Losers don't forfeit right to dissent

by Jo Ellen Allen

In politics -- and the State Bar is very political -- there are winners and losers. But losers do not forfeit their right to dissent. Lack of respect for dissent and disagreement has plagued the board of governors during the last year, resulting in increased acrimony among members and publication of news articles describing board meetings as "circular firing squads."

One would hope lessons had been learned from the difficult year we have endured, but it seems this is not the case.

On July 16, three public board members testified before the Assembly Judiciary Committee in favor of reducing by at least an additional $25 the annual fees attorneys are required to pay. I was among them. Since then, our action has been characterized as "disloyalty" and an "attempt to destroy the bar." I have even been admonished that once the board makes a decision, we are all "to get behind it."

What is missing here is a total lack of understanding of the democratic process. The fact is, the board does not determine the annual membership fee. The legislature does. The board may recommend, but the legislature decides. Neither the process nor the members of the bar are well-served when attempts are made to stifle alternative views.

At least five board members support a fee reduction, dubiously referred to as "dues." At least six of the 14 lawyers who sought election to the board this summer support some level of fee reduction, and several others are willing to consider it. Apparently, there is significant concern that the bar's budget is either bloated or is subsidizing unnecessary programs not in the members' best interests.

Certainly there is no consensus on what the annual assessment of members ought to be. Nor is there common agreement, even among the three board members who testified before the Judiciary Committee, about which programs or activities should be scaled back or eliminated.

These issues seldom pique the interest of most attorneys, much less members of the legislature. However, the bar's political activities do get attention, and attacking the budget is a potent weapon in political warfare.

Keller v. State Bar and application of the Hudson deduction presumably settled legal questions pertaining to use of members' fees for supporting lobbying activities by the bar. What remains in question is whether the bar exercises its authority to influence the legislature in a prudent manner.

Recently, the board endorsed controversial legislation to raise the cap on statutory limits under MICRA on damages for noneconomic losses. The board has consistently opposed decreased funding or limitations on activities of the highly controversial Legal Services Corporation. The board endorsed a controversial ABA resolution on environmental legislation which clearly violated Keller, but did so by rewriting the resolution to get around Keller and support the ABA's position in a back-door manner. The decision to appeal the recent ruling against MCLE prompted an outpouring of letters to the California Bar Journal opposing the move.

These and other actions have been defended as examples of "exercising leadership" and "doing the right thing." Unfortunately, there is often disagreement over what "the right thing" is. "Exercising leadership" may also be a euphemism for "pursuing my agenda."

An amicus brief filed in Keller noted that "issues pertaining to the administration of justice and the science of jurisprudence are inherently political . . . whether controversial or not, they are political. They are at the heart of what government is about."

The brief also said that critics of the bar's lobbying activities use the terms "political" and "ideological" to "describe positions of the State Bar with which they disagree" and that these are "purely subjective terms." I quite agree! In fact, the political and subjective nature of legislative goals is precisely why the bar should exercise more restraint and prudence in its decision to engage in legislative advocacy.

I will continue to assert that as long as membership in the State Bar is mandatory and fees are extracted forcibly, the board is obligated to avoid as much as possible taking positions which are likely to divide attorneys and to act in the interests of all attorneys. If this means appealing to the legislature to reduce funding for the bar, so be it.

Arguing for a bill to establish religious freedom, Thomas Jefferson said: "To compel a man to furnish contributions of money for the propogation of opinions which he disbelieves is sinful and tyrannical." He was right.

Jo Ellen Allen, director of public affairs for Southern California Edison Co., was appointed to the board by Gov. Pete Wilson.