                                                                                            05/07/2019
                  IN THE SUPREME COURT OF TENNESSEE
                             AT KNOXVILLE
                               September 6, 2018 Session

NATHAN E. BROOKS v. BOARD OF PROFESSIONAL RESPONSIBILITY

            Direct Appeal from the Chancery Court for Hamilton County
                     No. 17-0506 Jeffrey F. Stewart, Chancellor
                      ___________________________________

                              No. E2018-00125-SC-R3-BP
                        ___________________________________


SHARON G. LEE, concurring in part and not joining in part.
       Nathan E. Brooks petitioned to have his law license reinstated. Rather than pay an
advance cost deposit under Tennessee Supreme Court Rule 9, section 30.4(d)(9), Mr.
Brooks filed a pauper’s oath and indigency affidavit. A Board of Professional
Responsibility hearing panel dismissed the petition without prejudice, giving Mr. Brooks
the opportunity to refile the petition with a cost deposit. The trial court agreed with the
hearing panel and, now, so does the Tennessee Supreme Court.
       The Court properly denies relief to Mr. Brooks because Rule 9, section 30.4(d)(9)
requires an advance cost deposit for a reinstatement petition, and Mr. Brooks’ due
process claim lacks merit.
        Mr. Brooks’ due process claim was vague and generalized. He failed to specify
whether he asserted a substantive or procedural due process claim, or both. Mr. Brooks’
brief, consisting of four pages of argument, had a single issue: “Whether The Trial Court
Erred When It Affirmed The Order Of The Board Dismissing Appellant’s Petition To
Reinstate Solely On The Ground That Appellant Was Not Entitled To Proceed As A
Pauper?” Mr. Brooks first argued that “Boddy [sic] v. Connecticut [sic] 401 U.S. 371
(1971) is four corners on point in this cause and is dispositive.” Later in his brief, Mr.
Brooks stated that the “application of the holding in Boddy [sic] to the case at bar is
lucid,” and “Boddy [sic] lucidly holds that where only one forum is available to a litigant,
due process requires that he may not be refused access because he is a pauper.” The gist
of Mr. Brooks’ argument was that based on the due process analysis in Boddie v.
Connecticut, 401 U.S. 371 (1971), attorneys facing quasi-criminal disciplinary
proceedings are entitled to “procedural due process and an opportunity to be heard.”
       Boddie, however, involved a litigant’s interest in obtaining a divorce—a very
different interest than Mr. Brooks’ desire to have his law license reinstated. A law
license, unlike a divorce, is a privilege, not a right. Smith v. Bd. of Prof’l Responsibility,
551 S.W.3d 712, 726 (Tenn. 2018) (citing Hughes v. Bd. of Prof’l Responsibility, 259
S.W.3d 631, 641 (Tenn. 2008)). Besides, this is an attorney reinstatement case, not a
disciplinary case filed by the Board of Professional Responsibility.
      In short, Mr. Brooks failed to adequately make a procedural due process claim; at
most, he only hinted at such a claim. That should have ended the discussion. Yet the
Court engaged in a protracted and unnecessary discussion of the responsibilities of and
funding for the Board of Professional Responsibility.
       A party, not the Court, should identify the issues and provide adequate legal
authority and argument. Tenn. R. App. P. 13(b). When a party fails to do so, it is not the
Court’s role to step in and fill in the gaps. Although the Court has the discretion under
Rule 13(b) to consider issues not identified by the parties for reasons such as preventing
needless litigation, injury to the public interests, or prejudice to the judicial process, none
of these considerations are present here. The Court’s discretion under Rule 13(b) should
be exercised sparingly. Tenn. R. App. P. 13(b) advisory comm’n cmt.
       Our judicial system works best when the Court considers the issues raised by the
parties after input and briefing on the issues presented. See State v. Northern, 262 S.W.3d
741, 767 (Tenn. 2008) (Holder, J., concurring and dissenting) (quoting Carducci v.
Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)) (“‘The premise of our adversarial system is
that appellate courts do not sit as self-directed boards of legal inquiry and research, but
essentially as arbiters of legal questions presented and argued by the parties before
them.’”).
       For the reasons stated, I concur in the Court’s decision that Mr. Brooks’ petition
should be dismissed because he failed to pay an advance cost deposit as required by
Tennessee Supreme Court Rule 9, section 30.4(d)(9) and that Mr. Brooks’ due process
claim had no merit. I do not join in the Court’s procedural due process analysis.




                                                   _________________________________
                                                   SHARON G. LEE, JUSTICE




                                              2
