lawyer, sued the bar in March, alleging that its
rules restricting eligibility to run or vote for the board are
unconstitutional. He asked that the bar create a special district for
the nearly 10,000 members who practice out of state.
He challenged two state statutes, Business &
Professions Code §§6018 and 6015, which make lawyers eligible to
vote or run for the board if they maintain their principal office for
the practice of law in one of nine existing State Bar districts. Those
statutes, Hoffman claims, violate the First Amendment (by
discriminating against the views of out-of-state lawyers) and the
Equal Protection and Privileges and Immunities clauses because the
right to vote is fundamental.
During an hour-long hearing in Oakland, San
Francisco attorney James Wagstaffe, representing the State Bar, said
it is not the role of the court to rewrite a 75-year-old state statute
that is fully consistent with constitutional standards.
He said the fundamental right to vote is limited
to voting in a sovereign governmental entity, a status the State Bar
does not possess. "The bottom line is to ask if there is a
fundamental right to vote in an administrative agency," Wagstaffe
told the judge. "The answer is no."
Further, he added, Hoffman has the right to vote
- in Arizona, whose bar has similar voting procedures to California.
Armstrong pointed out that the Keller v. State
Bar decision of the U.S. Supreme Court a decade ago distinguished
between "what the State Bar does and what traditional government
agencies do" and suggested that the bar is a "purely advisory"
But Barnett argued that in fact it "wields
governmental powers" by regulating the practice of law in
California, setting dues, establishing continuing education
requirements and overseeing the discipline of its members. Because all
attorneys who belong to the California bar are subject to its
regulations, he said, they should be entitled to the same rights,
including the right to vote and run for the board of governors,
regardless of place of business.
Hoffman "is substantially affected and
interested" in the activities of the California bar and "there is
no sharp distinction between him and someone who has his principal
office here," Barnett added.
He also contended that the views of Hoffman and
other out-of-state lawyers, which he said are likely to be different
from the views of California lawyers, are not heard by the bar and
therefore their First Amendment rights are violated. "We have de
facto discrimination based on point of view," he claimed.
Wagstaffe responded that any out-of-state lawyer
is free to be heard by the State Bar and noted that Hoffman became a
plaintiff in the suit because he wrote a letter which was published in
the California Bar Journal.
Armstrong agreed, finding no violations of the
First Amendment, "no restrictions on speech or association," and
pointing out that "the ability to express views is unfettered."
In her decision, the judge also said Hoffman
failed to demonstrate that he had been harmed and that the greater
risk of harm fell on the bar.
The board of governors, in the midst of its
annual election, is divided into nine geographic districts, each
represented by one or more attorney members who constitute 16 of the
23 members. Six public members are political appointees and the
president also sits on the board.
President Karen Nobumoto said she was heartened
by Armstrong's decision and hoped Hoffman would take his complaints
to a board elections committee which is currently examining reforms.
Barnett indicated he planned to appeal but had
not done so by press time.