Wednesday, June 28, 2006
Qualifications for Judicial Office Should Be Revamped
The election on June 6 of the “Bagel Lady”—a woman who has been admitted to law practice in California but who has spent by far the better part of the past 10 years on inactive bar status running a bakery and sandwich shop—points to the infirmity of the state constitutional provision governing eligibility for judicial office.
Art. VI, §15 of the state Constitution provides:
“A person is ineligible to be a judge of a court of record unless for 10 years immediately preceding selection, the person has been a member of the State Bar or served as a judge of a court of record in this State.”
The word “member” includes both active and inactive members, as discussed here yesterday.
That means that Lynn Olson of Manhattan Bread & Bagel was lawfully elected as a judge of the Los Angeles Superior Court—though elected through ignorance on the part of the majority of the voters as to the respective qualifications of the candidates.
In past years, candidacies of lawyers clearly unfit for judgeships have not drawn attention to defects in the eligibility requirements simply because, with one notable exception, they didn’t win. The losing candidates have included Stuart Hirsh, who ran for the Los Angeles Superior Court in 1994 at a time when he was fighting State Bar disciplinary charges on the ground that he had psychiatric problems. (The following year, Hirsh was placed on involuntary inactive status, and the year after that, was disbarred.) Other candidates in recent years have included a pharmacist, an engineer, a police officer, and a computer programmer. One aspirant in the June 6 primary, Robert Davenport, has never represented a client in a California courtroom (other than himself), is apparently unemployed, and is drawing military benefits based on a foot fungus. The campaigns of all of these candidates were all scarcely financed.
The one misfit who won was an obscure lawyer of meager ability who ran against a judge of the Citrus Municipal Court in 1992. The victory by Patrick Murphy—who was labeled “not qualified” by the Los Angeles County Bar Assn. (and was) is generally attributed to the foreign-sounding name of the incumbent, listed on the ballot as Abraham Aponte Khan. Murphy, elevated to the Superior Court by virtue of unification, would up resigning to block removal by the Commission on Judicial Performance.
Olson, also rated “not qualified” by LACBA, targeted, as Murphy did, an incumbent with a foreign-sounding name. Too, Olson spent about $120,000 (and had a professional campaign consultant guiding her effort, gratis.)
Unsettling as the thought is, even Hirsh might have been able to defeat Khan or Janavs (before he was disbarred, that is), had his campaign coffers been filled.
Change, clearly, is needed.
We think there is a problem with putting all inactive members (who cannot practice law and need not fulfill any MCLE requirements) in the same category with active members. We also see a problem with active members being eligible for election or appointment to the bench when they have veered into non-law related lines of work.
It is troubling enough that under §15, any lawyer who has voluntarily enrolled as an inactive member during the “10 years immediately preceding selection,” and drifted into an area unrelated to law, would be eligible for judicial office.
What should be of greater concern is that the State Bar’s placement of lawyers on involuntary inactive status would not affect eligibility for a judgeship (absent a state Supreme Court disavowal of a literal interpretation of an unambiguous state constitutional provision).
As noted, Business and Professions Code §6003 declares lawyers on both active and inactive State Bar status to be “members.” But inactive members are not solely those who have decided to do something other than practice law. Under §6005, they include those “enrolled as inactive members by action of the board of governors as in Section 6007.”
Sec. 6007 authorizes placing a member on involuntary status for such reasons as he or she having been declared insane or mentally incompetent, being unable to perform services competently because of habitual drug or alcohol use, constituting a substantial danger to clients or the public, or being the subject of a disbarment proceeding.
Also, under §6070, an active member who does not comply with MCLE requirements “shall be enrolled as an inactive member” and a lawyer who does not honor a fee-dispute award is, under §6203, to meet the same fate.
Yet, these persons are, even while on involuntary inactive status, “members” of the State Bar. It is, of course, inconceivable that voters would elect someone who is barred from practicing law because, for example, he’s a heroin addict. Or is it?
Under the current wording of Art. VI, §15, even lawyers suspended from practice would be eligible for judgeships.
A lawyer, whether suspended for non-payment of bar dues or for purposes of discipline, is still a “member.”
In People v. Barillas (1996) 45 Cal.App.4th 1233, the Court of Appeal for this district declined to reverse a conviction on the ground that the defendant’s lawyer was, at the time of the trial, under suspension. Then-Presiding Justice Charles Vogel noted at 1240:
“Notwithstanding [attorney W. Merrill] Davidson’s 60-day suspension, he was still an attorney at law...although deprived of the status of being an active member of the State Bar.... Only a disbarred attorney is stricken from the roll of attorneys....”
Other cases are to the same effect.
As we see it, the constitutional provision should, at a minimum, spell out that in order to qualify for a judgeship, the member be “in good standing”—that is, not under suspension and not involuntarily enrolled as an inactive member.
That’s the least that should be done. On the other hand, let’s not go too far. Suspension or involuntary inactive status during any portion of the past 10-year period should not preclude attainment of judicial office. Attorneys have, for example, incurred suspensions because they assumed their firms had dutifully paid their dues while, in fact, a secretary slipped up.
Also, requiring 10 years of active membership or service as “a judge of a court of record in this State” immediately preceding election or appointment would be too limiting. Pepperdine Law School Dean (Watergate prosecutor and former Judge) Kenneth Starr would be ineligible under such a standard because he didn’t accumulate MCLE credits for a spell. U.S. Supreme Court Justice Anthony Kennedy, if he wanted to return to his hometown of Sacramento and serve as a Superior Court judge there, would not qualify under such a standard, though he has been admitted to the State Bar of California and practiced here for more than 10 years; he’s not “a judge of a court of record in this State.”
What we suggest is that a minimum of 10 years of active membership, in the aggregate, be required—as proposed by AB 2519. The problem with that bill, as noted yesterday, is that it seeks to accomplish by legislation that which can only be effected through a state constitutional amendment.
We also think that voluntary inactive membership should count toward the 10 years if the member is engaged fulltime in specified pursuits within the legal field such as teaching at a law school.
On the other hand, inactive members who have not been working in the field of law, and do not have an aggregate of 10 years of active membership status, would be weeded out. That, we think, would be a good idea, as demonstrated by the June 6 mishap.
This is not, however, a complete answer. Had Olson maintained active status though not practicing law, it would have meant that she would have been subject to MCLE requirements—but that, alone, would not have equipped her for service as a judge.
We believe that some form of certification of fitness for judicial office ought to be developed. The State Bar, which certifies applicants as fit for licensure as lawyers, is the appropriate body to undertake that task.
At present, the State Bar Commission on Judicial Nominees Evaluation rates those applicants for appointment to judgeships, at all levels, whose names are submitted to it by the governor.
A constitutionally created board could certify attorneys as minimally qualified for trial court service, and nothing more. Or, it could rate candidates for election to the Superior Court, perhaps with the ratings appearing on the ballot. It could thus operate independently of JNE—or, it could subsume all of its functions, including the evaluation of appellate court applicants.
Thought might also be lent the idea of administering a special examination for would-be California judges, centering (unlike the State Bar exam) on California law and procedures.
While the need for change is manifest, the form of the change should be deliberated carefully. Toward that end, we urge Chief Justice Ronald George to appoint a commission to explore the various options and to formulate a proposed revision to Art. VI, §15 to tighten, rationally and reasonably, requirements for election or appointment to the bench in California.
Copyright 2006, Metropolitan News Company