dissenting:
I agree that Barnard was not entitled to file a declaratory judgment action in the district court because there was “no actual conflict ... when Barnard commenced his lawsuit.” The Court does not address whether filing the action in the absence of an “actual conflict” was sanctionable, however, because there was a question at the time of filing whether the district court had subject matter jurisdiction. I would affirm the sanctions against Barnard on the ground that there was no justiciable controversy between him and the Bar.
This case also addresses the issue of district court subject matter jurisdiction over Bar disciplinary matters and holds that the district courts have no such jurisdiction. Recently, this Court promulgated new Rules of Lawyer Discipline and Disability, 214 Utah Adv.Rep. 3 (1993), effective July 1, 1993, which expressly give district courts power over attorney disciplinary matters. In my view, the Court’s ruling in this case is inconsistent with those rules on the issue of jurisdiction.
This Court has no power under Article VIII of the Utah Constitution to control the jurisdiction of district courts. Article VIII, section 4 provides, “The Supreme Court by rule shall govern the practice of law, including admission to practice law and the conduct and discipline of persons admitted to practice law.” Neither that language nor the language in the same section giving the Court power to promulgate rules of evidence and procedure confers on us the power either to control the jurisdiction of district courts or to confer jurisdiction on district courts. That power lies within the province of the Legislature.
The majority opinion observes that this case and Barnard v. Sutliff, 846 P.2d 1229 (Utah 1992), arose before the new Rules of Lawyer Discipline were promulgated with respect to the issue of jurisdiction. That is, however, irrelevant. The Legislature has not expanded the jurisdiction of the district courts to include lawyer disciplinary matters arising under the rules promulgated by this Court.
I also think it appropriate to remark that this Court has made no effort whatsoever to reconcile this opinion with the new rules. Furthermore, even though Sutliff had already been decided and this case was pending when the rules were promulgated, the Court made no effort to reconcile the assertion of jurisdiction in the rules with the rulings in these cases.
■ In my view, the district court has always had jurisdiction to issue injunctions against administrative actions that exceed the agency’s authority or are in violation of constitutional law. Whether the Utah State Bar is similar to other administrative agencies in this respect has never been addressed in anything other than the most conclusory and ill-considered fashion in both Sutliff and this case. However that issue should be resolved, I do not believe that this Court has the constitutional authority to co-opt the power of the district courts to adjudicate lawyer disciplinary issues without a legislative conferral of jurisdiction on the district court. To be sure, this Court has ultimate power under the Constitution over lawyer discipline, but using the district court as part of the established mechanism for dealing with lawyer discipline matters should at least require the concurrence of the Legislature.