IN THE MATTER OF MACKENZIE (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr.56

In re MacKenzie — Reinstatement Proceeding Dismissal Reversed: State Bar Court Clarifies Jurisdictional Issues and Directory Nature of Cost Payment Rule

State Bar Court, Review Dept. • May 11, 2007 • Judge Remke (Presiding), Judge Watai, Judge Epstein • 5 Cal. State Bar Ct. Rptr. 56

The State Bar Court Review Department reversed a hearing judge’s order dismissing Timothy John MacKenzie’s petition for reinstatement to the State Bar, clarifying the interpretation and application of Rule 662(c) of the Rules of Procedure of the State Bar concerning the payment of discipline costs. The Review Department held that the hearing judge erred in concluding that non-compliance with Rule 662(c) deprived the court of jurisdiction.

Facts

Timothy John MacKenzie, an attorney seeking reinstatement to the State Bar, had faced disbarment in prior proceedings. A Notice of Disciplinary Charges was filed against MacKenzie, and a decision recommending disbarment was issued. MacKenzie subsequently filed a Chapter 7 bankruptcy petition, but the State Bar was not listed as a creditor.

MacKenzie then resigned from the State Bar, with the resignation accepted by the California Supreme Court. The Supreme Court order awarded discipline costs to the State Bar. Later, MacKenzie filed a petition for reinstatement. The State Bar moved to dismiss the reinstatement proceeding, arguing that MacKenzie had failed to comply with Rule 662(c) by not providing proof of payment of all discipline costs *before* filing his reinstatement petition.

MacKenzie opposed the motion to dismiss, contending that Rule 662(c) was unenforceable because it was more restrictive than the cost statute and that the costs had been discharged in his bankruptcy. The hearing judge granted the motion to dismiss. MacKenzie moved to set aside the dismissal, asserting he had now paid all discipline costs. The hearing judge denied the motion, stating that the court lacked jurisdiction. The Review Department then took up both cases.

Procedural Posture

The State Bar Court’s hearing department granted the State Bar’s motion to dismiss the reinstatement proceeding for lack of payment of costs. It was also determined that jurisdiction to rule on the motion was not something this court had due to his failure to pay them prior to reinstating, which was a requirement in the department.

Issue(s)

Did the hearing judge err in determining that the State Bar Court lacked jurisdiction to consider MacKenzie’s motion to set aside the dismissal of his reinstatement petition based on his failure to comply with Rule 662(c)? Was Rule 662(c) of the Rules of Procedure of the State Bar a jurisdictional requirement, or was it merely directory?

Holding

Yes. The State Bar Court Review Department held that the hearing judge erred in determining a jurisdictional issue and thus, the case was reversed for more consideration.

Reasoning

The Review Department reasoned that the statutory framework in the Business and Professions Code gave guidance to determine law. The language of the rule indicates that the legislature does not allow those obligations to proceed from his point and therefore the matter needs to be reversed.

The Review Department undertook a detailed analysis of Rule 662(c) and its relationship to the statutory framework governing discipline costs and reinstatement. It found that although the rule’s wording appeared mandatory, it was, in fact, merely procedural. The opinion said that:

Statutory Authority Controls: The underlying statutory authority for imposing and enforcing costs was Sections 6086.10 and 6140.7. These sections allow authority to determine whether they can’t pay.

Rule 662(c)’s Scope: This rule set forth the actions of the board.

Balancing Harmony and Conflict: By construing Rule 662(c) as directory and not jurisdictional, the Review Department sought to harmonize the rule with both enabling statutes. This construction is consistent with the rehabilitative goals.

The analysis emphasized the intent of the California Rules of Court. The importance for payment of certain charges in the area indicates. He doesn’t qualify to get said thing.

Disposition & Sanction

The Review Department reversed the hearing judge’s order dismissing MacKenzie’s petition and remanded the matter for further consideration consistent with its opinion. The effect of this means that a hearing to determine. All other considerations are to consider MacKenzie a proper fit for reinstatement.

Practical Implications

This applies to future cases of similar situations.

Citations & Links

In the Matter of MacKenzie, (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 56
Rules of Procedure of the State Bar, rule 662(c)
California Rules of Court
Business and Professions Code sections 6086.10, 6140.7

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