Tuesday, June 27, 2006
There’s Only One Route: Amend the State Constitution
Something needs to be done.
That’s the cry in the aftermath of the voters’ grand gaffe on June 6 in electing a woman to the Los Angeles Superior Court who has spent most of the last 10 years on inactive State Bar status. The electorate chose her over Dzintra Janavs, a 20-year veteran of the bench widely regarded as brilliant.
Views differ as to just what needs to be done.
The state Constitution sets forth as a qualification for judicial office 10 years of membership in the State Bar immediately preceding election or appointment. One reader—no names but you have certainly heard of him—has suggested to this newspaper that the seating of the election victor, Lynn Olson, could be blocked through court action based on her failure to maintain active bar status during the entirety of the 10-year period preceding her election. As the reader sees it, the statute that proclaims inactive members to be eligible for the bench adds to the requirements for judicial office set forth in the state Constitution, something the California Supreme Court branded as impermissible in the 1959 decision upholding the conviction of rapist/slayer Caryl Chessman (executed in 1960).
AB 2519, as amended in the Senate last Friday, would provide that while inactive members are “members,” a candidate or applicant must have a total of 10 years of active membership to be eligible for the bench.
In our editorial of June 8, we commented: “Whether a statutory change would do the trick or a constitutional amendment would be necessary, the election of the ‘bagel lady’ points to the need for a revision of the qualifications for office.” Lending the matter further consideration, our view is that any change would have to come through an amendment to Art. VI, §15 of the state Constitution. Also, we believe that Olson’s right to assume office is unassailable.
Here’s the relevant background:
1879: Art. VI §23 was adopted as part of the new state Constitution. It read:
“No one shall be eligible to the office of Justice of the Supreme Court, or to the office of Judge of a Superior Court, unless he shall have been admitted to practice before the Supreme Court of the State.”
In 1904, reference was added to members of the newly created district courts of appeal.
1924: The section was amended to read:
“No person shall be eligible to the office of a justice of the supreme court, or of a district court of appeal, or of a judge of a superior court, or of a municipal court, unless he shall have been admitted to practice before the supreme court of the state for a period of at least five years immediately preceding his election or appointment to such office.”
1927: The State Bar Act was enacted on March 31 and became effective on July 29. It provided for two categories of members: “active” and “inactive.”
1937: The California Supreme Court disbarred a lawyer for falsely stating in a July, 1936 declaration of candidacy for the Los Angeles Superior Court that his occupation during the past three years had been that of a lawyer when, in truth, he had been under a three-year suspension since December, 1935. The 1924 version of Art. VI, §23 was in effect when the California Supreme Court said in Johnson v. State Bar, 10 Cal.2d 212, at 216:
“It follows that no one is eligible to hold the office of superior judge who has not been an admitted practitioner before the Supreme Court of this state for a period of five consecutive years immediately preceding his election or appointment to such office. Certainly an attorney who has been suspended from the practice of law during this period cannot successfully claim to be eligible….It is self-evident, we think, that said provision requires as a fundamental qualification for the office of superior judge, that the candidate for such position be qualified as an attorney actually entitled to practice in the state courts....” (Emphasis added.)
That opinion dealt with an attorney who was ineligible for the bench because he had been under suspension. However, it would seem to apply equally to a person on inactive bar status; that person could not practice and therefore would not be a “practitioner”; an inactive member is not “actually entitled to practice in the state courts.”
1966: As part of a ballot proposition which effected constitutional changes, §23 was repealed and supplanted by the current §15, which reads:
“A person is ineligible to be a judge of a court of record unless for 5 years immediately preceding selection to a municipal court or 10 years immediately preceding selection to other courts, he has been a member of the State Bar or served as a judge of a court of record in this State….”
A 1980 Attorney General opinion observed in the course of its discussion that the difference in wording of the old §23 and the new §15 is inconsequential. If that were so, Johnson v. State Bar would still be applicable and active membership in the State Bar (or holding a judgeship) during the entirety of the preceding 10-year period would be a requirement for a Superior Court judgeship.
Any such a conclusion would not be supportable, however, because the new §15 requires simply that a person ascending to the Superior Court or higher have been a “member” of the State Bar for 10 years, and does not say “active member.” By 1966, a statute classifying lawyers on inactive status as “members” had been on the books for 39 years. The meaning of “member” in §15 cannot reasonably be construed to be more limited than the meaning long-established by statute.
In fact, the Attorney General opinion noted “that inactive members are members of the State Bar. (§6006.)”
It’s true that under the ballot measure, the requirement for membership on courts above the Municipal Court was raised—with five years of membership being increased to 10 years. It might well be that the drafters of the proposition did not really intend to loosen the requirement by rendering inactive members eligible for the bench. Nonetheless, the “plain meaning rule” prevails over sheer speculation.
1989: These words were added to §6006: “Those who are or have been enrolled as inactive members at their request are members of the State Bar for purposes of Section 15 of Article VI of the California Constitution.”
This would appear to have created nothing more than a security blanket for attorney/legislators who, newly faced with term limits, contemplated seeking judgeships and had concerns over the effect of having been on inactive status.
Certainly, our reader, alluded to above, is correct that if the added words contradicted Art. VI, §15, the constitutional provision would prevail. In People v. Chessman (1959) 52 Cal.2d 467, at 500, it was said of §15: “This constitutional requirement is generally regarded as exclusive and legislative attempts to add qualifications have been held unconstitutional.”
However, since 1927, being on voluntary “inactive” status has, by statute, been a form of membership, and Sec. 15 does not expressly or impliedly abrogate that statutory expression. Plainly, there is no conflict between the constitutional provision and the statute.
If §6006 were re-worded as proposed in AB 2519, it would retain verbiage that inactive members are “members” for purposes of Art, VI, §15, but would add: “provided that they have been active members for at least 10 years.” This would do precisely what Chessman forbids: statutorily adding to the qualifications set forth in the state Constitution.
We believe it must be concluded that since 1966, those, such as Olson, who have been inactive members of the State Bar for all or any part of the preceding 10-year period have been eligible to run for or be appointed to the Superior Court. To change that in any respect would require an amendment to Art. VI, §15.
Tomorrow we’ll set forth why we believe a change should be made.
Copyright 2006, Metropolitan News Company