In re Nevius

174 Ohio St. (N.S.) 560
CourtOhio Supreme Court
DecidedMay 29, 1963
DocketNo. 37675
StatusPublished

This text of 174 Ohio St. (N.S.) 560 (In re Nevius) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Nevius, 174 Ohio St. (N.S.) 560 (Ohio 1963).

Opinion

Griffith, J.

The single issue raised by this appeal is whether the procedure for reinstatement of a disbarred attorney is governed by the procedure in effect- at the time of the disbarment or by the procedure in effect at the time the application for reinstatement is made.

At the time of appellee’s disbarment, Section 1707, General Code (now Section 4705.02, Revised Code, without substantial change), vested jurisdiction in disciplinary proceedings in the Common Pleas Court, the Court of Appeals and the Supreme Court; Section 1709, General Code (now Section 4705.04, Revised Code, without substantial change), also vested jurisdiction in reinstatement proceedings in such courts; and Rule XXVII of the Supreme Court recognized such statutory jurisdiction.

. Section 1709, General Code, provided:

[562]*562“If such, suspended or removed attorney at law shall desire a modification of the decree of suspension or removal, he shall file a written motion therefor in the court which entered such decree. ’ ’

The present disciplinary and reinstatement procedure is governed by Rule XXVII of the Supreme Court, effective January 1, 1957. It is unnecessary to make a detailed analysis of this rule. Rule XXVII provides primarily that all proceedings for the disciplining and reinstatement of attorneys indefinitely suspended shall be governed by the procedure set forth in the rule. Under such rule, the Board of Commissioners on Grievances and Discipline has exclusive original jurisdiction in disciplinary matters. The board conducts hearings, certifies its findings of fact and recommendation to the Supreme Court which, with or without the filing of objections and after a hearing, if requested by the court, may confirm, reject or modify the recommendation and enter such order as it may find proper. As to reinstatement, Rule XXVII provides that an attorney indefinitely suspended from the practice of law may file a petition for reinstatement in the Supreme Court, whereupon the petition shall be referred to the Board of Commissioners on Grievances and Discipline. Upon such referral, the procedure in reinstatement proceedings is governed by the procedure provided for disciplinary proceedings.

It must be noted here that under the present rule an order of disbarment, once made, is absolutely final, and, once entered, cannot be modified by a subsequent application for reinstatement.

The contention of the appellee is that amended Rule XXVII cannot be given retroactive effect, and that Section 4705.04, Revised Code, governs his rights and the procedure for his reinstatement.

It is now well established that the admission to the practice of law and all matters relating to the discipline and reinstatement of attorneys at law are inherently judicial in nature and are exclusively under the control of the judicial branch of the government. Although it is recognized that the legislative branch of the government may by statute provide procedures for the qualification, discipline and reinstatement of .attorneys, such [563]*563statutes are interpreted as an aid to, but may not be a limitation on, the power of the court. In other words, such matters are completely and exclusively under the control of the judiciary. See Cleveland Bar Assn. v. Pleasant, 167 Ohio St., 325; Mahoning Bar Assn. v. Franko, 168 Ohio St., 17; and In re McBride, 164 Ohio St., 419.

Pursuant to such inherent power the Supreme Court promulgated Eule XXVII, effective January 1, 1957, which places all such proceedings under the exclusive jurisdiction of the Board of Commissioners on Grievances and Discipline and the Supreme Court itself.

This rule was found constitutional in Cleveland Bar Assn. v. Pleasant, supra.

In determining the question presently before us, we must consider Sections (4) and (21) of Eule XXVII.

Section (4) provides:

“Prom and after the effective date of this rule, all proceedings for the investigation of complaints and grievances involving alleged misconduct by attorneys and counselors at law and judges, all proceedings for the discipline of such attorneys and counselors at law and judges, and all proceedings for reinstatement as an attorney and counselor at law shall be brought, conducted and disposed of in accordance with the provisions of this rule; provided, however, that nothing herein contained shall be construed to prevent any committee of any regularly organized local bar association or of the Ohio State Bar Association from investigating and reporting on any complaint filed with it, referred to it, considered by it, or coming to its attention. ’ ’

Section (21) provides:

“No petition for reinstatement to the practice of law shall be entertained by this court, and the same may not be filed in this court, within a period of two years after the entry of an order indefinitely suspending the petitioner from the practice of law * * (Emphasis supplied.)

It requires only a cursory examination of those sections to determine that it was the intent of the court that amended Eule XXVII should be applicable to all applications for reinstatement, irrespective of the time the disciplinary order was entered, [564]*564whether before or after the promulgation of the rule. The court was aware that persons were under disbarment at the time the amended rule was promulgated, yet no limitation was placed on the operation thereof, such rule stating that ‘ ‘ all proceedings for reinstatement * * * shall be brought, conducted and disposed of in accordance with the provisions of this rule,” the only exception being in relation to certain pending actions as provided in Section (37) which we will discuss later. The intent of the court that this rule should cover all reinstatement proceedings is clear.

Appellee urges that to give retroactive application to this rule will violate Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from passing retroactive laws. Assuming for the purpose of this opinion, but not deciding that such section is applicable to court rules, it is of no avail to appellee.

In State, ex rel. Slaughter, v. Industrial Commission, 132 Ohio St., 537, the court, in the third paragraph of the syllabus, states:

“Section 28, Article II of the Ohio Constitution, prohibiting the passage of retroactive laws, has application to laws disturbing accrued substantive rights, and has no reference to laws of a remedial nature providing rules of practice, courses of procedure or methods of review.” See, also, State, ex rel. Michaels, v. Morse et al., Industrial Commission, 165 Ohio St., 599, 604, 605, and Hatch, Exrx., v. Tipton, 131 Ohio St., 364, 366, 367.

The matter with which we are concerned in the present case does not relate to any substantive right but is clearly a matter of a remedial nature with respect to a privilege. In re Thatcher, 80 Ohio St., 492. Appellee had no “right” to reinstatement; his only right at the time of his disbarment was to seek reinstatement, and the procedure which he must now follow is that with which we are concerned.

Appellee urges that the court is, by rule, attempting to amend a legislative enactment and cites a number of authorities holding that this cannot be done.

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Related

State, Ex Rel. v. Indus. Comm.
9 N.E.2d 505 (Ohio Supreme Court, 1937)
Hatch, Exrx. v. Tipton
2 N.E.2d 875 (Ohio Supreme Court, 1936)

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Bluebook (online)
174 Ohio St. (N.S.) 560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nevius-ohio-1963.