California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - MAY 2002
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Election suit
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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" body.

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.