The State Bar of Texas v. Gomez

HIGHTOWER, Justice,

joined by GAMMAGE and SPECTOR, Justices,

dissenting.

Because I believe that the district court has jurisdiction of this suit and that the Court would effectively deny the Plaintiffs’ access to a meaningful forum in which to seek redress of their grievances, I respectfully dissent.

I.

The jurisdictional inquiry begins with Article V, Section 8 of the Texas Constitution which provides in part:

District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other latv on some other court, tribunal or administrative body.

Tex. Const. art. V, § 8 (emphasis added). The district court held that it lacked jurisdiction because the legislature had conferred jurisdiction over matters concerning the administration of the State Bar upon this Court in the State Bar Act. See Tex.Gov’t Code Ann. § 81.011(c) (West 1988). I disagree.

What the legislature conferred upon this Court was “administrative control over the state bar.” Tex.Gov’t Code Am. § 81.011(c) (West 1988) (emphasis added). “Jurisdiction” within the meaning of A-ticle V, Section 8 includes only the judicial powers of the courts. These judicial powers are typically the only ones at issue when the Court makes statements such as: “[Jjudicial power is divided among the various named courts by means of express grants of ‘jurisdiction.’ ” Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex.1979) (citing Morrow v. Corbin, 122 Tex. 553 , 62 S.W.2d 641 (1933)). But Texas courts have duties in addition to their judicial responsibilities.

I do not disagree that this Court’s inherent power to regulate the practice of law is more expansive than the administrative authority that the legislature has “granted” to us. See Daves v. State Bar, 691 S.W.2d 784 (Tex.App.—Amarillo 1985, writ refd n.r.e.) (noting the Court’s inherent power to adopt rules governing the practice of law by extra-statutory means); see also Tex.Gov’t Code Ann. § 81.011(b) (West 1988) (stating that the State Bar was a legislative creation passed to aid the Court in exercising its judicial power). See State Bar v. Heard, 603 S.W.2d 829, 831 (Tex.1980). Even so, it does not necessarily follow that this inherent power is so great that it deprives the state’s courts of general jurisdiction of the authority to hear a challenge pertaining to the governance of the legal profession.

The proper question to determine whether the district court has jurisdiction over this case is not whether this Court, in its administrative capacity, could act in a manner that would decide or moot the issues raised. Rather, three questions must be asked: (1) *249 whether the State Bar and its officers are the proper parties in this case; (2) if so, whether the district court is an appropriate forum to hear a matter over which this Court exercises such extensive authority; and (3) whether the failure to act, as opposed to an affirmative action, nevertheless presents an issue over which the district court may exercise authority. I would answer all three questions in the affirmative.

However couched, the Plaintiffs’ claims are actually directed not so much at the State Bar 1 as at an alleged deficiency in the current system of lawyer regulation established by this Court and the legislature. This Court, both by legislative grant and its inherent powers, possesses authority to regulate the practice of law and exercises control over the State Bar. See Tex.Gov’t Code Ann. §§ 81.011, 81.024(a) (West 1988) (clarifying this Court’s supervisory role over the State Bar); State Bar v. Heard, 603 S.W.2d at 831 (“The State Bar Act was passed in aid of this court’s exercise of its inherent power to regulate the practice of law.”) (footnotes omitted). The legislature recognized the Court’s fundamental responsibility in this area when it passed the State Bar Act “in aid of the judicial department’s powers under the constitution to regulate the practice of law.” Tex.Gov’t Code Ann. § 81.011(b) (West 1988).

The State Bar’s actual power in this regard is limited to proposing regulations to this Court, which could reject or amend any such recommendation. Under a strict concept of justiciability, one could argue that there is no justiciable controversy between the State Bar and the Plaintiffs. See Board of Water Eng’rs v. City of San Antonio, 155 Tex. 111 , 283 S.W.2d 722, 724 (1955) (defining “justiciable controversy” as the requirement that there shall be a real controversy between the parties that will actually be determined by the judicial declaration sought). On the other hand, more modern notions of justiciability would acknowledge that the State Bar is an acceptable “surrogate defendant” for the Court in this matter. In fact, the State Bar has served as such a surrogate in several recent cases. See, e.g., O’Quinn v. State Bar, 763 S.W.2d 397 (Tex.1988); State Bar v. Tinning, 875 S.W.2d 403 (Tex.App.— Corpus Christi 1994, writ denied); Mussle-white v. State Bar, 786 S.W.2d 437 (Tex.App.—Houston [14th Dist.] 1990, writ denied); Daves v. State Bar, 691 S.W.2d 784 (Tex.App.—Amarillo 1985, writ ref'd n.r.e.). 2 For these reasons, I conclude that the district court’s jurisdiction is not suspect on this basis.

II.

Next we must decide whether the district court has subject matter jurisdiction over a challenge to an administrative decision of this Court. I believe the answer is yes. Promulgating court rules in our administrative capacity does not and cannot imply a concomitant determination by this Court in its judicial capacity that such rales are constitutional in every respect. Hopefully, this Court does not abandon its collective knowledge of the Constitution when it exercises its rule-making authority, and surely it would not knowingly promulgate any rule it regarded as violating the United States or Texas Constitutions. However, we are not omniscient. It is simply beyond the capacity of this or *250 any other court to envision every possible constitutional ramification or factual application of its orders or rules, particularly before it has the benefit of a case and controversy that vigorously explores both sides of the issues. See Order of the Supreme Court of February 28, 1966, Transmitting Amendments to Rules of Civil Procedure, 383 U.S. 1029 , 1032 (Black, J., dissenting) (stating that “the Court’s transmittal does not carry with it a decision that the amended rules are all constitutional” because “such a decision would be the equivalent of an advisory opinion which, I assume the Court would unanimously agree, we are without constitutional power to give.”); Grand Bahama Petroleum Co. v. Canadian Transp. Agencies, 450 F.Supp. 447, 450 (W.D.Wash.1978) (holding that the district court had jurisdiction to consider a constitutional challenge to a federal rule of civil procedure, noting that “[w]hile the [United States Supreme] Court certainly considers the constitutionality of a rule recommended by a committee, it is not possible for its members to anticipate every constitutional objection.”). This is especially true when, as here, it is the failure to provide for some constitutionally mandated system that is alleged.

Nor would the mere determination by the district court that the current system is constitutionally deficient invade this Court’s inherent power to regulate the practice of law. We have no inherent power to create a system that violates the Constitution, just as the legislature has no power to pass unconstitutional statutes. See Reese v. State, 772 S.W.2d 288, 290 (Tex.App.—Waco 1989, pet. ref'd) (reasoning that a court may not enact a procedural rule that conflicts with a provision of the constitution); Picard v. State, 631 S.W.2d 761, 763 (Tex.App.—Beaumont 1981, no writ) (holding that the rule-making authority of any court may not conflict with constitutional provisions and that any unconstitutional rule is inoperative). For example, the Constitution provides that this Court may not appoint to the State Commission on Judicial Conduct more than one judge from the same Supreme Judicial District. Tex. Const. art. V, § l-a(2). If the Court breached this restriction, surely it. would be answerable to the legal system. If this be conceded, there can be only two possible mechanisms to enforce constitutional restrictions on the Court acting in its administrative capacity: a suit against the Court in a lower court or an original proceeding in the Court itself. Either of these courses is permissible, but at least one is necessary. Under the Court’s analysis, however, there is no mechanism to enforce constitutional restrictions on the Court acting in its administrative capacity. In this case, the Plaintiffs are left without a meaningful forum in which to seek redress of their grievances. The Court has directed “that this matter be placed on the Court’s administrative agenda for further consideration.” In essence, the Court suggests that the Plaintiffs directly petition the Court for redress of their “complaint.” However, the Court is not required to consider or take any action on the “petition” — ever! Obviously this does not constitute a meaningful forum. 3 It is also unclear whether the Plaintiffs could seek redress of their grievances in the Legislature. Based upon the Court’s expansive description of its inherent powers to regulate the practice of law, it is doubtful that the Legislature has the power to impose a mandatory pro bono system upon the State Bar.

Some state supreme courts have expressly provided for the filing of petitions challenging their orders and rules directly with that court. See, e.g., Aldridge v. Watling Ladder Co., 275 Ark. 225 , 628 S.W.2d 322, 323 (1982) (holding that a case involving construction of supreme court rule should have been certified to supreme court under Supreme Court Rule 29(1)(e)); Goetz v. Harrison, 153 Mont. *251 403 , 457 P.2d 911, 912 (1969) (stating that questions involving the constitutionality of a supreme court rule should be presented to the supreme court in an “appropriate original proceeding.”)

This Court has, with narrow exceptions, never provided such a procedure. 4 Because supreme court rules must comport with the Constitution and because the judicial branch is entrusted with interpreting the Constitution, jurisdiction to consider challenges to rules must exist at the district court level. This view comports with the general understanding of Texas law, and with what is probably the majority rule in most of the states that have been confronted with the issue. See, e.g., Beard v. North Carolina State Bar, 320 N.C. 126 , 357 S.E.2d 694, 695 (1987) (holding that a “direct challenge of the constitutionality of an order of this Court ... must be litigated as an original action in the General Court of Justice.”); Berberian v. Kane, 425 A.2d 527 , 528 n. 2 (R.I.1981) (holding that a rule may be challenged in a case seeking declaratory judgment that the rule was unconstitutional).

III.

The question remains whether this case is nonjusticiable because the district court does not have jurisdiction to grant the relief sought. Plaintiffs seek a declaratory judgment that the State Bar is violating their constitutional and statutory rights. Among other things, Plaintiffs requested that the district court “[djeclare that the official policies, actions, and failure to act alleged herein, which involve the refusal to Defendants to adequately provide for the legal services needed by Plaintiffs and the class, violate the Texas Constitution and Tex.Civ.Prac. & Rem.Code § 106.001.” Plaintiffs also seek an injunction prohibiting the State Bar from continuing to violate the rights of indigent citizens and an injunction mandating the State Bar to implement an adequate and more effective pro bono program. Fúst, declaratory relief is proper whether or not further relief is or could be claimed. See Tex.Civ.Prac. & Rem.Code Ann. § 37.003(a). The district court has the authority to render a judgment declaring the constitutional and statutory rights of Plaintiffs and, also, to declare whether such rights have been violated. See Tex.Civ.Prac. & Rem.Code Ann. § 37.003. I fail to see the distinction between the district court’s jurisdiction to determine the constitutionality of the official policies, actions, and failure to act caused by the refusal of the State Bar to adequately provide for the legal services needed by Plaintiffs and the district court’s jurisdiction to determine the constitutionality of rules proposed by the State Bar and promulgated by this Court. In both cases, the district court’s determination could be reviewed by this Court in its adjudicative capacity. Contrary to the Court’s assertion, the determination of the constitutionality of the refusal to the State Bar to adequately provide for the legal services needed by Plaintiffs would not cast the district court in the role of effectively promulgating policies and regulations governing Texas lawyers.

Concerning injunctive relief, a prohibitory injunction, one prohibiting the State Bar from continuing to violate Plaintiffs’ rights, would be proper in the event the district court holds such rights are being violated. It is axiomatic that a court has the power to enforce its orders determining the legal rights of the parties. Morrow v. Corbin, 122 Tex. 553 , 62 S.W.2d 641, 644-45 (1933). “Reason and experience argue that courts empowered ... [to decide] constitutional mandates cannot be left without the means to order appropriate relief.” Terrazas v. Ramirez, 829 S.W.2d 712, 718 (Tex.1991). Furthermore, a mandatory injunction could also be proper. See Edgewood Indep. Sch. Dish v. Kirby, 111 S.W.2d 391, 399 (Tex.1989); Edgewood Indep. Sch. Dish v. Kirby, 804 S.W.2d 491, 494 (Tex.1991); Terrazas, 829 S.W.2d at 717-20 . However, courts should tread lightly when dealing with powers traditionally reserved to other areas of government. For example, in Terrazas , although we held that the courts could order apportionment, we were careful to state,

*252 [Tjhat power ought to be used only after investigation and careful consideration of the many, diverse interests affected, after due deference to the Legislature to rectify its own statutes, and after due regard for the effect of the court’s order on the election process.

829 S.W.2d at 718 . Likewise, in Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d at 399, we stated, “Although we have ruled the school financing system to be unconstitutional, we do not now instruct the legislature as to the specifics of the legislation it should enact-”

Moreover, a court should not overstep the line between adjudication and regulation. Regulation of the practice of law is within the exclusive control of this Court. Tex.Gov’t Code Ann. § 81.011(c) (Vernon 1986); Daves v. State Bar, 691 S.W.2d 784, 788-89 (Tex.App.—Amarillo 1985, writ ref'd n.r.e.). An injunction mandating this Court or the State Bar to implement a mandatory pro bono program would be improper. It would inappropriately involve the district court in the regulation of the practice of law. See Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d at 399; Edgewood Indep. Sch. Dist. v. Kirby, 804 S.W.2d at 493-94 . The district court does, however, have jurisdiction to issue a mandatory injunction which requires the State Bar to propose and implement a more effective voluntary pro bono program calculated to meet constitutional and statutory demands which may exist. Id. In addition, the district court would have jurisdiction to issue a mandatory injunction which requires the State Bar to propose regulations creating a mandatory pro bono program to this Court.

Finally the question remains whether this case is nonjustieiable because it alleges constitutional sins of omission. I believe that the Plaintiffs’ complaint that the State Bar has failed to act as required by various constitutional and statutory provisions does not affect the justiciability of them claims. Distinctions between an act and an omission in this context are not helpful. See generally Lisa E. Heinzerling, Note, Actionable Inaction: Section 1983 Liability for Failure to Act, 53 U.CHI.L.REV. 1048, 1057-63 (1986) (criticizing the entire act/omission analysis in the context of governmental responsibilities under the Constitution, primarily because its tort-based reasoning is ill-suited to explain existing doctrine). If this Court concluded that the district court lacked jurisdiction over the Plaintiffs’ claims because they allege an omission rather than an act, the Plaintiffs could simply recast them allegations. Thus, the difference between acts and omissions in this highly unusual context seems semantic. See David A. Fischer, Causation in Fact in Omission Cases, 1992 UTAH L.REV. 1335, 1339 (“[Ajs a matter of semantics, any omission can be characterized as part of a larger encompassing act.”). The mere fact that the Plaintiffs have alleged an unconstitutional omission cannot deprive the district court of jurisdiction when it clearly would have jurisdiction to review an unconstitutional act.

For the foregoing reasons, I respectfully dissent.

. The current pro bono policy was adopted by the State Bar of Texas Board of Directors in May 1992. The policy includes an aspirational goal of fifty (50) hours per year and an annual voluntary pro bono reporting system.

. We need not decide in this case whether Plaintiffs could have proceeded against this Court itself. Like other state courts of last resort, we have been named defendants in district court at least once before. Cameron v. Greenhill, 582 S.W.2d 775 (Tex.1979); see also CWA Local 1044 v. Chief Justice of the Sup. Ct., 118 N.J. 495 , 572 A.2d 613 (1990) (challenging a New Jersey Supreme Court decision made in the course of labor negotiations with its judicial employees); American Trial Lawyers Ass’n v. New Jersey Sup. Ct., 66 N.J. 258, 330 A.2d 350 (1974) (challenging a New Jersey Supreme Court order limiting contingent attorney’s fees in certain tort cases); Vermont Sup. Ct. Admin. Directive No. 17 v. Vermont Sup. Ct., 154 Vt. 217 , 576 A.2d 127 (1990) (challenging a Vermont Supreme Court order postponing civil jury trials due to budgetary shortfalls). But some jurisdictions expressly proscribe suing the state’s highest court. See, e.g., Goetz v. Harrison, 153 Mont. 403 , 457 P.2d 911 (1969) (holding that a lower court has no supervisory control over the Supreme Court and thus cannot entertain a challenge to a Supreme Court rule relating to bar admissions).

. It is unclear whether the Court is creating a "parallel administrative docket” in which interested persons could petition the Court for various forms of relief. Are these “petitioners” entitled to timely consideration of their petition and oral argument? See Barger v. Brock, 535 S.W.2d 337, 342 (Tenn.1976) (“[I]n order that the parties may have their insistences considered, we direct that all pleadings in this cause be delivered to the Clerk of this Court at Nashville forthwith. This Court will treat the pleadings as constituting a motion to vacate or modify Rule 42. This matter will be docketed for oral argument, in Knoxville, at the heel of the calendar on 7 May 1976. Briefs will be filed with the Clerk in Nashville by 23 April 1976. The sole issue before the Court is the constitutionality of Rule 42.”).

. Our lack of an original proceeding may actually be salutary. This Court’s resolution of complex questions concerning the constitutionality of our rules would most likely be enhanced by the fuller development of issues and arguments that usually attend the appellate process.