State of Ga. v. McMillan

Smith, Justice.

I concur in the result reached in Divisions 1, 2, and 5 of Chief Justice Hill’s opinion, but write separately in order to state the majority’s views concerning the prohibition on the practice of law by retired superior court judges found at OCGA § 47-9-60. Five Justices of this court believe that, regardless of its due process implications, the statute is an unconstitutional infringement on this court’s inherent and exclusive power to regulate the practice of law in this state. We therefore hold, as did the court below, that the prohibition violates the doctrine of separation of powers and is invalid, both as to early retirees and as to those trial judges who have accrued full retirement benefits.

“This court has the authority and in fact the duty to regulate the law practice and in the past two decades we have been diligent in our exercise of this duty.” First Bank &c. Co. v. Zagoria, 250 Ga. 844, 845 (302 SE2d 674) (1983). “That the courts possess certain inherent powers, is a proposition which, so far as we know, has never been questioned. [Cits.] This means, then, when the constitution declares that the legislative, judicial, and executive powers shall forever remain separate and distinct [cit.], it thereby invests those officials charged with the duty of administering justice according to law with all necessary authority to efficiently and completely discharge those duties the performance of which is by the constitution committed to the judiciary, and to maintain the dignity and independence of the courts.” Lovett v. Sandersville R. Co., 199 Ga. 238, 239 (33 SE2d 905) (1945). “[T]he judiciary [can] not be circumscribed or restricted in the performance of its duties related to its inherent power to regulate the practice of law. It is the duty of this court to reject legislative attempts to interfere with the exercise of its judicial powers.” Sams v. Olah, 225 Ga. 497, 501 (169 SE2d 790) (1969). Clearly the statute at issue here constitutes an attempt by the General Assembly to regulate the legal profession. It provides that, in order to receive retirement benefits, retiring superior court judges must “request and accept” appointment to senior judge status. Once appointed, a senior judge “may not practice law,” OCGA § 47-9-60. By depriving a person of his right to practice law unless he meets certain legislatively-prescribed conditions, the statute regulates, and indeed prohibits, the practice of law by superior court judges. Accord Attorney General of Md. v. Waldron, 426 A2d 929, 932 (Md. 1981).

This court has previously recognized that the legislature may legitimately pass an act recommending the creation of a state bar, Wallace v. Wallace, 225 Ga. 102 (166 SE2d 718) (1969); Sams v. Olah, supra, or punish as a crime the unauthorized practice of law, Huber v. State, 234 Ga. 357 (216 SE2d 73) (1975), but we have steadfastly maintained that “[m]atters relating to the practice of law, including the admission of practitioners, their discipline, suspension, and removal, are within the inherent and exclusive power of the Supreme Court of Georgia.” Carpenter v. State, 250 Ga. 177 (297 SE2d 16) (1982). Further evidence of this court’s exercise of control over the law practice of senior judges can be found at paragraph S-8 of the Rules for Service of Senior Judges, as approved by this court and effective September 1, 1983: “In view of the foregoing limitations upon service and compensation of senior judges, senior judges may elect to declare themselves ineligible to servé as judges and to engage in the private practice of law if and when authorized by law. Such election shall be made in writing delivered to the Supreme Court. Senior judges electing to practice law shall be entitled to draw their earned retirement pay but shall not be entitled to additional compensation for serving as judges. A senior judge who has elected to practice law shall not thereafter be eligible to serve as a judge except upon petition showing good cause to and with the approval of the Supreme Court. Having once been reinstated as eligible to serve as judge by the Supreme Court, no second such petition shall be granted by the Court.

“No judge shall call upon any senior judge to serve who is exercising the right to practice law and no senior judge who is exercising the right to practice law shall agree to serve as a judge.”

Decided July 6, 1984. Michael J. Bowers, Attorney General, Carl C. Jones, Senior Assistant Attorney General, for appellant. Spivey, Carlton & Edenfield, J. Franklin Edenfield, for appellees.

In light of our history of exclusive regulation of the practice of law and, specifically, regulation of the law practice of senior judges, any attempt to legislate in this area violates the doctrine of separation of powers and is void. See 1983 Ga. Const., Art. I, Sec. II, Par. III. Other states have so held under similar circumstances. See In re The Florida Bar, 281 S2d 21 (Fla. 1973); Archer v. Ogden, 600 P2d 1223 (Okl. 1979); Attorney Gen. of Md. v. Waldron, 426 A2d 929, supra; State v. Barlow, 131 Neb. 294 (268 NW 95) (1936); Wajert v. State Ethics Comm., 491 Pa. 255 (420 A2d 439) (1980); Matter of Washington State Bar Assn., 86 Wash.2d 624 (548 P2d 310) (1976).

We conclude that the prohibition on the practice of law by retired superior court judges is void, regardless of the length of service of those judges or their accrued benefits. In his opinion, Chief Justice Hill distinguishes between “early” and “full” retirees, holding that “early” retirees may constitutionally be prohibited from practicing law; but no principled reason for the distinction appears, either on the face of the statute or in his opinion. If, as the Chief Justice asserts, “maintaining a pool of senior judges available to assist active judges” is not a sufficient reason to justify intrusion on the personal liberty and property rights of those judges who retire with full benefits at age 65 or older, how can the same state interest justify an identical intrusion on the rights of those under 65, who have accrued fewer retirement benefits and, presumably, are more needful of returning to the active practice of law?

The trial court correctly ruled that the broad prohibition of the statute unfairly and unconstitutionally deprives all retired superior court judges of their right to earn a livelihood by practicing law.

Judgment affirmed.

All the Justices concur in Justice Smith’s opinion, except Hill, C. J., and Marshall, P. J., who dissent for the reasons stated in Division 4 of the opinion by Hill, C. J.