The single first-impression issue here is whether the Supreme Court — the state government's organ acting in both the legislative and adjudicative capacity when exercising its constitutionally-derived responsibility for the control and regulation of the practice of law and for the licensing and
We hold that the exercise of power sought to be invoked — to command a second re-investigation of the grievance — is inconsistent with this court's constitutionally mandated duty to act as the state's sole and final tribunal for adjudication of disciplinary bar charges.
Plaintiff [Tweedy] lodged with the state bar agency a disciplinary grievance against three legal practitioners.
DUE PROCESS LIMITS UPON A JUDICIAL TRIBUNAL'S EXERCISE OF PROSECUTORIAL FUNCTIONS
The Supreme Court claims for itself the constitutionally-invested power to control and regulate, in this State, the practice of law and the licensing, ethics and discipline of legal practitioners. The state bar agency — with its constituent body, the Board of Bar Examiners — functions as an organ of the Supreme Court aiding it in the performance of the judiciary's mandated mission of our fundamental law.
Within an administrative agency the merger of investigative and enforcement responsibility with that of adjudication is not forbidden as a violation of due process if in the broader institutional framework safeguards do exist against unchecked administrative discretion and its
In contrast to the principles which affect administrative agencies, due process is offended when a judicial institution functions both as an organ of enforcement and adjudication. Concentrating the powers of judge and prosecutor in the same person or body poses an unreasonably high risk of compromising the protected and cherished value of judicial detachment and neutrality.
SEPARATION OF POWERS AND DUE PROCESS CONSIDERATIONS
While our state constitution expressly institutes a tripartite division of government responsibilities,
Even though the federal constitution — unlike our own — does not explicitly enjoin a division of responsibilities among the three branches,
Legislative, as distinguished from executive, power is the authority to make law, but not to execute it or to appoint agents charged with the duty of enforcement. The latter is purely an executive function.
In Oklahoma, the responsibility for legislation, prosecution and adjudication in the arena of professional discipline of legal practitioners is constitutionally reposed in the judicial department.
While as a legislator in the arena of bar ethics and discipline, this court can and does fashion, by rules, the necessary prosecutorial machinery, it cannot itself exercise enforcement powers for, or on behalf of, the instrumentality it has created. Once an institutional design for the discharge of prosecutorial function has been structured, this court can no longer cast itself in the dual role of judge and enforcer to command or control, directly or obliquely, the institution of bar charges. An exercise of both functions would be inconsistent with this court's constitutionally-mandated responsibility for adjudication of bar disciplinary proceedings.
Neither party disputes that under Art. 10 § 3
We do not reach here Tweedy's request that a larger staff and budget be allotted to the Commission. That issue is not justiciable in this proceeding. It should first be presented to the Board of Governors. In case of a negative disposition, the problem could reach us later as a fit subject for our managerial concern dehors the adversarial framework of litigation process.
Petition is denied because the power sought to be invoked may not be exercised consistently with the minimum standards of due process and compatibly with this court's constitutional responsibility for the administration of the disciplinary bar jurisdiction.
IRWIN, C.J., and WILLIAMS, LAVENDER and HARGRAVE, JJ., concur.
SIMMS, J., concurs in part and dissents in part.
BARNES, V.C.J., and HODGES, J., not participating.
In a series of cases in which the judge, who had previously charged a party with contempt, presided over the subsequent trial, the U.S. Supreme Court held that under the Due Process Clause of the Fourteenth Amendment the contemnor was entitled to be tried before another judge. Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 ; In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 . In Murchison, a judge had acted under state law as a one-man grand jury and later tried recalcitrant witnesses on contempt charges for their refusal to answer questions at the inquest. The Court held that the judge who had sat as a one-man grand jury was part of the accusatory process. The Court held that one who actively participates in the inquest "cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused." 349 U.S. at 137, 75 S.Ct. at 626, 99 L.Ed. at 947. "Fair trials are too important a part of our free society to let prosecuting judges be trial judges of the charges they prefer." 349 U.S. at 137, 75 S.Ct. at 626, 99 L.Ed. at 947; Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 ; Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 .
The very same principle obtains in the English Law. Although the concept of constitutional "due process" is not known to that legal system. English appellate courts "quash" (reverse) decisions both by judicial and quasi-judicial tribunals whose member (or members) is found to have been intimately connected with the prosecution function. Adan Haji Jama v. The King, Judicial Committee of the Privy Council  (reported in Merrill, Cases and Materials on Administrative Law, Vol. I, p. 173 ); Queen v. London County Council, 1 Q.B. 190 ; Frome United Breweries Co., Ltd. v. Justices for County Borough of Bath, A.C. 586 .