infraction may set aside the findings and recommendations of the Board of Governors but the omission of the requirements of notice in the bill is not a basis for reviewing it as fatally defective. It is to be noted that even though the statute does not expressly provide for the giving of notice in disciplinary proceeding, notice is implicit within the terms of Section 8 reading: "(The Board shall)…hear and finally determine all causes involving discipline, disbarment, suspension or re-instatement…" (Emphasis supplied).
As to the suggestion that the court’s powers are limited in disciplinary actions, I wish to make the following comments. The cases are in some confusion as to what power a legislature may, as of right, and not by mere reason of comity or courtesy, regulate the matter of admitting, suspending and disbarring attorneys. It has been held under the California statute, upon which House Bill No. 30 appears to be patterned in part, that the powers conferred on the Board of Governors to conduct disbarment proceedings and disbar or discipline members, is but a "recommendatory’ power in character, the Board acting only as an "intermediary agency," since the act also provides (1) for the filing of a certified copy of any record in suspension or disbarment (as does House Bill No. 30; see Section 14); (2) for the issuance of an order by the court striking from the roll the name of any attorney disbarred or suspending him, as the case may be, provided no petition for review had been filed within 60 days after the Board’s order (House Bill No. 30 grants only 30 days); and (3) that nothing contained in the act shall be construed as limiting or altering the power of the court of such state to disbar or discipline members of the bar as such power then existed. IN re Shattuck, 279 P. 998; and see In re Peterson, 280 P. 124, wherein the court stated:
"The action of the Board of Governors in the hearing of disbarment proceedings under the State Bar Act of California is not a final proceeding, the power of disbarment resting finally and solely with the Supreme Court."
That the court will modify recommendations and take independent initiative as to what the final order shall include in disbarment cases seems clear by the United States Supreme Court’s recent action in setting aside a permanent disbarment in the case of Sacher v. Association of the Bar of the City of New York, 347 U.S. 388.
It is well established that the court may, in reviewing a disciplinary action, return the matter for insufficient findings or for further ascertainment of facts. In the last analysis, with the diversity of opinions presently existing, we can only await a judicial test on this provision before it can decidedly be declared insufficient. Meanwhile, I would recommend that it be accepted as not limiting the court’s power.
If possible, the House Bill should be corrected, for the title does not repeal Section 35-2-21, although Section 16 of the Bill expressly does so. However, this is undoubtedly a clerical error, for it is to be noted that Section 8 of the Bill establishes the same Code of Ethics of the American Bar Association as the rules of professional conduct, although not limiting the Alaska Bar members to those standards. Therefore, it would seem that the legislative intent was to repeal Section 35-2-21 ACLA 1949 and the title should show this intent. In my opinion this minor oversight would not in any way affect the validity of the Bill.
Section 8 of the Bill is a sufficient standard of conduct for it refers the attorneys to the Canons of Professional Ethics, which contains 47 Canons, to be used as a general guide in determining the proper course of professional conduct to pursue in a given situation. It would be undesirable to purport to prescribe in detail all the guiding rules of conduct necessary for attorneys. The position of trust that the attorney will become so complex that any attempt to define every situation would culminate in an un-wielding result.
Your next query concerns itself with whether a District Court can be deprived of its inherent power s to:
The following statutory provisions pertain to the question:
Title 48 USC, Section 80.
"Section 80. Legislature not to deprive judges, officers, etc., of district court of authority or jurisdiction. The legislature shall pass no law depriving the judges and officers of the district court of Alaska of any authority, jurisdiction, or function exercised by like judges or officers of district courts of the United States. Aug. 24, 1912, c. 387 §3, 37 Stat. 512."
Section 3, Organic Act of Alaska.
"…And the legislature shall pass no law depriving the judges and officers of the district court of any authority, jurisdiction, or function exercised by like judges or officers of district courts of the United States."
Section 4-2-6 ACLA 1949.
"Section 4-2-6. Prohibition against laws impairing jurisdiction or authority of district court judges or officers. The legislature shall pass no law depriving the judges and officers of the district courts of the United States."
The annotations appearing in 66 ALR 1512, 81 ALR 1064, 144 ALR 151, 114 ALR 161 and 151 ALR 615 set forth the judicial decisions on the subject of the power of the legislature respecting Bar Associations.
The majority of the courts, either on the police power theory or on the theory that the statutes are in aid of judicial functions hold that the legislature may prescribe reasonable rules and regulations regulating the Bar. The only limitations being that the rules and regulations do not deprive the courts of their inherent power to prescribe additional requirements.
The minority hold, usually on the separation of powers doctrine, that the judiciary has the sole right to prescribe the qualifications and thus will not permit interference from any other branch of government.
Since Court decisions in Alaska have not objected to the prior legislative enactment’s regarding the bar, it is relatively safe to assume that this is a proper subject of legislation by the Territorial Legislators, providing the inherent power of the court is not invaded. There is nothing in the act that prevents the court from imposing additional qualifications and requirements for admission or in promulgating regulations governing the disciplining of the members of the Bar, hence the act does not deprive the court of its inherent power. The power conferred on the Board of Governors is merely, "recommendatory" and the ultimate power rests with the court.
Your final questions asks does membership on the Board of Governors and the Alaska Bar Commission constitute holding of an office within the prohibitions of the Organic Act, and if so, does the last sentence of Section15 of the Bill attempt to provide an "escape from operation of Section 4-1-4, ACLA 1949, which is also part of the Organic Act."?
The following statutory provisions relate to the question:
Title 48 USC Section 82.
§82. Member holding other office.
"No member of the Legislature shall hold or be appointed to any office which has been created, or the salary or emoluments of which have been increased, while he was a member, during the term for which he was elected and for one year after the expiration of such term. Aug. 24, 1912, c. 387, §11, 37 Stat. 516."
Section 11, Organic Act of Alaska.
"§11. Legislators holding other office: Persons commissioned or appointed under United States. That no member of the legislature shall hold or be appointed to any office which has been created, or the salary or emoluments of which have been increased, while he was a member, during the term for which he was elected and for one year after the expiration of such term;…"
Section 4-1-4 ACLA 1949
"§4-1-4. Holding other office: Newly created office: Office of which emoluments are increased. No member of the legislature shall hold or be appointed to any office which has been created, or the salary or emoluments of which have been increased, while he was a member, during the term for which he was elected and for one year after the expiration of such term. (37 Stat. 516; CLA 1933, §477; 48 USC §82}"
The determining factor is whether the appointment or election is to an office created by the legislature.
The Montana Supreme Court, in State v. Hawkins, (1927) 257 Pac. 411, 418, sets out a complete analysis of the question:
"After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature:
In regard to the first element, Black’s Law Dictionary defines "create" as "To bring into being; to cause to exist…To created a charter or a corporation is to make one which never existed before…", therefore, it is obvious that the Territorial Legislature created Integrated Bar for it was not in existence prior to this enactment.
In regard to the fourth element, the enumerated duties set out in Sections 8 and 15 are performed independently and without control of a superior power except in the one instance when in disbarment proceedings. This one exception comes within the provision requiring the duties to be performed independently and without control, "other that the law".
In regard to the fifth element, the Board of Governors does have permanency and continuity in that Section 5 provides for a method of replacing various members as their terms expire.
In conclusion, serving on the Alaska Bar Commission and the Board of Governors constitutes the holding of an office created by the legislature and thus no legislator may serve thereon until the expiration of his tem and for one year thereafter.
However, the appearance in Section 15 of the following language:
"…It is the intent of this Act that membership of the Board of Governors and the Alaska Bar Commission shall not constitute the holding of an office within the meaning of Section 4-1-4 ACLA, 1949."
Would not invalidate the Bill for the reason it contains a severability clause. Furthermore, if no legislators are appointed, the operative portion of this Section would not apply.
If I can be of any further assistance, please do not hesitate to call upon me.
Sincerely yours,
/s/J. Gerald Williams J. Gerald Williams Attorney General