Denver Bar Association v. Public Utilities Commission

391 P.2d 467, 154 Colo. 273, 13 A.L.R. 3d 799, 1964 Colo. LEXIS 429
CourtSupreme Court of Colorado
DecidedMarch 2, 1964
Docket20256
StatusPublished
Cited by56 cases

This text of 391 P.2d 467 (Denver Bar Association v. Public Utilities Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Denver Bar Association v. Public Utilities Commission, 391 P.2d 467, 154 Colo. 273, 13 A.L.R. 3d 799, 1964 Colo. LEXIS 429 (Colo. 1964).

Opinions

Mr. Justice Frantz

delivered the opinion of the Court.

This case involves the question whether lay persons can practice before the Colorado Public Utilities Com[275]*275mission. The question arose originally before the Commission in hearings conducted by it concerning proposed rules of practice and procedure being considered for adoption. There the Denver and the Colorado Bar Associations, and an attorney, for himself and others, challenged the authority of the Commission to adopt Rule 7 .(b), permitting lay persons to act in a representative capacity before that body. Such rule, they asserted, would constitute a usurpation of power vested in the Supreme Court which, alone, has the authority to say who shall and who shall not practice law in this state.

After a consideration of the problem thus presented, the Commission adopted the proposed rules, including the controversial Rule 7 (b). Further administrative process proved ineffectual. The challenge to the Commission’s authority to adopt Rule 7 (b) was renewed in certiorari proceedings in the district court in Denver. Since the Commission “is not a court of record,” the trial court determined that appearances before it do not constitute the practice of law, and hence, that Rule 7 (b) was valid. Its judgment is brought in question by this writ of error.

Rule 7 (b) provides:

“(b) Who May Represent Parties. Appearances and representation of parties shall be made as follows:

“(1) An individual may appear and be heard in his own behalf.

“ (2) A co-partnership may appear and be represented by a co-partner.

“ (3) A corporation may appear and be represented by a corporate officer or full-time employee of such corporation.

“(4) A municipal corporation may appear and be represented by a duly authorized officer, agent, or employee of such municipality.

“(5) An unincorporated association may appear and be represented by any bona fide or full-time employee of such association.

[276]*276“(6) Any party to a proceeding may appear and be represented therein by an attorney-at-law, duly admitted to practice and in good standing, before the Supreme Court of the State of Colorado, and in rate matters, any party may be represented by a practitioner duly admitted to practice before the Interstate Commerce Commission; provided, however, an attorney-at-law, duly admitted to practice before the highest tribunal of a foreign state may appear in proceedings before the Commission if joined of record by duly admitted Colorado counsel.”

In 1937 Oppenheimer made the following graphic observation in his essay, “The Supreme Court and Administrative Law,” 37 Col. L. Rev. 1:

“More people, it is believed, are directly affected by the processes of administrative boards and quasi-judicial tribunals than by adjudications of the courts. Justice, to the majority of our population, is more apt to mean the fairness of an old age pension or unemployment insurance board than the soundness of a judicial pronouncement. The carfare fixed by a public utility commission or the treatment accorded by a workmen’s compensation or old age pension board directly affects the average man, in his own belief, more than the decisions of the Supreme Court.

“This transfer of so much of the functioning of legal machinery to administrative boards is the vital fact of modern jurisprudence.”

That which was belief in 1937 has become certainty in the last few decades. As a consequence, the burgeoning growth of administrative law has now shifted “inquiry from the question of the desirability of administrative law to that of control.” Geer v. Stathopulos, 135 Colo. 146, 309 P. (2d) 606.

This Court defers to the concept of the separation of powers of government. Whatever the Commission may do as an arm of the legislature of the state this Court shall readily recognize and uphold. And this Court pre[277]*277sumes that the legislature had no intention of infringing upon the Court’s authority when it directed the Commission to adopt rules and regulations for the conduct of the Commission’s business. C.R.S. ’53, 115-6-1. See Sullivan v. Michigan State Board of Dentistry, 268 Mich. 427, 256 N.W. 471.

Article III of the Constitution of Colorado distributes the powers of government among “three distinct departments, — the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.” Any exception to the distribution of powers must appear in express terms in the Constitution; implied exceptions are not sanctioned; this is the plain meaning of Article III.

This Court has the exclusive power to define and regulate the practice of law by virtue of this constitutional provision; there is no authority in these respects in the legislative or executive departments. Clark v. Austin, 340 Mo. 467, 101 S.W. (2d) 977; In re Day, 181 Ill. 73, 54 N.E. 646, 50 L.R.A. 519. See Kolkman v. People, 89 Colo. 8, 300 Pac. 575.

In the determination of the qualifications for admission of persons to practice law, and in the regulation and discipline of those licensed to practice law, this Court is vested by the people through the Constitution with the sole power to act. Legislation in any of these areas does not add to or detract from the exclusive authority of this Court. Wherever legislation conforms to our authority, it is gratuitous. Legislation tending to limit the scope of that which constitutes the practice of law would be abortive. In re Day, supra; People v. Goodman, 366 Ill. 346, 8 N.E. (2d) 941, 111 A.L.R. 1; Clark v. Austin, supra; State v. Keller, 16 Wis. (2d) 377, 114 N.W. (2d) 796.

Article XXV of the Colorado Constitution does not [278]*278create a fourth department of government with dominion over the • practice of law. It is nothing more than a constitutional extension of the power of the legislature over public utilities. It reads as follows:

“In addition to the.powers now vested in the General Assembly of the State of Colorado, all power to regulate the facilities, service and rates and charges therefor, including facilities and service and rates and charges therefor within home rule cities and home rule towns, of every corporation, individual, or association of individuals, wheresoever situate or operating within the State of Colorado, whether within or without a home rule city or home rule town, as a public utility, as presently or as may hereafter be defined as a public utility by the laws of the State of Colorado, is hereby vested in such agency of the State of Colorado as the General Assembly shall by law designate.

“Until such time as the General Assembly may otherwise designate, said authority shall be vested in the Public Utilities Commission of the State of Colorado; provided, however, nothing herein shall affect the power of municipalities to exercise reasonable police and licensing powers, nor their power to grant franchises; and provided, further, that nothing herein shall be construed to apply to municipally owned utilities.”

There is no express language in Article XXV which derogates from the authority of this Court to define and regulate the practice of law.

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Bluebook (online)
391 P.2d 467, 154 Colo. 273, 13 A.L.R. 3d 799, 1964 Colo. LEXIS 429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/denver-bar-association-v-public-utilities-commission-colo-1964.