In 1988, State Bar leaders joined with the bar
discipline monitor, consumer groups and bar staff to support legislation for a model,
independent State Bar Court. Serving as the Supreme Courts court in policing
attorneys who are admitted to practice before it, the reform created a panel of five
hearing judges and a three-judge review department all appointed to six-year terms
by the California Supreme Court. One of the three review judges was to be a non-lawyer.
Professional and independent, its competence has won praise from both respondent and
prosecutor sides, and the Supreme Court had such confidence in it that State Bar Court
decisions are now granted presumptive finality status.
In 1999, the legislature enacted SB 143 (Burton) which allows
legislative leaders to appoint two of the five State Bar Court hearing judges, the
governor to appoint a third, and it abolishes the lay judge position in the review
department. On June 1, the Supreme Court narrowly upehld the law [Obrien v. Jones 23
Cal.4th 40 (2000)].
The majority and dissenting opinions are scholarly explications of
historic separation of powers doctrine. The majority noted that the Supreme Court still
appoints the review judges and the persons who rate the qualification adequacy of State
Bar Court candidates, held its nose (in some unconcealed discomfort), and signed off on
the altered structure. But the obeisance of the court will not be regarded as a sign of
respect for the participatory rights of other branches in the real politik of Sacramento,
but as a sign of weakness, inviting further incursions.
The most important problems with the new arrangement are not
discussed in the learned Obrien dissent of Justice Kennard, for they are not to be found
within the meaning of the 1889 case of State v. Noble, nor in James Madisons
statement of intent to the First Congress. The here and now problems include the
These are not appointments with occasional
electoral confirmation common in our third branch. These are appointments and
reappointments by the same appointing authority. Thats right; in mid-term, as you
sit on the bench making your findings of fact, you shortly will face a fateful
reappointment decision by a legislative leader.
Legislative leaders live through
(some would say for) ex parte contacts.
Attorneys dominate Capitol
advocacy, permeate the 1,600 full-time registered lobbyists (13 per legislator) and are
active in larger numbers on behalf of monied clients.
California has no campaign
spending or contribution limits in effect whatever at the state level, and its legislature
allocates $100 billion in public monies per year and enacts laws touching every profession
Many of the activities of
attorneys in the political arena are appropriately monitored by the State Bars
discipline system. Indeed, the bar conducted an inquiry into former Speaker Willie
Browns legal practice while he dominated the legislature. That is not to imply
wrongdoing, but obvious jurisdiction.
It is not unheard of for
political activists or special interests with a lot at stake in Sacramento to make
accusations of unethical conduct about attorneys working the other side.
Of course, the public needs an independent State Bar Court. And so
does the profession. Attorneys challenge the executive branch and the legislature. That is
one of our most important jobs. And after 35 years of it, I can tell you, it aint
The courts already bend hard to sustain the practices of their
colleagues in the other two branches; the outstanding judicial bias is to support the
system. Checking it is difficult enough without that political systems involvement
in the appointment and reappointment of folk making the critical trial level findings over
accusations which could permanently pull your ticket to practice.
And the slippery slope argument, which is often unpersuasive, has
force here. For how do you draw the line once you say they can appoint and reappoint?
Are three-year terms unconstitutionally intrusive? Two-year terms?
Annual terms with annual reappointment by legislative leaders?
Or how about legislative appointment of all hearing and review
judges? If the State Bar Court can be reduced from eight Supreme Court appointments to
five, is five to three unconstitutional? Five to one?
Sen. John Burton is a smart and humane fellow. He believes this
alteration is for the best. But he has an understandably generous view of the political
process he partly dominates.
And isnt everything really politics in the last analysis anyway
(a term not intended pejoratively)? Dont courts in fact make decisions based on
personal politics and biases, as the critical legal studies movement has long contended?
After all, isnt politics about inclusion, participation and breadth, and
doesnt expanding the court give it more credibility, not less?
I understand the argument. The problem is, everything in its place.
And although it is not often enough achieved, there is a special place for the ideal of an
independent decision made on the merits: our courts of law. The critical legal scholars at
Harvard have a strong case that judges exhibit profound bias in their decisions, but that
should not be our aspiration for them.
There are degrees of bias. And where the law is applied as
objectively as an imperfect human being can manage to a set of facts, consistent with the
spirit and intent of a public law or policy, some of us are much pleased even when
we wish the policy were different. We have all seen that agonizing attempt made not only
by judges, but time and again by juries.
In this one part of our system, what team am I on, who do I
identify with, how does it relate to my own ambitions or problems? should not be
determinative. We need to have a quiet place where that truly judicial effort is made, and
to remove as much temptation and distraction as possible so it will most likely take
place. It is that crucible and that ideal which the Burton statute and the Obrien decision
upholding it compromise.
Robert C. Fellmeth,
discipline monitor of the State Bar from 1987-91, is Price Professor of Public Interest
Law at the University of San Diego School of Law.