Wednesday, September 3, 2008
Page 7
PERSPECTIVES (Column)
State Bar Speakers: Last Year an Anthropologist, This Year, an Oceanographer
50 Years Ago, U.S. Attorney General Speaks; 45 Years Ago, U.S. Chief Justice
By ROGER M. GRACE
Gosh, I’m excited. I’ll have the opportunity to hear a talk by Sylvia Earle, an environmental advocate and oceanographer. She’ll be speaking at the State Bar convention in Monterey at the opening-day lunch on Sept. 25. I wonder if they’ll be giving MCLE credit.
Well, probably not. Earle won’t be addressing any legal issues. She’s not a lawyer.
According to the State Bar website:
“With her beautiful, poetic style, Sylvia Earle mesmerizes audiences with stories from her more than thirty-year career beneath the sea—sharing her joy of discovery, and expressing how that joy can help save the world.”
That’s all very nice. But what’s the relevance to a State Bar convention?
At the last conclave, there was no major speech by a lawyer or a judge.
The main speaker, appearing at the Saturday lunch, was Jane Goodall, an anthropologist. Why? Because then-State Bar President Sheldon Sloan and his wife are devotees of Goodall. The night before her speech, they were co-sponsors of a major fundraiser for her.
Speaking at the Friday lunch was Los Angeles Mayor Antonio Villaraigosa—someone who wanted to be a lawyer but couldn’t pass the bar exam. Why was he a speaker? Sloan is a City Hall lobbyist and a buddy of the mayor.
Also palavering from a podium, at the Thursday lunch, was James Bradley, author of a book on World War II.
The State Bar had no dinner meetings.
(A contributing editor of Newsweek, a nonlawyer, spoke before the California Women Lawyers. Their annual dinner is held in connection with the State Bar convention, but is not a State Bar event.)
This year, under President Jeff Bleich of San Francisco, there’s a change for the better inasmuch as the main speaker will be Drew Days, former solicitor general of the United States. Also delivering an address will be Thomas A. Daschle, former Senate Democratic leader, an attorney.
(The CWL will hear remarks by California Chief Justice Ronald M. George.)
But departure from the tomfoolery of last year has not been complete, given the slating of Earle as a speaker. The State Bar convention is not a chautauqua, it is not a town hall. And the State Bar this year has hardly assembled as impressive an array of speakers as it has in the past, and could now assemble, if it put forth some effort.
Not only is a talk on flora and fauna in the depths of the oceans irrelevant, it’s outside the rules.
Art. 5, §6 of the State Bar Rules and Regulations says: “The Board of Governors shall provide a suitable program for each Annual Meeting of the State Bar.” Well, a speech by an oceanographer does, of course, constitute a “program.” So would a performance by a magician. But is it “suitable”? That term is defined by the American Heritage Dictionary as “[a]ppropriate to a purpose or an occasion.”
Neither a speech by an oceanographer nor a prestidigitator pulling a dove out of a top hat, I would submit, is “appropriate.”
It certainly doesn’t reach anywhere near the level of inappropriateness as that of using mandatory dues of members for political purposes unrelated to the reasons for the State Bar’s existence...which was condemned by the United States Supreme Court in 1990 in Keller v. State Bar of California. However, it’s worth noting that the high court observes in that case that the State Bar of California has a “broad statutory mission”: to “promote ‘the improvement of the administration of justice.’ ”
The mission is spelled out in Business & Professions Code §6031 which authorizes the Board of Governors to “aid in all matters pertaining to the advancement of the science of jurisprudence or to the improvement of the administration of justice, including, but not by way of limitation, all matters that may advance the professional interests of the members of the State Bar and such matters as concern the relations of the bar with the public.”
That language sets forth the only authorized power of the State Bar pursuant to which programs at the annual conventions could be staged. It follows that to be “suitable,” programs must promote the mission delineated in §6031. A “State Bar Luncheon” featuring a talk about experiences under the sea plainly does not comply with that standard.
I don’t know who picked the speakers for this year’s convention...and it doesn’t really matter. What matters is that the line-up of speakers is, as it has been in recent years, weak. Could this possibly have something to do with the waning attendance?
The State Bar is so concerned about the dwindling numbers that the Board of Governors had considered a rule change to permit annual meetings outside the state—translation, in Las Vegas—but the proposal died in committee on July 10.
If the State Bar wants attendance, it has to create a reason to come. Yet, the speeches that have been scheduled for later this month are far from enticing.
Aside from the oceanographer, a former solicitor general will appear. Why not the present solicitor general? Or the present attorney general? Speaking services have been engaged of a former Democratic Senate leader. Why not the present Democratic Senate leader, Harry Reid (an attorney), or the present Republican Senate leader, Mitch McConnell Jr. (a former judge)? Or, better yet, have them face off in a joint appearance?
The State Bar is setting its sights too low.
How high can it realistically set its sights?
Fifty years ago, the State Bar had only about 20,000 members (18,817 on active status)—less than one-tenth of the 216,500 lawyers now on the rolls. Yet, convention speakers in Coronado in 1958 included U.S. Attorney General William P. Rogers (later to serve as U.S. secretary of state), Gov. Goodwin J. Knight (a former Los Angeles Superior Court judge), state Attorney General Edmund G. “Pat” Brown (to be elected later that year as governor), and Harvard Law School Dean Erwin N. Griswold (a future solicitor general).
In 1963, the State Bar honored Earl Warren in connection with the 10th anniversary of his appointment as U.S. chief justice. All of the federal high court’s associate justices were there for the five-day event except John Harlan, who was said to have had a prior commitment. All seven members of the California Supreme Court were present. Warren and California Chief Justice Phil Gibson both addressed a Wednesday dinner meeting. Others speaking during the course of the week included Gov. Pat Brown, U.S. Senate Republican whip Thomas Kuchel of California, and California Supreme Court Justice Matthew Tobriner.
The outgoing State Bar president at the time was William P. Gray, later a judge of the U.S. District Court for the Central District of California. The Sept. 26 issue of the Metropolitan News reports:
“Gray brought out that the California Bar included 25,502 lawyers on Aug. 1 of which 23,554 were active and 1,948 inactive.”
As to attendance, the article says that “nearly 2,000 lawyers and judges gathered here [in San Francisco] from every section of California for the Bar Convention and the Conference of California Judges.”
Many of the lawyers’ spouses came along. The Los Angeles Daily Journal’s Oct. 13 issue says: “Some 3000 lawyers, judges and their ladies registered for the sessions during the week.”
How does the attendance of lawyers in 1963 compare with that last year? In 1963, it was “nearly 2,000,” but the figure included judges. The Conference of California Judges (now called the California Judges Assn.) met each year in conjunction with the State Bar. Given that there weren’t all that many judges then, the number of lawyers was probably somewhere between 1,800-1,900. That was about 7 percent of the state’s lawyers.
And last year? A Sept. 29, 2007 State Bar news release says:
“Participation at well-attended 80 th annual meeting was 3,700, up from last year.”
However, that figure includes non-lawyer spouses and other tag-alongs who registered. A State Bar spokesperson says: “A very rough guess for last year would be that the number of non-lawyer registrants was about 200.” So, approximately 3,500 lawyers gathered. That’s around 1.6 percent of the bar.
That’s a rather pathetic turn-out.
The State Bar should get its act together and shoot for attendance of 5,000 members, minimum, at its next convention, slated for Sept. 10-13, 2009, in San Diego. That would be merely about 2 percent of the total membership. It should not ponder what horticulturalist or microbiologist to seek as a speaker. It should look to people in the law, and start at the top. There’s a fellow named John Roberts who just might draw attendance. And it could be that he would have some time available that month; his court will not be in session.
He has a colleague, Anthony Kennedy, a Californian…a former judge of the Ninth U.S. Circuit Court of Appeals. Kennedy might be wanting to visit his home state and be delighted to speak before California lawyers.
There are seven others on Roberts’ court. The State Bar does have enough funds to pay for their air fare to San Diego, and maybe even to provide hotel rooms.
There are also seven members of the California Supreme Court. The chief justice speaks every year, and loves to be in the limelight—but little is heard from the other six.
Pairing speakers could be effective, and lead to lively interchanges during questions from the audience. Examples:
●Whoever the U.S. attorney general is next year and California AG Jerry Brown.
●Brown, a Democrat and former governor, and former AG Dan Lungren, now a member of Congress and an unsuccessful GOP candidate for governor.
●A panel on judicial selection approaches with the current judicial appointments secretary, Sharon Majors-Lewis, and predecessors Tony Kline (now a Court of Appeal presiding justice), Marvin Baxter (a member of the California Supreme Court) and Burt Pines (on the Los Angeles Superior Court).
For a pool of talent, look at the Board of Governors. There’s Bonnie M. Dumanis, district attorney of San Diego County. Team her with Los Angeles District Attorney Steve Cooley and San Francisco DA Kamala D. Harris, pit them against State Public Defender Michael Hersek, Los Angeles Public Defender Michael Judge, and a leading private defense lawyer, such as Harlan Braun or Charles Lindner, and there would be meaningful debate.
Speaking of debate, a master debater is Howard Miller, a member of the board from this district. He appeared weekly as a debater on national television from 1969-74 on PBS’s “The Advocates. There was a “trial” of an issue (such as capital punishment or forced busing), and partisans were called as “witnesses” to be examined on their views and cross-examined. Miller, taking the liberal position, and his counterpart expressing the conservative notions, did the questioning and the arguing. Miller’s adversary from a time late in 1970 was William Rusher, publisher of National Review, of which the better-known William Buckley was editor. As contrived as the format might sound, it was a worthwhile series. The value of any idea is best tested in the context of spirited argumentation and questioning, and that’s what took place. A resurrection of “The Advocates” with Miller up against a conservative lawyer, such as former District Attorney Robert Philibosian, and well recognized figures in the bar as a witnesses, would produce a spirited program that would get the audience’s mental juices flowing.
Nowhere in the rules is there a requirement that State Bar programs be dull. There is, however, a requirement that they be germane.
A rule the Board of Governors might adopt is that if a program—other than a ceremony (swearing-in, awards presentation)—would not qualify for MCLE credit, it shouldn’t be staged.
“RESISTANCE IS FUTILE”—A member of the Los Angeles Superior Court who doesn’t want to be identified sent a letter which had some kind comments about my column of Aug. 26 in which I alluded to Chief Justice Ron George’s efforts to assume the role of supreme commander of the courts, stripping trial judges of administrative prerogatives. The column contained this, which I thought was original:
“On TV’s ‘Star Trek, the Next Generation,’ species…after having been admonished that ‘resistance is futile’…submitted to assimilation, without a fight, into The Borg, becoming drones. Will Los Angeles Superior Court judges similarly acquiesce?”
Judge X advises:
“You aren’t the only one who found the ‘Borg’ analogy an apt one—I have heard many judges use the same simile (or is it a metaphor?) to describe our predicament.”
For those who didn’t watch the series, once a life form was “assimilated,” he or she would become part of a “collective,” losing individual identity and independent thought—which is pretty much what George has in mind for trial judges.
Judge X also remarks:
“Many of us have fought the relentless incursions from the north, sometimes with success, sometimes not, but none more forcefully or effectively than [Presiding] Judge [J. Stephen] Czuleger, who is just a terrific person and a great leader. I am very sorry his term as our presiding judge is almost at an end.
Copyright 2008, Metropolitan News Company