Kenneth L. Storey v. Randall E. Nichols , 2000 Tenn. LEXIS 218 ( 2000 )

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
KENNETH L. STOREY v. RANDALL E. NICHOLS, ET AL.
Appeal as of Right from the Chancery Court for Knox County
No. 135462-2 David Cate, Chancellor
No. E1998-00851-SC-R3-CV - Decided May 1, 2000
FOR PUBLICATION
The dispositive issue in this case is whether an appeal as of right from a trial court’s
judgment in an attorney-disciplinary proceeding initiated pursuant to Tenn. Code Ann.
§§ 23-3-201–2041 lies in the Court of Appeals or in the Supreme Court. Because we hold that
jurisdiction over an appeal as of right in a statutory disciplinary proceeding lies in the Court of
Appeals, we reverse the intermediate appellate court’s order transferring the case to the Supreme
Court, and we transfer the case to the Court of Appeals for its review on the merits.
Tenn. R. App. P. 3; Transfer Order of the Court of Appeals Reversed; Case Transferred to
Court of Appeals
HOLDER , J., delivered the opinion of the court, in which ANDERSON, C.J., and DROWOTA , BIRCH and
BARKER, JJ., joined.
Kenneth L. Storey, Henning, Tennessee, Pro Se
1
Tenn. Code Ann. § 23-3-201 provides in pertinent part:
Grounds for disbarment or discipline.-- Any attorney, solicitor or
counselor at law admitted to practice in the courts of the state may be
disbarred or suspended from the practice of law who:
(1) Commits, or may have committed, any infamous crime or
misdemeanor involving moral turpitude;
...
(5) Is guilty of any unprofessional conduct, dishonesty, malpractice
or any conduct which renders such person unfit to be a member of the
bar.
Tenn. Code Ann. § 23-3-202(a) provides in pertinent part: “[p]roceedings may be instituted
in any circuit, chancery, or criminal court . . . by petition duly verified and sworn to by . . . [an]
individual aggrieved by the act or conduct of such attorney.”
Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and
Meredith DeVault, Senior Counsel, for the Appellees, Randall E. Nichols, et al.
OPINION
The plaintiff, Kenneth L. Storey, is currently incarcerated for a conviction of aggravated rape.
On August 29, 1997, he filed a "petition for disciplinary proceedings pursuant to T.C.A.
§§ 23-3-201, 23-3-202, and conspiracy to obstruct justice, negligent misrepresentation, defamation
of character in violation of plaintiff's constitutional rights to due process and equal protection of the
law, and R.I.C.O. Act 18 U.S.C.A. § 1961."
Storey's petition named as defendants the State's attorneys who prosecuted his aggravated
rape case. The petition alleged that District Attorney General Randall E. Nichols, former Assistant
District Attorney General Greg Harrison, and Assistant District Attorney General Charles E. Cerney
were guilty of criminal conspiracy, prosecutorial misconduct, and violations of Tenn. R. Sup. Ct.
9. The petition demanded a jury trial and sought monetary relief. The petition also sought an
injunction barring further prosecution of Storey during the pendency of his complaint for
disciplinary proceedings and an injunction barring the defendants from further "interfering with,
preventing, thwarting the plaintiff and any other accused in reiceiving [sic] their due justice from the
courts guaranteed by the federal and state constitutions and pursuant to T.C.A. § 23-3-201 and
23-3-202."
The defendants filed a motion to dismiss and/or for summary judgment. The motion alleged
the following grounds: that the trial court lacked jurisdiction over the alleged criminal violations;
that the complaint failed to allege a basis for institution of disciplinary proceedings under Tenn.
Code Ann. § 23-3-201 et seq.; that prosecutorial immunity barred a 42 U.S.C. § 1983 claim for
monetary relief; that the requested injunctive relief was moot; that the defendants were protected by
absolute immunity under Tenn. Code Ann. § 9-8-307; and that the complaint lacked merit. The trial
court granted a summary judgment to the defendants.
Storey filed a pro se Notice of Appeal in which he stated that he "hereby appeals to the
Tennessee Supreme Court, pursuant to Rule 9, §§ 1.3 and 1.4." Notwithstanding the language of
the Notice of Appeal, the appellate court clerk's office filed the appeal in the Court of Appeals.
Storey filed a "petition for retransfer of appeal to the Supreme Court pursuant to Rule 9, § 1.3 and
§ 1.5." The Court of Appeals entered an order granting Storey’s petition and transferred the case to
this Court.
ANALYSIS
There are two methods for an individual to initiate a disciplinary proceeding against an
attorney in Tennessee. The first is governed by Tenn. R. Sup. Ct. 9 and is a disciplinary proceeding
brought before the Board of Professional Responsibility. The second method is governed by Tenn.
Code Ann. §§ 23-3-201–204 and consists of a statutory disciplinary proceeding filed in state court.
See Ex Parte Chattanooga Bar Ass’n, 566 S.W.2d 880, 884 (Tenn. 1978) (stating that while not “an
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alternative disciplinary procedure for use by any bar association or bar committee[,] [a]ny individual
aggrieved by the act or conduct of an attorney may avail himself of the statute, or of course may file
his complaint with the disciplinary counsel.”); Chapdelaine v. Haile, 548 S.W.2d 656, 658-59 (Tenn.
1977) (stating that Rule 42–now Rule 9–was not intended to supplant the statutory proceeding). The
pending proceeding was filed in chancery court pursuant to Tenn. Code Ann. §§ 23-3-201–204.2
As for the first method (a disciplinary proceeding pursuant to Rule 9), the manner for
appealing the trial court’s decision is set out in Rule 9, § 1.3, which provides:
Either party dissatisfied with the decree of the circuit or chancery
court may prosecute an appeal direct [sic] to the Supreme Court . . . .
Prior decisions of this Court holding that appeal of disciplinary
proceedings must be taken to the Court of Appeals because T.C.A.
§ 16-4-108 so requires are expressly overruled.
Tenn. R. Sup Ct. 9.
Based upon the preceding quotation, one might conclude that Rule 9, § 1.3 governs appeals
in both types of attorney-discipline proceedings. However, read in the overall context of Rule 9, that
appeal provision only applies to proceedings brought before the Board of Professional Responsibility
pursuant to the rule. The appeal procedure stated in Rule 9 does not apply to the appeal of a
statutory disciplinary proceeding. To determine the proper procedure for appealing a statutory
disciplinary proceeding, we must turn to § 23-3-204 and the case law construing that statute.
Tennessee Code Annotated § 23-3-204 provides that “[i]n all proceedings either party may
except to the judgment of the trial court, and may prosecute an appeal to the supreme court." On its
face, § 23-3-204 clearly appears to provide for a direct appeal to the Supreme Court. However, in
Memphis & Shelby County Bar Ass’n v. Himmelstein, 165 Tenn. 102, 53 S.W.2d 378 (Tenn. 1932),
the Court held that, notwithstanding Code 1932, § 9977 (now Tenn. Code Ann. § 23-3-204), an
appeal of a statutory disciplinary proceeding properly lies in the Court of Appeals pursuant to Code
1932, § 10618 (now Tenn. Code Ann. § 16-4-108).
Himmelstein was a statutory disciplinary proceeding in which the defendant-attorney had
been suspended from the practice of law and had appealed directly to the Supreme Court. The
plaintiff filed a motion to transfer the case to the Court of Appeals. In response, the defendant-
attorney apparently argued that “section 9977" (now Tenn. Code Ann. § 23-3-204) provided a direct
appeal to the Supreme Court.
2
In his pro se pleadings, the plaintiff cited both Rule 9 and the statute (§§ 23-3-201–204) as
bases for his claims. However, as stated above, these are alternative methods for initiating a
disciplinary proceeding. Because he filed this proceeding in state court rather than before the Board
of Professional Responsibility, we consider it as a statutory disciplinary proceeding.
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The Court rejected the defendant’s argument. The Court first noted that “[p]rior to the
adoption of the Code of 1932, jurisdiction of appeals in such cases was clearly in the Court of
Appeals.” The Court then noted that although “section 9977" had been reenacted in the 1932 Code,
“section 10618" (now Tenn. Code Ann. § 16-4-108(a)(1)) had also been reenacted in the 1932 Code.3
In granting the plaintiff’s motion to transfer the case to the Court of Appeals, the Supreme Court
stated:
[T]he Code includes these two acts without material change, and
accordingly it must be held that the Code embodied these acts as they
had been previously construed.
Moreover, section 13 of the Code provides: "If provisions of
different chapters or articles of the Code appear to contravene each
other, the provisions of each chapter or article shall prevail as to all
matters and questions growing out of the subject matter of that
chapter or article." The matter or question before us is the
jurisdiction of the Court of Appeals, and that is the subject-matter of
section 10618 of the Code. That section accordingly prevails under
the apparently contradictory provision of section 9977 of the Code,
the subject-matter of which is the right of appeal of an attorney
against whom disbarment proceedings have been instituted.
Himmelstein, 165 Tenn. at 102 , 53 S.W.2d at 378. See also Hamby v. McDaniel, 559 S.W.2d 774,
776 (Tenn. 1977) (stating that “the fact that the legislature has not expressed disapproval of a judicial
construction of a statute is persuasive evidence of legislative adoption of the judicial construction,
especially . . . where the law . . . is reenacted without change in the part construed.”).
Himmelstein controls the result in the pending case. Although Tenn. Code Ann. § 23-3-204
appears to provide for a direct appeal to the Supreme Court, the reenactment of § 23-3-204 (then
“section 9977") in the 1932 Code (and in subsequent codes) must be read in light of the courts’ prior
construction of the statute. Under Himmelstein, an appeal as of right from the trial court’s decision
in a statutory disciplinary proceeding must be taken to the Court of Appeals.
3
As quoted in Himmelstein, section 10618 provided: “The jurisdiction of the court of appeals
. . . shall extend to all civil cases except those involving constitutional questions, the right to hold
public office, workmen’s compensation, state revenue, mandamus, in the nature of quo warranto,
ouster, habeas corpus, and excepting cases which have been finally determined in the lower court
on demurrer or other method not involving a review or determination of the facts, or in which all the
facts have been stipulated.” Himmelstein, 165 Tenn. at 102, 53 S.W.2d at 378. The current version
of this statute, Tenn. Code Ann. § 16-4-108(a)(1), provides: “The jurisdiction of the court of appeals
is appellate only, and extends to all civil cases except workers' compensation cases and appeals
pursuant to § 37-10-304(g).”
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CONCLUSION
The Court of Appeals has appellate jurisdiction over appeals as of right from attorney-
discipline proceedings initiated pursuant to Tenn. Code Ann. §§ 23-3-201–204. The Court of
Appeals therefore erred in transferring this appeal to the Supreme Court. We transfer the case to the
Court of Appeals for its review on the merits.
We note for the benefit of the Court of Appeals that we appointed counsel to represent the
pro se appellant. However, the appellant subsequently moved to disqualify his appointed counsel,
and the Court granted the motion. As a result, the appellant is proceeding pro se.
The taxing of costs pertaining to the “petition to retransfer” shall await and be included in
the final taxing of costs.
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