California Bar Journal
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Bar court suit
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the bar’s fee bill, meaning both measures had to pass in order for either to take effect. The bar could not oppose the change without losing its authorization to collect dues from its members.

State Bar Court presiding Judge James Obrien, lay Judge Kenneth Norian and hearing Judge Nancy Roberts Lonsdale are seeking to prevent the Burton measure from taking effect. Opponents of the statute have criticized it as both an unlawful intru-sion into the Supreme Court’s authority over the bar and lawyer discipline and as an injection of politics into what should be a neutral body.

Chief Justice Ronald George hinted that he had little problem with the political appointment of bar judges. Pointing out what he called “a long history of partnership between the legislature and the court,” George asked Wagstaffe, “What is it about this scheme . . . that would cause us to assume the governor and the legislature would appoint people of such little competence it would impair our authority?” He also noted that the qualifications required of judges are essentially identical in both rule 961 and the new statute, and suggested having another lawyer, rather than a lay person, on the review panel could increase the court’s confidence in the judges.

Competence is not the question, Wagstaffe replied. Rather, the issue is whether the legislation improperly interferes with the court’s authority over attorney discipline, he said.

“This statute goes too far,” Wagstaffe said. “We have the legislature abrogating to itself the power to appoint in an area of lawyer discipline.”

Further, he said, the statute defies an existing court rule and permits the legislature to tell the court “who will serve as your masters.

“The rule of court is abdicated by legislative fiat.”

In addition to concerns about the separation of powers, Justice Joyce Kennard wondered whether changing the appointment process would cast a political shadow over the bar court. Would the judges “be seen as beholden to the legislator who appointed them?” she asked.

Wagstaffe quickly agreed, saying the case “poses a substantial appearance of a lack of independence.”

Kennard and Justices Janice Rogers Brown and Kathryn Mickle Werdegar peppered Madeiros with questions about both the practical and the perceived effects of the statute.

They wondered who ultimately controls the State Bar Court and sought to clarify whether the legislature can wrest the appointment authority from the Supreme Court.

Acknowledging that the Supreme Court retains ultimate authority over attorney discipline regardless of who appoints judges, Madeiros said he believes the legislature can exercise some authority over the State Bar “because of its constitutional status as a public corporation, separate from the Supreme Court.”

He described the bar as a creature of government, not part of the judiciary. “I’m not saying the bar belongs to the legislature, but it doesn’t belong entirely to the court,” Madeiros said.

“It may be an agency of government,” Brown shot back, “but it is an arm, an adjunct of this court.” The practical impact of the legislation, she added, is “if the legislature is in control, it is an impairment of our authority.”

Brown echoed Kennard’s concern about the public perception of   politically appointed judges, saying the statute “suggests the legislature wants to appoint [bar court judges] because they want their viewpoint represented.”

Madeiros said after the hearing he thought the justices were “very divided” about the case, but Wagstaffe said he was encouraged. “Many of the justices seemed to acknowledge the need for an independent judiciary, which would be threatened by political appointments,” he said. The chief justice’s questions, he added, show he’s “probing the issue thoughtfully.”

The court has 90 days to rule.