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. |
