Arizona lawyer who wants to vote here loses his appeal

An Arizona lawyer who also belongs to the State Bar of California and wants to run for and vote in its elections lost again last month — for the third time.

A three-judge panel of the California Court of Appeal ruled unanimously that the statutes governing elections for the bar’s board of governors are constitutional.

Louis J. Hoffman, a patent specialist who practices in Scottsdale, Ariz., had argued that he has a fundamental right to vote for bar officers because he is an active member of the State Bar of California. But the court said Business & Professions Code §§6015 and 6018, which require that attorneys maintain their principal place of business in California in order to vote in bar elections, violate neither the equal protection or free speech protections of either the federal or state constitutions.

“The in-state principal office requirement set forth in §§6015 and 6018 advances California’s worthy interests in fostering local participation in the practice of law; recognizing and addressing issues unique to the diverse districts in this state; and promoting and preserving the effective regulation of California’s legal profession by valuing the investment of constituents who regularly practice here,” wrote Justice Timothy A. Reardon.

Justices Laurence Kay and Maria Rivera concurred.

Hoffman, represented by Boalt Hall law professor Stephen Barnett, had characterized the matter as a right to vote case, arguing that because he has the same obligations and pays the same dues as California bar members who practice in the state, he should be able to vote in bar elections.

To Hoffman’s contention that the court must apply a strict scrutiny test to his equal protection argument, Reardon wrote, “We reject this claim and, testing instead for a rational basis, determine that the statutes survive constitutional inspection.” The court also found no constitutional basis for any free speech claim.

Barnett, who has sued or threatened to sue the State Bar several times in recent years, first filed the lawsuit in federal court in February 2002, arguing that the rules governing bar elections are unconstitutional. After Judge Saundra Armstrong Brown rejected all his arguments, Barnett refiled the case in state court, challenging the election provisions as unconstitutional under state law.

The Superior Court denied his petition in January.

Fewer than 20 percent of eligible voters typically vote in any election for the Board of Governors.

Bar lawyers argued that the right to vote doesn’t apply to State Bar elections because although the bar is a governmental entity, it does not exercise sovereign powers, a position the court accepted. Conceding that the bar “has a large measure of self-government,” Reardon said that nonetheless, the California Supreme Court retains “inherent and primary regulatory power” over admissions and discipline, and other programs are mandated by the legislature. “It is evident the State Bar is a limited, special-purpose unit of state government,” Reardon wrote.

The court also agreed with bar attorney James Wagstaffe that the one person-one vote rule does not apply to a state bar and that imposing a geographical restriction on voting is proper.

“Reserving the right to vote to those who practice regularly here and thus are most affected by the State Bar’s regulation of the profession is akin to reserving the vote on municipal affairs to those residing within the municipality’s borders, notwithstanding direct and indirect impacts on nonresidents,” Reardon wrote.

Despite the clear victory for the bar, the judges said the lawsuit raised policy questions that could lead to eventual changes in the in-state principal office requirement, given the mobile nature of legal practice and high-tech communication advances that encourage multijurisdictional practice.

“We can contemplate a day when the State Bar’s multijurisdictional task force, some other committee of the State Bar, the board or the legislature itself takes up the issue and puts it to rigorous examination.”