Tuesday. July 26, 2005
State Bar Rejects Governor’s Bid for JNE Commission Access
Board Votes 11-6 Against Allowing Schwarzenegger Appointments Advisor to Sit In on Sessions
By DAVID WATSON, Staff Writer
Despite a warning from one member that they were “perpetuating a tension” between the State Bar and the governor, the State Bar Board of Governors has voted not to explore rule changes to allow the governor’s judicial appointments advisor to attend meetings of the Commission on Judicial Nominees Evaluation.
The board, meeting Saturday in Pasadena, voted 11-6 to kill the proposal, which was originally made in 1997 by a committee headed by Fourth District Court of Appeals Justice James D. Ward of Div. Two.
Ward’s committee, which had a mandate to review “every aspect of the process by which the State Bar fulfills its statutory obligation to evaluate the qualifications of potential judicial appointees,” was named by then-State Bar President James E. Towery in 1996.
The proposal ran into opposition from local bar associations and others and was not adopted in 1997. But late last year San Francisco attorney Mark I. Schickman of Freeland Cooper & Foreman, then chairman of the JNE Commission, appointed an ad hoc commission committee to review it again.
Schickman, who headed the ad hoc group himself, said yesterday he acted in response to an informal request from John Davies, Gov. Arnold Schwarzenegger’s judicial appointments advisor. Davies also served as judicial appointments secretary under Gov. Pete Wilson from 1995 to 1999.
Schickman said Davies also made the request to State Bar President John Van de Kamp.
Schickman’s nine-member panel recommended that rule changes necessary to implement the proposal not be put out for public comment. The board’s Committee on Communications and Bar Relations endorsed that recommendation, and the full board followed its committee’s lead on Saturday.
Schickman told the board that there would be complex “technical issues” to resolve before Davies could be allowed to participate in the JNE Commission sessions, at which applicants for gubernatorial appointment to judicial posts are rated as exceptionally well-qualified, well-qualified, qualified or not qualified. A confidentiality oath for Davies would have to be developed, and forms—which currently state that the identity of persons providing information to the commission will not be shared with the administration—would have to be modified, he said.
Convincing informants to trust in the confidentiality of the process is already hard, and the proposed change would “make it even harder to get the kind of feedback that is the life blood of what the commission does,” Schickman asserted.
But several members of the Board of Governors noted that they are now permitted to sit in on JNE Commission sessions without signing confidentiality papers.
Sloan: Opposition ‘Silly’
Board member Sheldon H. Sloan, a former Los Angeles Municipal Court judge and a former president of the Los Angeles County Bar Association, said the opposition to Davies’ request was “silly.” Sloan is well-connected in Republican political circles.
The governor’s advisor was only seeking to “assure himself that what was going on was on the up and up,” Sloan said.
“There have been times in the past when the JNE Commission has come up with some pretty skewed results from my point of view,” Sloan declared, citing the commission’s 1996 determination that then-Third District Court of Appeal Justice Janice Rogers Brown was not qualified to sit on the state Supreme Court. Wilson appointed her anyway.
Brown is now on the U.S. Court of Appeals for the D.C. Circuit and was prominently mentioned as a possible successor to U.S. Supreme Court Justice Sandra Day O’Connor before President George Bush nominated Judge John Roberts, also of the D.C. Circuit, for that post.
Sloan said the rating of Brown “sounded like the bar didn’t know what the hell they were doing.” He added that the board would be unwise to act unnecessarily to perpetuate “tension” between the organization which both regulates and represents the state’s lawyers and the Schwarzenegger administration.
The State Bar’s dues bill, which would raise base dues for active State Bar members for the first time since 2000 and more than double inactive dues, has been approved by the Assembly and the Senate Judiciary Committee and is expected to be voted on by the full Senate when it returns from recess in mid-August. If passed by the Senate, the bill would go to the governor for his approval.
In 1997, the veto of a dues bill by Wilson led to a two-year near-shutdown of the State Bar’s activities.
Board member David Marcus of the Century City law firm Marcus, Watanabe Snyder & Dave said the commission is “accountable to no one” and suggested the presence of a representative from the Governor’s Office would “help.”
“I think that a lot of people do inject their political philosophies.”
But board member James A. Scharf of MacMorris & Carbone in San Jose predicted that, if permitted to attend, Davies would show up only rarely to “make sure that nothing bad happens” when a candidate favored by the administration is undergoing review. That could be seen as an “attempt to manipulate” the ratings process, he said.
Board member Jo-Ann Grace, co-publisher of the MetNews, said the ability of the JNE Commission to get “specific information” about candidates from third parties is dependent on the guarantee that the identity of those parties “would never go forward to the governor.” Grace, who noted she served for three years on the commission, said allowing Davies to sit in would damage the “accuracy of the information and therefore the accuracy of the evaluation” of candidates.
Van de Kamp commented that the proposal has been “discussed and argued fairly vehemently” and that the judicial appointments secretaries to previous governors have “thought it was a bad idea” for them to observe the commission sessions.
“I don’t think [the board’s opposition to the proposal] reflects in any way on the present appointments secretary,” Van de Kamp cautioned.
Joining Marcus and Sloan in voting against the motion to kill the proposal were Chico attorney Richard L. Crabtree, Los Angeles Deputy District Attorney Stephen J. Ipsen, Joel S. Miliband of Rus Miliband & Smith in Irvine, and public member John G. Snetsinger, a professor of history at Cal Poly San Luis Obispo. Snetsinger and Marcus co-chair the board’s Communications and Bar Relations Committee, which made the recommendation that the board majority endorsed.
Los Angeles Deputy Public Defender Marguerite D. Downing was the only representative on the board elected from Los Angeles County to join Grace in voting to kill the proposal.
Schickman noted yesterday that he was not a member of the JNE Commission when it rated Brown not qualified, but added that even if he had been he would not have been able to comment on what led to any specific rating.
But he said it spoke well for the integrity of the commission’s work that the only rating cited as problematic was nearly a decade old.
Davies was not available for comment yesterday, but a spokeswoman for Schwarzenegger said the governor’s administration was “disappointed” in the board’s action.
“It was a good idea in 1996 and it remains a good idea,” Deputy Press Secretary Julie Soderlund said of the Ward committee’s proposal.
In other action Saturday, the board:
•Voted 14-2 to split two board committees that had been combined a year ago to form the committee co-chaired by Snetsinger and Marcus. The action was recommended by President-Elect James O. Heiting, a Riverside attorney who will take office as president in September.
The action will restore the board’s Volunteer Involvement Committee and its Stakeholder Relations Committee to their status as separate committees, once again giving the board five standing committees to be chaired by the five elected attorney members of the board serving the final year of their three-year terms.
One of the five lawyers is likely to succeed Heiting as president in 2006, but Heiting said board politics was not the reason he favored a return to the old system, and several board members agreed that the combined committee had not worked well, perhaps because the two committees retained separate identities as subcommittees of the combined group.
The State Bar’s executive director, Judy Johnson, commented:
“We combined committees but really didn’t.”
She added that it was also possible that the “wrong committees were combined,” suggesting that a better plan might be to roll the Stakeholder Relations Committee into the board’s Planning, Program Development, and Budget Committee.
Sloan objected that the five-committee structure “perpetuates this thing about people running for president from the get-go” and called it an “artifice that hinders this board’s operation.”
“It is political whether Jim wants it to be or not.”
But Heiting urged his colleagues to defer to his judgment by voting for the committee structure he recommended for use during his year as president.
“I ask you to trust me on this,” he said.
Only Sloan and Fresno attorney Paul S. Hokokian voted against the change. Marcus abstained and Ipsen had by then left the meeting.
Downing and Grace voted in favor.
•Adopted a 2006 budget calling for nearly $122 million in operating expendituresóalmost $4 million more than anticipated revenues. The budget is contingent upon passage of the dues bill in its current form.
Marcus cast the lone dissenting vote, and Ipsen abstained.
Copyright 2005, Metropolitan News Company