Monday, July 24, 2006
IN MY OPINION (Column)
MCLE for Judges Is an Ill-Conceived Notion
By JO-ANN W. GRACE
Proposed rules are being circulated that would, in essence, impose MCLE requirements on sitting trial-court judges. Under Rule 6.412(d), each judge would be required to complete 30 hours every three years of “minimum judicial education.”
The proposal, in my view, lacks merit.
Judges, on a day-in, day-out basis deal with the law. They are constantly educated; propositions of law and support for those propositions are put before them.
The lack of need for “minimum judicial education” is seen when one looks at the history of MCLE in California.
The Legislature in 1989 enacted Business & Professions Code §6070, mandating that the State Bar ask the state Supreme Court to adopt a rule authorizing an MCLE program, with exemptions from persons in certain categories. The State Bar complied; the Supreme Court provided the needed rule; the program was launched.
The Third District Court of Appeal invalidated the program based on the exemptions, and the Supreme Court reversed. Chief Justice Ronald George wrote the opinion in the case, Warden v. State Bar (1999) 21 Cal.4th 628.
One of the exemptions then-existing was for retired judges. George said this met the “rational relationship” requirement. Part of his explanation, at 646, was this:
“[B]ecause of the high level of legal skills and qualifications that generally are required to obtain a position as a judge, and because the daily work of a judge involves constant exposure to and analysis of ongoing developments in the law, it would not be irrational to conclude that it is less necessary, for the protection of the public, to extend the MCLE requirement to this small category of attorneys than to other attorneys.” Emphasis added.
This was an exemption for retired judges who had regained status as active members of the State Bar. It is precisely “because the daily work of a judge involves constant exposure to and analysis of ongoing developments in the law” that imposition of requirements akin to MCLE on sitting judges simply makes no sense.
In 1999, the Legislature revamped the MCLE requirements. It retained an exemption for officers and elected officials of the state and their employees, making the finding that these persons “undergo ongoing continuing legal education in their review of the implementation of current statutes and regulations, including any court interpretation of a statute or regulation, and in their consideration and analysis of proposed changes in those statutes and regulations.” It also maintained an exemption for law professors, finding that they “undergo ongoing continuing legal education in their review of the statutes and regulations of this state, including any court interpretation of a statute or regulation.”
There is not a judge in this state who does not “undergo ongoing continuing legal education” in performing the duties of office.
One of the proposed rules would require a judge who got a new assignment to take a refresher course in the area of law if out of that assignment for two years or more. At most, that should be a recommendation. As Chief Justice George noted, there is a “high level of legal skills and qualifications that generally are required to obtain a position as a judge.” Someone who has been a practitioner in, say, family law for 20 years or so, and is assigned to a criminal department for a couple of years upon gaining a judgeship, should not need a “refresher course” before taking on a family law assignment.
The proposals are simply not sensible and should be rejected.
(The writer is co-publisher of the Metropolitan News-Enterprise. She is a member of the State Bar Board of Governors.)
Copyright 2006, Metropolitan News Company