California Bar Journal
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Supreme Court
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legislation are virtually identical to those already required.

“The court can ensure that any particular applicant appointed by the executive or legislative branch has been evaluated objectively by an independent and neutral entity appointed by this court, and possesses the statutory qualifications and attributes, as well as the qualifications required by this court, that are necessary to serve as a State Bar Court judge,” George wrote. He was joined by Justices Marvin Baxter, Ming Chin and Stanley Mosk.

But in separate dissents, Brown and Justice Joyce Kennard expressed grave concerns about legislative and political intrusion onto judicial turf.

Kennard said the Burton legislation is unconstitutional because it “makes the State Bar Court judges subservient to members of the political branches and because it alters the composition of the State Bar Court in a way likely to reduce public confidence in the attorney discipline system.”

Kennard, who was joined by Justice Kathryn Mickle Werdegar, said the California Constitution gives the legislature “no role at all” in the appointment of judges, and warned that “interbranch” appointments must be carefully scrutinized and permitted only under certain circumstances which she said do not exist in this case.

Hearing judges appointed by elected officials are “necessarily subservient to their appointing authorities, which hold the power to determine whether they will continue in office,” Kennard wrote. “. . . This kind of political influence over the performance of judicial duties is constitutionally impermissible.”

Brown’s language was even more scathing, saying she fears for the judicial independence of a tribunal whose judges have political ties to other branches of government. “Who can doubt that, by upholding the law at issue here, the majority blithely welcomes into the judiciary’s own household the specter of ‘political entanglement’ in one of its core functions — the appointment and reappointment of judicial officers; of, in a word, . . . judges,” she wrote.

She said the legislation compromises the court’s inherent power to adopt the rules governing “our own house,” and added, “It is equivalent to this court appointing the membership of legislative committees.”

Saying the preservation of a viable constitutional government “is not a task for wimps,” Brown wrote, “with the decisions of this term, the ceaseless struggle to preserve the independence of the judiciary — a struggle that is the constitutional obligation of this court — has been placed at risk.”

But the majority said the bar court appointments are governed by substantial protective measures. And despite losing the viewpoint of a non-lawyer on the review panel, some of the benefits of a more diverse perspective may be achieved through the nonjudicial appointment of three hearing judges, they said.

The State Bar Court was created by the legislature in 1988 to hear lawyer discipline cases. It consists of a five-judge hearing department and three review judges, all appointed by the Supreme Court prior to the new legislation.

In an unusual move, the court issued with its decision an order outlining procedures for appointing judges under the new law. The governor and Assembly Speaker are each to fill one of two vacancies which will occur among the Los Angeles hearing judges Nov. 1, and the Senate rules committee will fill a vacancy in the San Francisco division of the court.

Among the hearing judges, the terms of San Francisco judge Lonsdale, and Los Angeles judges Carlos Velarde and Madge Watai expire Nov. 1. Only Lonsdale has expressed a desire to be reappointed.

Non-lawyer judge Norian will be replaced and the term of review judge Ronald Stovitz expires Nov. 1. The Supreme Court will make appointments to those slots and retains appointment authority for two hearing judges.

The court also provided for newly staggered terms for all the bar court judges to provide for the orderly re-cruitment and appointment of judges every two years. The appointees of the governor, rules committee and speaker each will serve initial terms of six, four and two years, respectively, subject to reappointment for a full six-year term.