The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6844

April 6, 1995

MICHIGAN SUPREME COURT:

Legislative imposition of additional requirements on attorneys who do direct placement adoptions

LEGISLATURE:

Legislative imposition of additional requirements on attorneys who do direct placement adoptions

Sections 3(f) and 5 of the Foster Care and Adoption Services Act and sections 22(b), 54(7) (b) and (c), and 55a(l) of the Michigan Adoption Code, which impose additional requirements on attorneys who seek to participate in direct placement adoptions, violate Const 1963, art 6, Sec. 5, and Const 1963, art 3, Sec. 2.

Gerald H. Miller

Director

Michigan Department of Social Services

P.O. Box 30037

Lansing, Michigan

You have asked whether recent legislation that imposes additional requirements on attorneys who seek to participate in direct placement adoptions is constitutional. Specifically, you ask whether sections 3(f) and 5 of 1994 PA 203, Foster Care and Adoption Services Act, MCL 722.951 et seq; MSA 25.359(1) et seq, and sections 22(b), 54(7) (b) and (c), and 55a(1) of chapter X of 1939 PA 288, Michigan Adoption Code, MCL 710.21 et seq; MSA 27.3178(555.21), violate any provisions of the 1963 Michigan Constitution.

Significant changes were made to Michigan's adoption laws in 1994 by enacting the Foster Care and Adoption Services Act and amending the Michigan Adoption Code through 1994 PA 222. These particular statutory provisions provide for direct placement adoptions to be handled by attorneys qualified and registered with the children's ombudsman housed within the executive branch in the Department of Management and Budget. A direct placement adoption is defined in section 22(n) of the Michigan Adoption Code as "a placement in which a parent or guardian selects an adoptive parent for a child, other than an individual related to the child within the fifth degree by marriage, blood, or adoption, and transfers physical custody of the child to the prospective adoptive parent." A direct placement adoption requires approval by the probate court under section 24 of the Michigan Adoption Code.

The Foster Care and Adoption Services Act, at section 3(f), sets forth as a purpose of the act:

The purposes of this act are all of the following:

(f) To regulate adoption attorneys who facilitate direct placement adoptions. [Emphasis added.]

Further, section 5 of the same statute states:

Before providing services in a direct placement adoption as provided under the adoption code, an attorney shall register with the children's ombudsman by filing with the children's ombudsman a verified statement that the attorney is in compliance with all the requirements for an adoption attorney prescribed by section 22 of the adoption code, being section 710.22 of the Michigan Compiled Laws. An attorney who wishes to continue providing adoption services shall reregister with the children's ombudsman as provided in this section at least once every 5 years. An adoption attorney may request to be removed from the registry at any time.

The Michigan Adoption Code sets forth in section 22(b) the requirements necessary to be an adoption attorney:

As used in this chapter:

(b) "Adoption attorney" means an attorney acting as counsel in a direct placement adoption who meets all of the following requirements:

(i) Has completed at least 12 hours of continuing education in this state during the past 5 years in courses integrating the legal and social aspects of adoption.

(ii) Maintains an up-to-date file of individuals licensed or registered under either the public health code, Act. No. 368 of the Public Acts of 1978, being sections 333.1101 to 333.25211 of the Michigan Compiled Laws, or the occupational code, Act No. 299 of the Public Acts of 1980, being sections 339.101 to 339.2721 of the Michigan Compiled Laws, and agencies to whom referrals may be made for counseling services needed by a adoption client.

(iii) Has registered as an adoption attorney with the children's ombudsman as provided in section 5 of the foster care and adoption services act.

Section 54(7)(b) and (c) of the Michigan Adoption Code requires that an attorney in a direct placement adoption, either as the representative of the petitioner seeking an adoption or of a parent of the adoptee, meet the requirements of section 22 that is quoted above and file a verification of that fact with the court. Likewise, section 55a(l) of the same statute provides that an attorney shall not represent a party in a direct placement adoption unless the attorney is an adoption attorney.

Your question requires an analysis whether these legislatively enacted qualifications to practice direct placement adoption law violate the constitutional authority of the Michigan Supreme Court to regulate the practice of law in the courts. The people of Michigan have divided the powers of government into three branches and prohibited any branch from exercising the powers of the other branches. Const 1963, art 3, Sec. 2.

In a sua sponte address by the Supreme Court on the constitutionality of the Open Meetings Act as applied to the judicial branch, the Supreme Court, in In re 1976 PA 267, 400 Mich 660, 662-663, 255 NW2d 635 (1977), set forth the general principles of the judicial branch's authority:

Art 6, Sec. 1 vests the judicial power of the state exclusively in one court of justice. Section 4 of that article vests general superintending control over all courts in the state in the Supreme Court and Sec. 5 confers upon this Court the power to make rules to govern the practice and procedure within the courts. It is also well settled that under our form of government the Constitution confers on the judicial department all the authority necessary to exercise its powers as a coordinate branch of government.

The judicial powers derived from the Constitution include rulemaking, supervisory and other administrative powers as well as traditional adjudicative ones. They have been exclusively entrusted to the judiciary by the Constitution and may not be diminished, exercised by, nor interfered with by the other branches of government without constitutional authorization. [Citations omitted.]

The Supreme Court has long recognized its inherent authority to regulate the qualifications of persons who may practice before the courts of this state. In the matter of Mills, an Attorney, 1 Mich 392, 394-396 (1850); In re Hartford, 282 Mich 124, 128; 275 NW2d 791 (1937); In re Schlossberg v State Bar Grievance Bd, 388 Mich 389, 395; 200 NW2d 219 (1972)

In Const 1963, art 6, Sec. 5, the people have provided, in pertinent part, the following:

The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state.

In Grievance Administrator v August, 438 Mich 296, 304; 475 NW2d 256 (1991), the court ruled:

The power to regulate and discipline members of the bar rests ultimately with this Court pursuant to constitutional mandate. Const 1963, art 6, Sec. 5. [Citation omitted.]

Also, in Ginger v Wayne County Circuit Court, 372 F2d 621, 624 (CA 6, 1967) , cert den 387 US 935; 87 S Ct 2061; 18 L Ed 2d 998 (1967), the federal appellate court concluded that the right to control and regulate the granting of a license to practice law in Michigan belongs to the state and is governed entirely by the Supreme Court.

The Michigan Supreme Court has also recognized the Legislature's authority to regulate the practice of law under its police power. For example, in Detroit Par Ass'n v Union Guardian Trust Co, 282 Mich 707, 713; 281 NW 432 (1938), the court rejected the contention that the courts have the sole power to regulate the practice of law, declaring:

Our Constitution has vested the courts with inherent power to regulate the practice of law to the extent that is reasonably necessary for their proper functioning. Legislative regulation is unconstitutional when, and only when, it tends to impair the proper administration of judicial functions. [Citations and footnote omitted.]

In Ayres v Hadaway, 303 Mich 589, 597-598; 6 NW2d 905 (1942), the court upheld legislation creating the State Bar of Michigan, stating:

In our opinion there is inherent power in the Supreme Court to regulate the qualifications of persons who may be permitted to practice law in this State. That the legislature has seen fit to adopt legislation to this end does not make the act unconstitutional.

The integrated (all must belong) State Bar was first created in 1935 PA 58. In State Bar of Michigan v Lansing, 361 Mich 185, 194; 105 NW2d 131 (1960), the court upheld 1935 PA 58, stating:

The provisions of this act are such as to clearly indicate that it was the intent of the legislature to provide for the organization of an agency that should function pursuant to rules and regulations prescribed by the Supreme Court for the purpose of performing, and assisting in the performance of functions that, in the final analysis, pertain to the judiciary. Clearly if such was not the intention there would have been no attempt to invest this Court with the powers of organization and regulations obviously contemplated by the language of the statute.

The current provisions for an integrated State Bar are found in sections 901 and 904 of Chapter 9 of the Revised Judicature Act of 1961, MCL 600.901 et seq; MSA 27A.901 et seq, as follows:

Sec. 901. The state bar of Michigan is a public body corporate, the membership of which consists of all persons who are now and hereafter licensed to practice law in this state. The members of the state bar of Michigan are officers of the courts of this state, and have the exclusive right to designate themselves as "attorneys and counselors," or "attorneys at law," or "lawyers." No person is authorized to practice law in this state unless he complies with the requirements of the supreme court with regard thereto.

Sec. 904. The supreme court has the power to provide for the organization, government, and membership of the state bar of Michigan, and to adopt rules and regulations concerning the conduct and activities of the state bar of Michigan and its members, the schedule of membership dues therein, the discipline, suspension and disbarment of its members for misconduct, and the investigation and examination of applicants for admission to the bar.

In State Bar of Michigan v Galloway, 422 Mich 188, 197; 369 Nw2d 839 (1985), the court ruled that the Legislature had authorized nonattorneys to appear at Michigan Employment Security Commission referee hearings as representatives of their employer clients. However, that decision dealt with practice before a statutorily created administrative tribunal rather than before a court.

In the language of Detroit Bar Ass'n v Union Guardian Trust Co, supra, at p 713, does this legislative regulation of the practice of law impair the proper administration of judicial functions. The provisions of the Foster Care and Adoption Services Act and the Michigan Adoption Code here at issue go far beyond any prior legislative regulation of the practice of law sustained by the Michigan Supreme Court. These provisions regulate the professional activities of members of the bar. Indeed, section 3(f) of the Foster Care and Adoption Services Act declares as its purpose the regulation of "attorneys who facilitate direct placement adoptions." These provisions impose additional educational, recordkeeping and registration requirements on attorneys who seek to participate in direct placement adoptions. These statutory provisions preclude attorneys licensed under the Supreme Court Rules for the Board of Law Examiners from representing clients in direct placement adoption proceedings in probate court unless they meet the additional requirements imposed by the Legislature.

The power to regulate attorneys has been reposed in the Michigan Supreme Court under Const 1963, art 6, Sec. 5. Grievance Administrator v August, supra. See, also, Mills, supra, Hartford, supra, Schlossberg, supra, and Ginger, supra. This attempt by the Legislature to restrict the practice of law of persons that are qualified to practice law under the Supreme Court Rules for the Board of Law Examiners impairs the administration of judicial functions under the decisions of the Michigan Supreme Court cited herein interpreting the Michigan Constitution. The identification of specialty practice areas that may require additional licensing requirements has been committed to the Michigan Supreme Court rather than to the Legislature by the 1963 Michigan Constitution.

It is my opinion, therefore, that sections 3(f) and 5 of the Foster Care and Adoption Services Act and sections 22(b), 54(7)(b) and (c), and 55a(1) of the Michigan Adoption Code, which impose additional requirements on attorneys who seek to participate in direct placement adoptions, violate Const 1963, art 6, Sec. 5, and Const 1963, art 3, Sec. 2. These provisions are severable from the Foster Care and Adoption Services Act and the Michigan Adoption Code without affecting the validity of the remaining sections in accordance with MCL 8.5; MSA 2.216, and Pletz V Secretary of State, 125 Mich App 335, 375-376; 336 NW2d 789, lv den 417 Mich 1100.20 (1983). The Michigan Supreme Court may, of course, consider whether any additional requirements should be imposed upon attorneys who seek to participate in direct placement adoptions.

Frank J. Kelley

Attorney General