liable for their activities," he said.
He suggested a model like the Foundation of the
State Bar, a separately incorporated non-profit organization with its
own board and governance which, although independently funded, still
collects donations through the bar, has office space at bar
headquarters and is allowed to use the State Bar name.
"We would contract with them," Babcock said.
"If we come up with a reasonable approach and it's clear the bar
can provide enough support to them, I think they'll do it." He
said he hopes a change might happen by the fall.
Bar President Karen Nobumoto appointed the Task
Force on the Conference of Delegates when she took office in
September, coincidentally about an hour after the conference rejected
a hotly debated resolution to spin off from the bar. "We had spent
several years in discord where the staff and the board and the
conference could not see eye to eye," she said. "I felt it was
important to resolve our outstanding issues and pick an arrangement we
could live with."
Nobumoto said she doesn't know what the final
outcome will be, but "I want everybody to figure out a way to get
along and stop the backbiting."
The Conference of Delegates offers an opportunity
for members of local, specialty and minority bar associations
throughout the state to have a say in the law-making process in
California. It has a long tradition of providing assistance to
legislators by both proposing new laws or amendments to existing
statutes and helping lawmakers analyze pending bills. For the most
part, that advice deals with often mundane details of interest only to
In recent years, however, its positions on
controversial issues have been frequently perceived both in Sacramento
and by many bar members as too liberal and its occasional forays into
the political arena have gotten the bar into hot water. In the Keller
v. State Bar of California decision, for instance, the U.S. Supreme
Court pointed to a conference resolution to restrict nuclear power
plants when it ruled the bar could not use mandatory member dues to
support political lobbying.
Other resolutions, ranging from lifting the cap
on medical malpractice judgments to legalizing prostitution and
dumping the death penalty, became enough of an irritant to former Gov.
Pete Wilson that he cited the conference's activities when he vetoed
the bar's dues bill in 1997, a move which led to the virtual
shutdown of the bar the following year.
Self-funded but limited
Part of the compromise to finally win a fee bill
included a requirement that the conference be funded voluntarily,
without benefit of any member dues.
Since that time, the conference has chafed under
restrictions the bar has placed on it. Because it is self-funded, its
members believe the group should have the freedom to take any stand it
wants on proposed legislation. The bar's board of governors,
however, has refused to provide that freedom and requires that all
conference activities fall within the purview restrictions imposed by
Keller and other court decisions.
In addition, the conference must reimburse the
bar for certain services, such as collection of donations and legal
analysis of legislation it wants to address.
"Unfortunately, we have not been able to recast
the conference in a way that would allow them to return to an open
debate of all issues confronting California law without fear that they
would interfere with the security of the State Bar as a whole," said
Scott Wylie, a member of the board of governors who also serves on the
task force. "That has frustrated them, and I know it's frustrated
the board and the staff."
Stephen L. Marsh, a San Diego lawyer who is
chairman of the conference's executive committee, said it's
premature to think the bar and the conference will divorce. "I
don't think we're severing our relationship," he said. "It's
more like a child moving into the backyard guest house. I think
that's a good idea."
He acknowledged the relationship between the
organizations needs clarification in light of court rulings and
legislation. "They raise all these questions about autonomy and
decision-making, how we spend our money and purview."
At the moment, however, Marsh said he feels the
relationship between the conference and the State Bar is strong and
friendly because "we haven't had a disagreement with the board
about our resolutions."
Former conference chair Diane Wasznicky, who now
serves on the task force, said the key issue is one of control. "Our
argument is if it's our constituencies' money and they're doing
work, it should be our right to regulate ourselves. We recognize there
has to be some kind of regulation, but why can't we have control
over what we do?"
She said delegates to the conference have felt
muzzled since the Keller decision was handed down a decade ago.
And she said she understands the bar "is
terrified that something we do will be reflected on them." That
fear, she said, is now so ingrained that she feels it can't be
changed, regardless of any reassurances the conference might try to
She insisted the conference has learned it must
exercise caution. "The one thing that's really clear is that the
leadership of the conference is very aware there's no way we can go
back to pre-Keller days. There has to be some kind of parameters, call
it purview, on the discussions and debates."
Wasznicky also said there is a legitimate concern
among delegates that the conference might not survive if it separates
completely from the bar. "We want to have some kind of
relationship," she said, "and we're exploring a contractual
relationship with more independence on our part."