legislation are virtually identical to those already
required.
“The court can ensure that any particular applicant appointed by
the executive or legislative branch has been evaluated objectively by an independent and
neutral entity appointed by this court, and possesses the statutory qualifications and
attributes, as well as the qualifications required by this court, that are necessary to
serve as a State Bar Court judge,” George wrote. He was joined by Justices Marvin
Baxter, Ming Chin and Stanley Mosk.
But in separate dissents, Brown and Justice Joyce Kennard expressed
grave concerns about legislative and political intrusion onto judicial turf.
Kennard said the Burton legislation is unconstitutional because it
“makes the State Bar Court judges subservient to members of the political branches
and because it alters the composition of the State Bar Court in a way likely to reduce
public confidence in the attorney discipline system.”
Kennard, who was joined by Justice Kathryn Mickle Werdegar, said the
California Constitution gives the legislature “no role at all” in the
appointment of judges, and warned that “interbranch” appointments must be
carefully scrutinized and permitted only under certain circumstances which she said do not
exist in this case.
Hearing judges appointed by elected officials are “necessarily
subservient to their appointing authorities, which hold the power to determine whether
they will continue in office,” Kennard wrote. “. . . This kind of political
influence over the performance of judicial duties is constitutionally impermissible.”
Brown’s language was even more scathing, saying she fears for
the judicial independence of a tribunal whose judges have political ties to other branches
of government. “Who can doubt that, by upholding the law at issue here, the majority
blithely welcomes into the judiciary’s own household the specter of ‘political
entanglement’ in one of its core functions — the appointment and reappointment
of judicial officers; of, in a word, . . . judges,” she wrote.
She said the legislation compromises the court’s inherent power
to adopt the rules governing “our own house,” and added, “It is equivalent
to this court appointing the membership of legislative committees.”
Saying the preservation of a viable constitutional government “is
not a task for wimps,” Brown wrote, “with the decisions of this term, the
ceaseless struggle to preserve the independence of the judiciary — a struggle that is
the constitutional obligation of this court — has been placed at risk.”
But the majority said the bar court appointments are governed by
substantial protective measures. And despite losing the viewpoint of a non-lawyer on the
review panel, some of the benefits of a more diverse perspective may be achieved through
the nonjudicial appointment of three hearing judges, they said.
The State Bar Court was created by the legislature in 1988 to hear
lawyer discipline cases. It consists of a five-judge hearing department and three review
judges, all appointed by the Supreme Court prior to the new legislation.
In an unusual move, the court issued with its decision an order
outlining procedures for appointing judges under the new law. The governor and Assembly
Speaker are each to fill one of two vacancies which will occur among the Los Angeles
hearing judges Nov. 1, and the Senate rules committee will fill a vacancy in the San
Francisco division of the court.
Among the hearing judges, the terms of San Francisco judge Lonsdale,
and Los Angeles judges Carlos Velarde and Madge Watai expire Nov. 1. Only Lonsdale has
expressed a desire to be reappointed.
Non-lawyer judge Norian will be replaced and the term of review judge
Ronald Stovitz expires Nov. 1. The Supreme Court will make appointments to those slots and
retains appointment authority for two hearing judges.
The court also provided for newly staggered terms for all the bar
court judges to provide for the orderly re-cruitment and appointment of judges every two
years. The appointees of the governor, rules committee and speaker each will serve initial
terms of six, four and two years, respectively, subject to reappointment for a full
six-year term. |
