JAMES W. CHAMBERS V. DAVID STENGEL, IN HIS CAPACITY AS JEFFERSON COUNTY COMMONWEALTH, ATTORNEY; MICHAEL CONLIFFE, IN HIS CAPACITY AS JEFFERSON COUNTY ATTORNEY AND A. B. CHANDLER III, IN HIS CAPACITY AS ATTORNEY GENERAL
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RENDERED: FEBRUARY 22, 2001
TO BE PUBLISHED
2000-SC-0062-CL
JAMES W. CHAMBERS
V.
;
APPELLANT
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NO. 98-6349
DAVID STENGEL, IN HIS CAPACITY
AS JEFFERSON COUNTY COMMONWEALTH,
ATTORNEY; MICHAEL CONLIFFE, IN HIS CAPACITY
AS JEFFERSON COUNTY ATTORNEY AND A. B. CHANDLER III,
IN HIS CAPACITY AS ATTORNEY GENERAL
APPELLEES
CERTIFICATION OF THE LAW BY JUSTICE GRAVES
The Kentucky Constitution provides that the Supreme Court has the sole
authority to regulate and discipline “members of the bar.” see Ky. Const. §116.
However, the Kentucky Constitution does not give the Supreme Court the power to
criminalize lawyer conduct. We certify that the Kentucky General Assembly did not
violate separation-of-powers principles by enacting KRS 3s 21A.300 and 21A.310(1),
which impose criminal sanctions on practicing attorneys who solicit accident or disaster
victims by direct mail within 30 days of the event.
This case comes to this Court on a request for a certification of law from the
United States Court of Appeals for the Sixth Circuit. Appellant, James W. Chambers, a
Kentucky personal injury attorney, brought a civil action against his local County and
Commonwealth Attorneys in United States District Court for the Western District of
Kentucky seeking declaratory and injunctive relief from the aforementioned statutes,
which impose misdemeanor criminal sanctions for attorneys who solicit accident or
disaster victims by mail within thirty days of the accident or disaster. Appellant had
engaged in such direct mail solicitation prior to the enactment of said statutes.
In his federal suit, Appellant alleged that the statutes violated his First
Amendment right to freedom of speech and his Fourteenth Amendment rights to equal
protection and due process of law. He asserted corresponding state law claims, as well
as allegations that the statutes violate the principle of separation of powers. The federal
District Court allowed the Kentucky Attorney General to intervene because the action
challenged the constitutionality of the General Assembly’s act. The Attorney General
conceded that certain parts of the statutes infringed upon protected First Amendment
constitutional activities, namely solicitation within thirty days of the filing of a civil
lawsuit, criminal charges, or a traffic citation. Therefore, the court entered a partial
agreed judgment regarding the provisions. As to the remaining provisions concerning
accident and disaster victims, the parties filed cross-motions for summary judgment.
The federal court granted summary judgment in favor of the Attorney General, rejecting
Appellant’s federal constitutional claims and dismissing without prejudice Appellant’s
state claims. Appellant appealed to the United States Court of Appeals for the Sixth
Circuit, which, following briefing and oral argument, issued an order requesting
certification of Appellant’s state separation-of-powers claim to this Court.
Appellant argues that the drafters of the state constitution made political choices
as to the allocation of power among the government’s three branches, and one of these
choices was to give the Supreme Court exclusive authority over the bench and bar.
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Indeed, we affirmed the basic proposition that the Court has authority over admission to
and discipline of members of the bar in Ex Parte Auditor of Public Accounts, KY., 609
S.W.2d 682, 683-84 (1980), when we stated, “There can be no doubt that this
constitutional amendment completely removed the subject from any legislative authority
and rendered obsolete and ineffective statutes pertaining to it.” Furthermore, Appellant
points out that this Court has declared unconstitutional the General Assembly’s
attempts to legislate aspects of legal practice, procedure, admission or discipline.’
However, Appellant misses the distinction between governing the admissions
and ethical conduct of attorneys, which Ky. Const. §I 16 addresses, and the imposition
of criminal sanctions. While it is true that the cases Appellant cites reflect this Court’s
refusal to permit the General Assembly to regulate procedural aspects of the practice of
law, none of the cases speak directly to the General Assembly’s right to define and
provide sanctions for criminal conduct, a power securely within its province. It is on this
basis that Appellant’s arguments fail.
Pursuant to its police power, the General Assembly may enact legislation to
protect the Commonwealth’s citizens’ health and welfare, and any such statute is
presumed to be constitutional if it appears that the provisions have a substantial
tendency to provide such protections.
See Moore v. Northern Kentucky Independent
Food Dealers Ass’n, Ky., 149 S.W.2d 755 (1941). In this instance, the General
’ See Turner v. Kentuckv Bar Ass’n, Ky., 980 S.W.2d 560 (1988)(statute allowing nonlawyers to
represent workers’ compensation claimants); Foster v. Overstreet, Ky., 905 S.W.2d 504 (1995)(statute
providing for chief justice’s review of denial of recusal motion); O’Btyan v. Hedoesoeth. Ky., 892 S.W.2d
571 (1995)(statute allowing collateral source payments into evidence); Drumm v. Commonwealth, Ky.,
783 S.W.2d 380 (1990)(statute permitting admission of hearsay evidence of abused children);
Commonwealth v. Reneer, Ky., 734 S.W.2d 794 (1987)(truth-in-sentencing statute); Gaines v.
Commonwealth, Ky., 728 S.W.2d. 525 (1987)(statute permitting abused children’s videotaped, out-ofcourt, unsworn testimony); Smothers v. Lewis, Ky., 672 S.W.2d 62 (1984)(statute prohibiting court
challenges to alcoholic beverage license revocation hearings during administrative appeal); Ex Parte
Auditor, suora, (statutes regulating Kentucky Bar Ass’n admission.).
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Assembly was responding to a public outcry against the practices of immediate
solicitation, which it found caused further emotional harm to the accident and disaster
victims receiving such mailings. The evidentiary record, which the federal court
considered in upholding the constitutionality of the statutes in this case, included
affidavits from recipients of such mailings and a survey conducted among state
residents which showed, inter alia, that 74.5 percent of those surveyed found direct mail
solicitation following an automobile accident to be an invasion of privacy. The survey
also indicated strong support for increased regulation of and restrictions on attorney
advertising and solicitation, especially solicitation following an injury, accident or
disaster. The General Assembly is within its police power to respond to such a harm
through legislation.
Furthermore, these are not the first statutes that provide criminal sanctions for
activities involving the practice of law. KRS 524.130 provides a penalty for the
unauthorized practice of law. Courts of other jurisdictions having faced this question in
the same context, have affirmed such legislation in the area of unauthorized practice as
an aid to the courts, which does not add or detract from the courts’ power.2
As the
court in Rhode Island Bar Ass’n v. Automobile Service Ass’n., 179 A.139, 141 (R.I.
1935) noted, while the arms of government are separate and distinct, they may regulate
or govern the same conduct. Also, we previously stated in Baker v. Commonwealth.,
Ky., 677 S.W.2d 876, 879 (1984), (overruled on other arounds, Shannon v.
Commonwealth., Ky., 767 S.W.2d 548 (1988) that “[t]he enactment of a statute
defining the elements of a crime is a legislative matter. . . .”
’ See In re Baker, et. al., 85 A.2d 505, 513 (N.J. 1951); In Peoole ex rel. Chicaao Bar Ass’n v.
Goodman, 8 N.E.2d 941, 944 (III. 1937); Rhode Island Bar Ass’n v. Automobile Service Ass’n. ’l79A. 139, 141 (R.I. 1935). Denver Bar Ass’n v. Public Utilities,391 P.2d 467, 470 (Col. 1964).
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As a more practical matter, KRS 21A.300 and KRS 21A.310(1) allow Kentucky to
protect its citizens from practices deemed offensive by both in-state and out-of-state
attorneys. If regulation were left solely to this Court, our reach would only cover
Kentucky attorneys, leaving out-of-state attorneys and their non-lawyer agents free to
solicit our citizens in claims under the Federal Employers’ Liability Act, which covers
individuals hurt on railroads, as well as the Jones’ Act, which covers individuals injured
on inland waterways, Even though the accident may have occurred in Kentucky,
railroad and river injury claims may be brought in several different venues outside of
Kentucky. The disciplinary authority of this Court not only is inadequate to protect our
citizens from unwanted out-of-state solicitation, but also Kentucky attorneys may be at a
competitive disadvantage of being prohibited from contacting injured persons while
attorneys from neighboring states have free reign to solicit.
In upholding the constitutionality of these statutes, we find that the General
Assembly enacted a valid exercise of police power which protects both Kentuckians
and Kentucky lawyers from predatory activity. This Court retains the power to discipline
Kentucky attorneys who are convicted under these statutes just as we have the power
to discipline Kentucky attorneys who violate any other statute.
Lambert,
C.J., Cooper, Graves, Keller, and Wintersheimer, J.J., concur.
Johnstone, J., dissents in a separate opinion in which Stumbo, J., joins.
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‘*
RENDERED: FEBRUARY 22,200l
TO BE PUBLISHED
2000-SC-0062-CL
JAMES W. CHAMBERS
APPELLANT
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NO. 98-6349
V.
DAVID STENGEL, IN HIS CAPACITY
AS JEFFERSON COUNTY COMMONWEALTH
ATTORNEY; MICHAEL CONLIFFE, IN HIS
CAPACITY AS JEFFERSON COUNTY
ATTORNEY; AND A. B. CHANDLER III,
IN HIS CAPACITY AS ATTORNEY GENERAL
APPELLEES
DISSENTING OPINION BY JUSTICE JOHNSTONE
Respectfully, I dissent. In my opinion, there is no doubt that the legislature’s
attempt to criminalize the solicitation by lawyers of victims of accidents or disasters
within thirty (30) days of the event violates long-standing principles of the separation of
powers doctrine.
The framers of Kentucky’s constitution were careful to include express sections
relating to the separation of powers. Specifically, they provide:
Section 27. Powers of government divided among legislative,
executive, and judicial departments. The powers of the government of
the Commonwealth of Kentucky shall be divided into three distinct
departments, and each of them be confined to a separate body of
magistracy, to wit: Those which are legislative, to one; those which are
executive, to another; and those which are judicial, to another.
Section 28. One department not to exercise power belonging
to another. No person or collection of persons, being of one of those
departments, shall exercise any power properly belonging to either of the
others, except in the instances hereinafter expressly directed or permitted.
As we stated in Legislative Research Commission v. Brown, Ky., 664 S.W.2d
907 (1984):
Our present constitution contains explicit provisions which, on the one
hand, mandate separation among the three branches of government, and
on the other hand, specifically prohibit incursion of one branch of
government into the powers and functions of the others. Thus, our
constitution has a double-barreled, positive-negative approach.
Id. at 912 (emphasis in original).
Further, our 1891 constitution, as amended by the citizens of this
Commonwealth in 1975, provides the following in Section 116:
The Supreme Court shall have the power to prescribe rules governing its
appellate jurisdiction, rules for the appointment of commissioners and
other court personnel, and rules of practice and procedure for the Court of
Justice. The Supreme Court shall. by rule, govern admission to the bar
and the discioline of members of the bar.
Emphasis added.
Thus, it is clear that the constitutional framework of Kentucky empowers the
Supreme Court to govern all matters related to, inter alia, the discipline of members of
the bar. Indeed, the majority sets out several cases in which we have held
unconstitutional various attempts to legislate aspects of legal practice, procedure,
admission, or discipline.
Perplexing, then, is the majority’s attempt to distinguish discipline imposed by
this Court and that imposed by the legislature in the form of statutory criminal sanctions
by referring to the General Assembly’s police power. No authority is cited that would
allow one “department” of our government to exercise any power properly belonging to
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either of the others in the name of its police power. Nor is there solace to be found in
KRS 524.130, which provides a penalty for the unauthorized practice of law. That
statute expressly applies to persons practicing law “without a license issued by the
Supreme Court,” not to members of our bar.
I greatly respect the General Assembly and its many valiant efforts to serve the
citizens of Kentucky.
We have long deferred to the policy making responsibility of our
legislators. We frustrate legislative policy and intent only if laws enacted by the General
Assembly violate the constitution. However, the judiciary likewise has the responsibility
to respect and uphold the rules of law so admirably set out by the framers of our
constitution. One of the most fundamental of those rules is the doctrine of the
separation of powers among co-equal branches of our government. If we fail in that
responsibility, we fail in our obligation to the judiciary and the citizens of this
Commonwealth.
We may be rightly offended, as was the General Assembly, in the public’s outcry
against the particular lawyer solicitation that the statute was drafted to preclude.
However, the power to effect discipline to the members of the Kentucky bar lies solely
within judicial boundaries. And, as eloquently stated by then Chief Justice John S.
Palmore,
in Ex Parte Auditor of Public Accounts, Ky., 609 S.W.2d 682, 687 (1980)
“Experience teaches that a boundary not guarded will in time be lost.”
Stumbo, J., joins this dissenting opinion.
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