1 Tenn. Code Ann. § 23 -3-201 provides in pertinent part:

Grounds for disbarment or discipline.-- A ny attorney, solicitor or counselor at law admitted to practice in the courts of the state may be disbarred or suspended from the practice of law who:
(1) Commits, o r may hav e committed, any infamous crime or misdemeanor involving moral turpitude;

. . . (5) Is guilty of any unprofessional conduct, dishonesty, malpractice
or any conduct which renders such person unfit to be a member of the bar.

Tenn. Code Ann. § 23-3-202(a) pr ovides in pertinen

t part: “[p]roceedings may be instituted in any circuit, cha

ncery, or crimin

al court . . . by petition duly verified and sworn to by . . . [an] individual aggrieved by the act or conduct of such attorney.”



### IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE KENNETH L. STOREY v. RANDALL E. NICHOLS, ET AL 

### . Appeal as of Right from the Chancery Court for Knox County

No. 135462-2 David Cate, Chancellor

No. E1998-00851-SC-R3-CV - Decided May 1, 2000

FOR PUBLICATION

The disposit ive issue i n this case is whether a n appeal as o f righ t fro m a trial court’s judgment in an attorney-d

iscip linary proceeding initiated pursuant to Tenn. Code Ann. §§ 23-3-201–204 1 lies in the Court of Appeals or in the Supreme Court. Because we hold that jurisdiction ove r an a ppe al a s of righ t in a st atu tor y dis cip lin ary p roceeding lies in the Court of Appeals, we reverse the

intermediate app

ellate court’s o

r der transferr

ing the case to th

e Supreme Court, and we tran

sfer the case to

the Court of Appea

ls for its review o

n the merits.

Tenn. R. App . P. 3; Tr ansfer Order of the Court of Appeals Reversed; Case Transferred to Court of Appeals

H OLDER , J., delivered the opinion of the court, in which A NDERSON , C.J., and D ROWOTA , B IRCH and B ARKER , JJ., joined. Kenneth L. Storey, Henning, Tennes see, Pro Se-2-

Paul G. Summers, Attorney General and Reporter, Michael E. Moor e, Solici tor General, and Meredith DeVaul

t, Senior Counsel, f

or the Appellees , Randall E. Nichol s, et al.
OPINION

The plaintiff, Kenneth L. Storey, is currently incarcera ted for a conviction o f aggravated rape. On August 29, 1997, he filed a "petition for disciplinary pro ce edings pursuant to T.C.A. §§ 23-3-201, 23-3-202, and conspiracy to obstruct justice, negligent misrepresentation, defamation of character in violation

of plaintiff's constitutional rights to due process and equal protection of the law, and R.I.C.O. Act 18 U.S.C.A. § 1961."

S torey' s petition named as defendants the State's attorneys who prosecuted his aggravated rape case. The petition alleged that District Attorney General Randall E. Nichols, former Assistant District Attorney General GregHarrison, and Assistant District Attorney General Charles E. Cerney
were guilty of criminal conspirac y, prosecutorial misconduct, and vio

lations of Tenn. R. Su

p. Ct. 9. The pe titi on demanded a jury trial and sought monetary relief. The petition also sought an injunction barring further prosecution of Storey dur ing the pendency of his complaint for disciplinary proceedings and an injunction barring the defendants from further "interfering with, preventing, thwarting the plaintiff and any other accused in reiceiving [sic] their due justice from the courts guaranteed by th

e federal and st

a te co nstitutions and pursuant to T.C.A. § 23-3-201 and 23-3-202."

The defendants file

d a motion to

dismiss and/orfor summary judgment. The motion alleged the following grounds: thatthe trial court lacked jurisdiction over the alleged crimi

nal violations; that the complaint fail

ed to allege a bas

is for institution of disciplinary proceedings under Tenn. Code Ann. § 23-3-201 et seq. ; that prose cutorial immunity barred a 42 U.S.C. § 1983 claim for monetary relief; that the r

equested injuncti

ve relief was moo

t; that the defend

ants were protected

by absolute immunity under Tenn. Code Ann. § 9-8-307; and that the complaint lacked merit. The trial court granted a s

ummary judgment to th

e defendants. Storey filed a pro se Noti ce of Appeal in w

hich he st ated that he "hereby appeals to the Tennessee Supreme Court, pur suant to Rule 9 , §§ 1.3 and 1.4." Notwithstanding the language of the Notice of Appeal, the appellate court clerk's office filed the appeal

in the Court of Appe

als. Storey filed a "petition for retransfe r of appeal to

the Supreme Court pursuant to Rule 9, § 1.3 and § 1.5." The Court of Appeals entered an order granting Storey’s

petition and trans

ferred the cas

e to this Court.
ANALYSIS

There are two methods for an individual to initiat e a disc iplinary proceeding against an attorney in Tennessee. The first is governed by Tenn. R. Sup. Ct. 9 and is a disciplinary proceeding brought before theBoard of Professional Responsibility. The second method is governed by Tenn. Code Ann. §§ 23-3-201–204 and consists of a statutory disciplin

ary proceeding

filed in state cour

t. See Ex Parte

Chattanooga Bar Ass’n , 566 S.W.2d 880, 884 (Tenn. 1978) (stating that while not “an2 In his pro se pleadings, the plaintiff cited both Rule 9 and the statute (§§ 23-3-201–204) as

bases for his claims. However, as stated above , t hese are alternative methods for initiating a disciplinary proceeding. Because he filed this proceeding in state court rather than before the Board of Professional Responsibility, we consider it as a statutory disciplinary proceeding.
-3- alternative disciplinary procedure for use by any bar association or bar committee[,] [a]ny individual aggrieved by the act or conduct of

an attorney may avail himself o f the statute, or o

f course may file his complaint with the d

isciplinary couns

el. ”); Ch apdelaine v. Hai

le , 548 S.W.2d 656, 658-59 (Tenn. 1977) (stating that Rule 42–now Rule 9–was not intended to supplant the statutory proceeding). The pending proceeding was filed in chancery court pursuant to Tenn. Code Ann. §§ 23-3-201–204. 2

As for the first me

thod (a di sciplinary proceeding pursuant to Rule 9), the manner for appealing the tri

al court’s decis

ion is set out in Rule 9,

§ 1.3, which provid

es:
Either party dissatisfied with the decree of the circuit or chancery court may prosecute an

appeal direct [ sic] tothe Supreme Court . . .

. Pri or decisions of this Cou

rt holding that appe

al of disciplin

ar y proceedings must be taken to the Co urt o f Appeals because T.C.A. § 16-4-108 so requires are expressly overruled. Tenn. R. Sup Ct. 9.

Based upon the preceding quotation, one might conclude that

Rule 9, § 1.3 govern

s appeals in both types of attor

ney-discipline pr

oceedings. Howe

ver, read in

the overall context of Rule 9, that appeal provision o nly applies to proceedings bro ught before the Bo ard of Profession

al Responsibility pursuant to the rule. The appeal procedure stated in Rule 9 do es not ap ply to the appeal of a statutory disciplinary proc eeding. To deter

min e the proper procedure for appealing a statutory disciplinary proceeding, we must turn to § 23-3-204 and the case law construing that statute.

Tennessee Code Annotated § 23-3- 204 provides that “ [i]n all procee dings either part

y may except to the judgment of the tria l court, and may pr

osecute an appe

al to the supreme cour

t." On its face, § 23-3-204 clearly appear s to provide for a d

irect appeal to th

e Supreme Court.

However, in Memphis & Shelby County Bar Ass’n v. Himmel

stein , 165 Tenn. 102, 53 S.W.2d 378 (Tenn. 1932), the Court held that, notwithstan ding Code 1932, § 9977 (now Tenn. Code Ann. § 23-3-204), an appeal of a statutory disciplinary proceeding properly lies in the Court of Appeals pursuant to Code 1932, § 10618 (now Tenn. Code Ann. § 16-4-108).

Hi mmelstein

was a statutory disciplinary proceeding in which the defendant-attor ney ha d been suspended from the practice of law and had appealed directly to the Supreme Court. The plaintiff filed a motion t o transfer the case to the Court o f Appeals. In re

sponse, the defe

ndantattorney apparently argued that “section 9977" (now Tenn. Code Ann. § 23-3-204) provided a direct appeal to the Supr

eme Court.3 As quoted in Himmelstein , sect ion 10618 pro vided: “The jurisd iction of the cour

t of appeals

. . . shall extend to all civil cases except those involving con

stitutional question

s, the right to hold public office, work

men’s comp ensation, state revenue, mandamus, in the nature of quo warranto, ouster, habeas c o rpus, and excepting cases which have been finally determined in the lower court
on demurrer or other method not involving a review or determination of the facts, or in which all the facts have been stipulated.” Himmelstein , 165 Tenn. at 102, 53 S.W.2d at 378. The current version of this statute, Tenn. Code Ann. § 16-4-108(a)(1), provides: “The ju risdiction of the c

ourt of appeals is appellate only, a

nd extends to all ci

vil cases except

workers' compen

sation cases and a

ppeals pursuant to § 37-10-304(g).”
-4- The Court rejected th

e defendant’s a

rgument. The Court

first n ote d that “[p]rior to the adoption of the Code of 1932, jurisdiction of ap peals in such case

s was clearly in

t he Court of Appeals.” The Court

then noted that although “section 9977" had been reenacted in the 1932 Code, “section 10618" (now Tenn. Code Ann. § 16-4-108(a)(1)) had also been reenacted in the 1932 Cod e
. 3 In grant ing the plaintiff’s motion to transfer the case to the Court of Appeals, the Supreme Cour t stated:
[T]he Code includes thes e two acts without material change, and accordingly

it must be held that the Code embodied these acts as they had been previously construed.
Moreover, section 13 of the Code provides: "If provisions of different chapters or articles of t

he Cod e appear to contravene each other, the provisions of each ch ap ter or article sh all prevail as to a

ll matters and questions growing out of the subject matter of that chapter or article." The matter or question before us is the jurisdiction of the Court of Appe als, and that isthe subject-matter of section 10618 of the Code. That section acc ordingly prevails under the apparently contr

adictory provisio

n of section 9977 of the Code, the subject-matter of w hich is the right of appeal of an attorney against whom disbarment proceedings have been instituted.

Himmelstein

, 165 Tenn. at 102 , 53 S.W.2d at 378. See also Hamby v. McDaniel , 559 S.W.2d 774, 776 (Tenn. 1977) (stating that “the fact that the legislature has not expressed disapproval of a judicial construction of a statute is persuasive evidence of legislative adoption of the judicial construction, especially . . . where the law . . . is reenacted without change in the part construed.”).

Himmelstein

controls the result in the pending case. Although Tenn. Code Ann. § 23-3-204 appears to provide for a direct appeal to the Supreme Court , the reenact ment of § 23-3-204 (then “section 9977") in the 1932 Code (and in subsequent codes) must be read in light of the courts’ prior construction of the statute. Under Himmelstein , an appeal as of right from the trial court’s decision in a statutory disci

plinary proceed

ing must be taken to t

he Court of Appea

ls.-5- CONCLUSION

The Court of Appeals has appellate jurisdiction ov er ap peals as of right from attorneydiscipli ne proceedings initiated pursuant to Tenn. Code Ann. §§ 23-3-201–204 . The Court of Appeals therefore erred in transferring this appeal to the Supreme Court. We transfer the ca

se to the Court of Appeals f

or its review on the

merits.

We note for

the benefit

of the Court of Appeals that we appointed counsel to represent the pro se appellant. However, the appellant subsequently moved to disqualify his ap

pointed counsel, and the Court granted the motion. As a result, the appellant is proceeding pro se.

The taxing of

costs pertaining to

the “petition to re

transfer” shal

l await and be inc

luded in the final taxing of

costs.