Attorneys are termed out in Sacramento

By Larry Doyle
Chief Legislative Counsel

Already at an all-time low, the number of lawyers in the California Legislature appears to be headed towards new depths following next November’s election.

Although it is far too early to predict results with any certainty, all early signs suggest that attorneys will make up somewhere between 13 percent and 19 percent of the Legislature that convenes in December of 2006. It would take an extremely unlikely lawyer sweep of all races in which they are running to even maintain the lowest-in-California-history status quo of 22.5 percent.

To put these figures into perspective, 35 years ago lawyers comprised nearly half (47 percent) of the Legislature. Since then, the numbers have fallen steadily, to 38 percent in 1981, and 25 percent a decade later.

Why should this be a concern? In addition to an intimate understanding of the demands and ethical obligations facing practicing lawyers, which are often the subject of legislation, current lawyer-lawmakers believe that attorneys’ training and experience in applying the law makes them particularly valuable to the legislative process.

Dunn

“While many professions should be represented in the Legislature’s membership, the declining number of experienced lawyers in the legislature is not a harbinger of good things to come,” says Sen. Joe Dunn of Santa Ana, one of the lawyer-legislators scheduled to depart next November. “The talents a lawyer brings to the lawmaking profession are unrivaled by any other profession. Put simply, the Legislature is in need of more experienced lawyers.”

Dunn’s view is echoed by Assembly Judiciary Committee Vice-chair Tom Harman of Huntington Beach, who notes that “attorneys are educated and trained to be ‘problem solvers.’” Harman adds that it is particularly valuable to have lawyer-legislators as members of the two house judiciary committees, since such members “not only know and understand the legislation that is before the committee, but often times have applied the very law that is under consideration by the committee in a real life situation.”

The decline in lawyer-legislators anticipated in the November 2006 election will be most pronounced in the state Senate, which will lose seven of its current crop of 11 attorneys to term limits. With only two attorneys currently rated likely winners in their races to join the Senate for the 2007-08 session — one other locked in a primary battle currently too close to call, and a fourth awaiting the results of a special Congressional election before he throws his hat in the ring — the best that can be expected is that the November 2006 election will result in a net loss of three lawyer-Senators.

This follows on the heels of a 2004 election that also reduced the ranks of lawyer-Senators by three, meaning that in three short years, the percentage of attorney members of California’s upper house will have been at best nearly halved, from 35 percent in 2004 to 20 percent in 2007, and at worst will drop as low as 15 percent.

Numbers alone don’t tell the whole story, however, for the departing lawyer-Senators will be taking with them a wealth of legislative experience far beyond those numbers. The least experienced of the group is eight-year veteran Dunn, whose many years as a practicing trial attorney and dedication to the justice system have inspired him to become the Legislature’s most visible champion of the state’s court system.

Escutia

The remaining departees from the Senate are 12-year veterans Kevin Murray and Chuck Poochigian, 14-year veterans Debra Bowen, Martha Escutia and Bill Morrow, and the current dean of legislative lawyers, 20-year veteran Senator Jackie Speier.

Collectively, that represents a loss of 94 years of legislative legal expertise. Added to the whopping 114 years of such expertise lost in 2004 with the departure of long-time lawyer-lawmakers John Burton, Ross Johnson, Byron Sher and John Vasconcellos, the impact is staggering.

On the addition side of the ledger, Assembly Member Tom Umberg and former Assembly Judiciary Committee Chair Darrell Steinberg are currently odds-on favorites to replace Dunn and the departing Deborah Ortiz (a law school graduate but non-lawyer), respectively. But even assuming that former Assembly Judiciary Committee Chair Ellen Corbett is successful in her primary bid to win the Senate seat being vacated by Liz Figueroa and Tom Harman succeeds to the seat currently held by Congressional aspirant John Campbell, the net loss in legislative/ legal expertise in the Senate since 2004 will still exceed 170 years.

As always, the situation in the Assembly is much more fluid and unpredictable. The number of lawyer-lawmakers in the lower house was expanded recently from 15 to 16 (20 percent) by the special election victory of Ted Lieu in the 53rd Assembly District. Term limits will bring to a close the Assembly careers of six of the remaining 15 lawyer-lawmakers, including Harman, Umberg, 14-year legislative veteran Ray Haynes, Joe Canciamilla, Dario Frommer and Juan Vargas.

However, at this very early stage in the election cycle, and given the large number of candidates running for virtually every open Assembly seat, it is impossible to guess how many — if any — of the attorneys currently running in 10 of those races will win.

The fading impact of lawyer-legislators in California goes beyond a mere reduction in numbers, however. It also can be seen in the influence those lawyer-lawmakers exercise through leadership posts. Since 1973, either the Speaker of the Assembly or the President pro Tem of the Senate — and often both — has been an attorney. That streak was finally broken in December 2004, when Fabien Nuñez was elected Speaker of the Assembly and Don Perata became President pro Tem of the Senate.

Nor is the decline limited to the Legislature. Of all California’s constitutional officers, currently only Attorney General Bill Lockyer is an attorney — the first time since at least 1971 when the profession has been so poorly represented. In fact, when Arnold Schwarzenegger was elected in 2003, it marked only the second time in 65 years that a non-lawyer had served as governor — a streak virtually certain to be extended at least until 2010, since none of the three leading declared candidates for governor in 2006 is an attorney.

Neither of California’s U.S. Senators is an attorney, and the number of attorneys in California’s Congressional delegation has been falling as well — as, for that matter, has the number of attorneys in Congress.