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Chambers v. Stengel3/15/2001
RENDERED: FEBRUARY 22, 2001
TO BE PUBLISHED
CERTIFICATION OF THE LAW
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.
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
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