The California Supreme Court upheld recently enacted
legislation permitting politicians to appoint three State Bar Court judges, ruling that
the high court still retains its inherent authority over attorney discipline.
Writing for the majority in a 4-3 decision last month, Chief Justice
Ronald George said the appointment by the governor and the legislature of three hearing
judges does not violate the separation of powers doctrine because it does not defeat
or materially impair our authority over the practice of law.
But in a stinging dissent, Justice Janice Rogers Brown accused her
colleagues of ceding constitutional ground for the third time in three months. The
legislation examined here shows disrespect for this court as a coordinate branch of
government, she wrote. The majoritys abject acceptance of such
legislative impudence goes far beyond comity and cooperation. This is abdication.
The law in question is SB 143, a measure sponsored by Sen. President
Pro Tem John Burton that gives the governor, the Speaker of the Assembly and the Senate
Rules Committee one appointment each to the eight-judge State Bar Court, which presides
over attorney discipline proceedings. Traditionally, the Supreme Court has appointed all
bar court judges.
The legislation also replaces the non-attorney review judge with a
judge who must be a lawyer. The measure was signed last year by Gov. Davis.
Three bar court judges, Presiding Judge James Obrien, Hearing Judge
Nancy Roberts Lonsdale and lay Judge Kenneth Norian had asked the court to strike down the
law, arguing that it violates the separation of powers doctrine and casts a political
tinge on an impartial court.
But the majority disagreed, ruling the Supreme Court retains our
pre-existing powers to regulate and control the attorney admission and disciplinary
system, including the State Bar Court, at every step.
Creating in effect a veto power over the appointments, the justices
kept in place a requirement that all bar court appointees be evaluated by a nomination
committee named by the Supreme Court, and only those found qualified will be eligible for
addition to that safeguard, the justices kept for themselves the authority to appoint the
three review or appellate judges, and as a further assurance of competence, they noted the
qualifications set forth for potential appointees under the new