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In re Schwenke2/24/2004
y ago,
[T]he Legislature [cannot] limit the courts in their rights to determine the moral qualifications of their officers or prevent them from refusing to admit morally incompetent persons to practice, [or] compel them to retain such upon the roll.... The courts, and not juries or legislators, must ultimately determine the qualifications and fitness of their officers.
Ruckenbrod v. Mullins, 102 Utah 548, 559, 133 P.2d 325, 330 (1943) (quoting In re Platz, 42 Utah 439, 132 P. 390, 392 (1913)). This is true because, while other licensed professionals "may sell their time and skill to the public by virtue of their license from the state," only an attorney has the "right to set the judicial machinery in motion in behalf of another and to thus participate as an officer of the court in a judicial proceeding.... To properly function it is necessary that courts retain control of their officers." Ruckenbrod, 102 Utah at 558-59, 133 P.2d at 330.
**36 Far from contradicting the separation of powers doctrine, this authority given to the court is entirely consistent with it. As expressed by a Florida federal district court, "[T]he doctrine of separation of powers mandates that in order for the system of checks and balances to be effective, each co-equal branch of government--executive, legislative, and judicial--must remain independent." Ippolito v. Florida, 824 F.Supp. 1562, 1570 (M.D.Fla.1993). Thus, "[i]mplicit in the separation of powers doctrine ... is the notion that a truly independent and separate judiciary must be able to prescribe rules and govern the conduct of members and nonmembers who practice law." Id.
CONCLUSION
**37 The procedures and standards specified in the RGA and the RLDD are not inconsistent, and both bodies of rules necessarily apply to a previously disbarred attorney seeking readmission to the Bar. In this case, the Bar properly complied with the RGA in evaluating Schwenke's fitness to sit for the bar examination and to practice law. The district court likewise properly complied with rule 25 of the RLDD in considering the Committee's Recommendation, refusing to abate any of the requirements for readmission, and ultimately denying Schwenke's petition for readmission. The court also abided by the procedural requirements of the rule by accepting the OPC's Opposition as timely and scheduling a hearing on the matter. Schwenke does not raise any viable constitutional arguments on appeal.
**38 Therefore, the order of the district court denying Schwenke's petition for readmission is affirmed.
**39 Chief Justice DURHAM, Justice WILKINS, Justice PARRISH, and Justice NEHRING concur in Associate Chief Justice DURRANT's opinion.
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