California Bar Journal
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California Bar Journal

The State Bar of California


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Front Page - September 1998
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Need info about bar members? Look on the net
Western State law school wins provisional approval for ABA accreditation
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You Need to Know
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From the President - A privilege gone awry
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In defense of opinion
Thomas can think as he chooses
Time to drain the 'BOG'
Let's build a stronger forum
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Letters to the Editor
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Trials Digest
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Legal Tech - 10 reasons to ignore 2000 problem
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New Products & Services
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Law Practice - When mediating, let your imagination run loose
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MCLE Self-Study
The Internet and Global Implications
Self-Assessment Test
MCLE Calendar of Events
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Ethics Byte - 'He said, she said' rule for sex
Attorney disbarred after investing client's assets
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Annual Meeting
Did you know these Monterey Peninsula facts?
Scenic, legal visions on the menu
Four vie to lead embattled State Bar
11 seek five seats on bar board
District 2: Three-way race in capital and environs
District 4: Unopposed in San Francisco, Albers is ready
District 7, Office 1: 3 seek southern seat...
District 7, Office 2: ...and also in Los Angeles...
District 3: Two-way race develops in South, East Bay region
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Davis, who has been an inactive bar member since 1989, charged that Gov. Wilson's October veto of the bar's funding bill "gutted" the bar. "This heinous act was a dangerous disservice to the people of California," he said. If he is elected in November, Davis said he will seek legislative protections "to prevent this travesty from occurring again."

Lungren, who received his law degree in 1972 from Georgetown University Law Center, is an active bar member. He said the bar "ought not to engage in pure political advocacy," but should instead concentrate "on serving as the guarantor of the quality and integrity of the legal profession in California."

He added that he favors "a lean approach" over a massive bureaucracy.

Lungren is caught in a bind on the retention election of Chief Justice Ronald George and Justice Ming Chin, both Republicans whom he voted to confirm. As a result of voting to overturn California's law requiring parental consent for teenage abortions, the justices are targeted for removal by some of the same Republican conservatives who back Lungren. Lungren so far remains neutral, saying he has not been involved in the effort to oust George and Chin.

Davis supports the two justices, warning that voters should not tamper with judicial independence.

California Bar Journal posed a series of questions about the bar and the legal system to the candidates. Their responses:

CBJ: What would you do to reform the current jury system, both civil and criminal?

Davis: The current jury system in California suffers from public apathy and lack of public confidence. The dedicated participation of jurors is the cornerstone of our legal system and I would seek to preserve the integrity of the jury system. There have been suggestions to change certain procedural aspects of the jury system, such as reducing jury size, or introducing further modifications to the voir dire process. However, we need to carefully evaluate these suggestions and analyze the results of ongoing pilot projects in these areas. Likewise, a study of the real and financial impact of the proposed one-day one-trial jury system should be undertaken before it is given serious consideration.

California's $5 daily compensation rate is currently the lowest in the nation. The recommendations for increases in juror pay, reimbursement of travel expenses, and provision of child care for jurors require immediate attention. Employer-related measures designed to encourage juror participation include: imposing requirements on businesses to pay jurors for days of absence, providing business with tax-related benefits, and amending the insurance code to provide for disability benefits after the first day of jury service. While jury service is an important civic duty, we should be careful not to place the burdens of that duty on our workers or their employers. Any move to lessen resistance to jury participation through these suggested measures should be balanced with cost concerns and the interests of the jurors' employers. Here, too, a thorough study of these issues is needed before decisions can be reached.

The non-unanimous verdict has also been raised as an area ripe for reform. The effect of the non-unanimous verdict and hung juries in non-capital cases requires serious consideration as we explore such reforms. In the civil arena, the non-unanimous verdict may prove to encourage speedy and efficient resolution of cases in an already congested legal system.

In each of these areas, I look forward to working with the Judicial Council and other specially appointed committees to find the most effective, cost efficient and expedited solutions possible to these problems.

Lungren: Right to trial by jury is one of our fundamental and constitutionally protected guarantees. No reform should be considered which would change in any significant way our reliance on the jury as a finder of fact and vehicle for the delivery of justice. State law can be amended to facilitate local governments' ability to increase juror pay and make jury duty more attractive for working citizens and busy parents. We should examine incentives for employers to encourage jury duty by employees. In public service announcements, citizens should be informed of the positive contributions they make in serving on a jury and also reassured that they will not be subjected to post-trial harassment by counsel or the press.

I have thoroughly examined the question of the use of non-unanimous verdicts in criminal trials, and I am not yet convinced of the need to make any change from our current requirement of a unanimous jury of 12 jurors to convict or acquit a criminal defendant.

CBJ: What steps would you take to break the stalemate regarding the operations of the State Bar? If you are elected governor, what reforms would you demand of the bar?

Lungren: I believe that the State Bar should concentrate on serving as the guarantor of the quality and integrity of the legal profession in California, principally through tough and scrupulous admissions policies and procedures and an effective disciplinary mechanism.

The dedication of time and resources by the State Bar to other services, treated neutrally, would appear to be laudatory, but I believe that the engagement in these services frequently becomes unacceptably politicized over time. The record of the bar is that it has engaged in what is essentially, if not technically, advocacy of matters more appropriately done by others, not by the State Bar. The bar ought not engage in pure political advocacy; bar members litigated and prevailed to prevent their dues from being used without their permission for these purposes.

The most important other service is attorney training, as with MCLE, and training resources, but there are numerous agencies and private concerns that provide these services. The bar should be responsible only for setting and enforcing standards, and that does not require a massive bureaucracy.

As governor, I would listen to all those interested in the integrity of the legal profession, and I would undoubtedly favor those who advocate a lean approach over those who resort first to bureaucratic means to accomplish their ends. Accordingly, it is inappropriate for me to suggest a bar dues level at this time.

Davis: In 1996, the members of the State Bar voted 2-1 to keep California's State Bar unified. The current stalemate regarding the State Bar seems to rest largely on the issues of governance, lobbying and dues levels. After months of stalemate, it is critical for the legislators on both sides of these issues to engage in meaningful negotiations.

The issue of governance is sensitive. The State Bar is specifically commissioned by the California Constitution as part of the judicial branch. Allowing the executive branch or the legislative branch to appoint a majority of the Board of Governors would effectively transform the bar into an arm of the executive or legislative branches. This would most likely increase the level of lobbying by the State Bar, rather than the converse. We must make a genuine effort to strike a balance between recognizing the judicial governance of the State Bar and ensuring that the State Bar serves its appointed purposes rather than becoming primarily a lobbying organization. I am committed to working with both sides of the stalemate until we come to an acceptable and reasonable resolution to these problems.

Access to legal services for the poor is important since the number of attorneys providing full-time legal services to the poor is declining while the number of poor in California is increasing. The Judicial Nominees Evaluation Commission also serves an important function in evaluating judicial nominees and putting the nominees through a rigorous screening process. However, JNE should not emerge as an unfettered restraint on the governor's power to appoint judicial nominees. Finally, continuing education is critical to the integrity and quality of the bar. However, these issues are not at the focal point of the stalemate and at this juncture, the matters that deserve more immediate attention are the divisive issues of governance, lobbying and dues levels.

CBJ: Gov. Wilson has complained often about an overly litigious society and its impact on California's businesses. In the area of tort reform, what would you do to prevent vexatious lawsuits while at the same time protecting the rights of consumers?

Davis: I have long been a supporter of California's businesses. While it is important to provide access to the legal system and redress for wrongs, we should recognize the costs of litigation to our state's businesses and curb overregulation of these businesses. I would seek to preserve the consumers' rights while maintaining a fostering environment for businesses that is competitive with other states.

Lungren: I agree with Gov. Wilson. Lawsuit abuse can destroy jobs, can weaken our business climate and increase the costs for consumers, ultimately harming the very people you would think the system was set up to assist. To stem this tide of abuse, I have advocated for limits on punitive damages, caps on awards for wrongfully fired workers, a modified "loser pays" system, and a sliding scale to cap contingent fees.

I supported three tort reform measures on the 1996 ballot aimed at curbing excessive litigation by creating a no-fault auto insurance system, requiring losers to pay lawyers' fees in shareholder lawsuits and imposing limits on lawyers' contingency fees in civil tort actions. These measures were voted down after more than $14 million was spent to defeat them.

I oppose efforts to undercut California's 20-year-old Medical Injury Compensation Reform Act (MICRA). Punitive damages in tort cases have grown from an average of less than $1 million in 1984 to $6.6 million in 1995, according to one study: California juries returned more than $3 billion in total punitive damages in that period, with most of that amount levied following post-trial motions and appeals.

While I do not advocate eliminating punitive damages, it only makes sense to tie those damages by some formula to "actual" damages or some other standard that reasonably relates the punitive damages to economic or actual damages.

Fortunately, Proposition 213 passed, overwhelmingly, to bar uninsured motorists from claiming "pain and suffering" awards, much as fleeing criminals and drunk drivers are no longer able to collect. Our laws should encourage personal responsibility and accountability, not just endless exposure to lawsuits.

The district attorneys and the attorney general of the state are statutorily equipped to bring suits to protect consumers in our state, in which the goal is to right the wrongs, restore the damage and protect citizens from future harm, not to pull in exorbitant attorneys fees. Provisions in our laws that allow private attorneys to "go fishing" for "consumer" cases for high fees do a disservice to the consumers and the state. I also believe that alternative dispute resolution (ADR) is an important component in civil justice reform, and its appropriate use ought to lessen the burden on the courts and the excessive costs of litigation.

CBJ: Do you favor the retention of Chief Justice Ron George and Justice Ming Chin?

Lungren: I have not been involved in any effort to oppose the retention of Chief Justice Ron George and Justice Ming Chin. As a member of the Commission on Judicial Appoint-ments, I voted to confirm the governor's appointments of both justices.

Davis: Chief Justice George and Justice Chin face serious opposition from anti-abortion activists in the upcoming retention election; both joined the majority to strike the parental consent requirement for minors seeking abortion in American Academy of Pediatrics v. Lungren. Conservatives have also attacked the George Court's ruling on the Three Strikes law, especially the Romero decision (People v. Superior Court), and the court's ruling that a landlord cannot refuse to rent to an unmarried couple based upon the landlord's religious belief that extra-marital cohabitation is "sinful." The principle of judicial independence is overriding, and the California voters should be careful not to turn Chief Justice George's and Justice Chin's retention elections into one-issue, partisan-based fora.

CBJ: The Three Strikes law has been modified by the Supreme Court three times. Is that law as it stands now effective?

Davis: The Supreme Court's first significant ruling on the Three Strikes law came in 1996 in People v. Superior Court (Romero). The Supreme Court gave judges the discretionary authority to dismiss or strike priors under the Three Strikes law where to do so would be "in the furtherance of justice." The court found that allowing only prosecutors — and not judges — to strike priors results in a violation of the doctrine of separation of powers. In its decisions since the Romero case, the Supreme Court has strictly applied the Three Strikes provisions. Examples of the court's strict application can be found in its rulings regarding the qualification of juvenile adjudications as strikes and the court's ruling that an out-of-state conviction also qualifies as a strike.

Statistics from the state attorney general's office for January through December 1997, in selected jurisdictions, show that the California Crime Index dropped 7.3 percent compared to the previous year, notwithstanding continued Supreme Court clarification of the Three Strikes law since mid-1996. While the Three Strikes law does not appear to be disemboweled by the Supreme Court, I have always supported the Three Strikes law and I am committed to maintaining and enforcing an effective and potent Three Strikes law.

Lungren: I believe the "Three-Strikes-and-You're-Out" law is one of the most effective criminal laws in California history. When it first passed, I predicted that it would place heavy demands on our court system up front, but it would in the long run reduce pressure on the courts by slamming the revolving door shut on career criminals. That's exactly what has happened, as we have experienced a 29 percent drop in crime in just four years, the result of Three Strikes and other crime-fighting legislation.

More than 3,800 Californians are alive today who would not be alive if the crime rate of 1993 had continued. Putting away career criminals under Three Strikes is a major reason why, not changes in the state's demographics or the economy.

While I did not agree with the court's decision to allow trial judges to exercise their discretion to strike a felon's earlier violent prior felony to avoid imposing the penalty associated with a third strike, it appears the majority of trial courts are following the law as written.

I support a legislative measure that would constitutionally mandate adherence to the Three Strikes sentencing scheme. It should be remembered that my office successfully defended the Three Strikes law against all major constitutional attacks, including those alleging cruel and unusual punishment, vagueness and retroactive legislation. Juvenile and out-of-state "strikes" have been upheld after my office fought to defend the act. This is a criminal law that has proved its value notwithstanding court decisions affecting certain aspects of it. Where the Supreme Court has modified it, as noted, the legislature can "fix" it, and it will work better still.

CBJ: What can the governor do to restore public confidence in the legal system?

Lungren: A governor can and should vigorously advocate for essential tort reform, seek means to reduce litigation, provide incentives for administrative and contractual settlements, and work with the judicial branch and the legislative branch to promote adequate trial court funding and reform. These reforms should include mandates for the interoperability of information technology systems relied upon by the justice community at large, including the courts, the district attorneys, the state law enforcement agencies, corrections, parole and probation agencies, sheriffs and chiefs of police and our public libraries.

The public's interaction with the justice system depends on information sharing that is efficient, useful and cost-effective, without compromising essential privacy and security. We need adequate funding to make our justice system "public-friendly" and accessible. Public safety, meaning our justice system, constitutes only 8 percent of our state budget, yet it should be one of our highest priorities.

Davis: Recent high profile criminal cases may have contributed to the public's lack of confidence in California's legal system. There have been suggestions that abolition of the non-unanimous jury verdict in non-capital criminal cases may help to restore public confidence. However, the issue must be carefully studied before California makes such a transition. Increased citizen participation in the jury system will foster an appreciation for an understanding of the legal system. We may seek to encourage participation in the jury system by examining and then implementing jury reform measures that make sense. Recommendations that should be carefully assessed include increased juror pay, reimbursement for travel expenses, child care and juror anonymity, where appropriate, in criminal cases. Here again, I am committed to working with the Judicial Council toward real solutions to these issues.

CBJ: Overcrowded dockets and excessive waits to bring cases to trial have long been a problem in California. What would you do to make the justice system more streamlined and more accessible?

Davis: The ability to obtain speedy and efficient resolutions to cases is important. Critics of the legal system call for more judges and court houses. The fiscal feasibility of such increases should be carefully examined. The fast-track system now implemented in certain jurisdictions should also be evaluated to determine its efficacy and true impact on congested dockets to determine whether modifications to the system are warranted. I look forward to working with the Judicial Council and any specially appointed committees to reach solutions to these problems.

Lungren: I oppose the notion that a civil litigant should take a second class role to a litigant in a criminal case. The rights embedded in our Constitution include not only a right to personal safety but also to property. We need an appropriate level of funding for both our criminal and civil cases; the trial court funding legislation passed and signed into law in 1997 is a major step in this direction.

Additionally, there are steps that the trial courts can take that increase efficiencies and streamline the justice process. For example, the Los Angeles Superior Court has taken steps to reduce the number of criminal trials that are delayed. In 1995, the backlog of criminal cases led to almost 600 criminal cases being sent to the downtown civil courthouse for trials. By taking steps to expedite cases, refusing to accept excuses for delay and bringing criminal proceedings to trial in 60 days, the criminal courts dropped by more than 100 the number of cases sent to the civil courthouse in 1996. By expediting criminal cases and encouraging dispute resolution, the courts can streamline their operations and reduce the delay in bringing civil cases to trial.

Also, the courts and other government agencies should employ improved information technology, digital communications and document storage and retrieval, electronic filing and reporting, videoconferencing, and ultimately, "virtual" courtrooms for bringing together witnesses and evidence, and where tremendous cost savings may accrue. Such improvements will make a substantial difference in providing access to the justice system for Californians in the 21st century.

CBJ: With so many competing interests for California's dollars, how will you balance the needs of education, both higher and lower, with the need for more prisons and increased funding for law enforcement?

Lungren: Funding both education and public safety should not be pit against each other as opposing priorities, as appears to be the premise of this question. Both are the duties of government. As governor, I will develop each year a budget after analyzing numerous, complex budgetary demands in the context of anticipated revenues, essential programs, and the ever-changing needs within each sector of state government, public services and our state's infrastructure.

Davis: I believe in tougher criminal penalties. Obviously, harsher penalties and a crackdown on recidivism can lead to prison overcrowding. However, education is the top priority of my campaign, and it is critical to the continued successes of this state. While I believe both are very important goals, I do not believe that increased funding for prisons and law enforcement should come at the expense of our children and our educational systems.

My goal for public education in California is simple: To provide every public school student a clean, safe place in which to learn; competent, well-trained teachers from whom they can learn; and adequate, current textbooks from which to learn.

I believe the key to educational success is to demand more responsibility and more accountability from parents, students, teachers, administrators and society itself. I believe that higher expectations are the key to greater student achievement.