Obrien v. Jones

• Decision Date: 01 June 2000
• Docket Number: No. S085212.,S085212.
• Citation: 96 Cal.Rptr.2d 205,999 P.2d 95,23 Cal.4th 40
• Court: California Supreme Court
• Parties: James W. OBRIEN et al., Petitioners, v. Bill JONES, as Secretary of State, etc., et al., Respondents.

96 Cal.Rptr.2d 205

23 Cal.4th 40

999 P.2d 95

James W. OBRIEN et al., Petitioners, v. Bill JONES, as Secretary of State, etc., et al., Respondents.

No. S085212.

Supreme Court of California.

June 1, 2000.

Kerr & Wagstaffe, James M. Wagstaffe, San Francisco, and Timothy J. Fox, Burlingame, for Petitioners.

Hansen, Boyd, Culhane & Watson, Kevin R. Culhane and Betsy S. Kimball, Sacramento, as Amici Curiae on behalf of Petitioners.

Robert C. Fellmeth, for Center for Public Interest Law as Amicus Curiae on behalf of Petitioners.

Jerome Fishkin; Law Offices of Ephraim Margolin, Ephraim Margolin, San Francisco, Gerald Uelman and Vicki H. Young as Amici Curiae on behalf of Petitioners.

Jerome Berg, in pro. per., as Amicus Curiae on behalf of Petitioners.

Bill Lockyer, Attorney General, Manuel M. Medeiros, Assistant Attorney General, Andrea Lynn Hoch and Daniel G. Stone, Deputy Attorneys General, for Respondents Governor Gray Davis, Senate President Pro Tempore John Burton and Speaker of the Assembly Antonio R. Villaraigosa.

William P. Wood, Oliver S. Cox and Pamela S. Giarrizzo, Sacramento, for Respondent Secretary of State Bill Jones.

GEORGE, C.J.

From the creation of the State Bar Court in 1988 until the present, Business and Professions Code sections 6079.1, subdivision (a), and 6086.65, subdivision (a), have provided that this court appoints all judges of the State Bar Court. Revised versions of these statutes, operative November 1, 2000, provide that of the five judges of the State Bar Court Hearing Department (hereafter Hearing Department), two judges shall be appointed by this court, one by the Governor, one by the Senate Committee on Rules, and one by the Speaker of the Assembly. The revised statutes further provide that all three judges of the State Bar Court Review Department (hereafter Review Department) shall continue to be appointed by this court, but that the current lay judge of the Review Department shall be replaced by a judge who is a member of the State Bar.

Petitioners James W. Obrien, H. Kenneth Norian, and Nancy R. Lonsdale previously were appointed by this court as judges of the State Bar Court, and currently are serving in that capacity. On January 19, 2000, they filed this original proceeding in this court, seeking a writ of mandate, prohibition, or certiorari, or other appropriate relief, to preclude respondents Governor, Senate President Pro Tempore (who also serves as chair of the Senate Committee on Rules), and Speaker of the Assembly from appointing any judges of the State Bar Court, and to prohibit respondent Secretary of State from accepting for filing the oaths of office administered in connection with any such appointments. Petitioners further seek a declaration that the statutory revisions described above violate the separation of powers provision of the Constitution. (Cal. Const., art. III, § 3.)

Because uncertainty regarding the effect of the revised statutes might cast doubt upon the legitimacy of disciplinary recommendations rendered by judges appointed pursuant to those provisions, we issued an order to show cause on March 1, 2000, and established an expedited briefing and oral argument schedule to permit the court to resolve the matter prior to the appointment of individuals who will occupy the positions currently held by judges whose terms expire on November 1, 2000. The petition is opposed collectively by the Senate President Pro Tempore and the Speaker of the Assembly (hereafter respondents). The Governor and the Secretary of State take no position on the merits.

We conclude that although this court's inherent authority over attorney admission and discipline includes the power of this court to appoint the judges of the State Bar Court and to specify their qualifications, other appointment mechanisms specified by the Legislature are permissible so long as they are subject to sufficient judicially controlled protective measures to ensure that such appointments do not impair the court's primary and ultimate authority over the attorney admission and discipline process. As we shall explain, because of our continuing, primary authority over the operations of the State Bar Court — including the appointment of that court's judges — and the numerous structural and procedural safeguards, described herein, that exist both within the attorney discipline system and within the State Bar Court appointment process established by this court, we conclude that the legislation here at issue, providing that some of the hearing judges shall be appointed by the executive and legislative branches and that the lay judge of the Review Department shall be replaced with a judge who is a member of the State Bar, does not defeat or materially impair our authority over the practice of law, and thus does not violate the separation of powers provision.

I

Until 1988, the State Bar's attorney disciplinary system was operated primarily with the assistance of volunteers from local bar associations. (In re Attorney Discipline System (1998) 19 Cal.4th 582, 611, 79 Cal.Rptr.2d 836, 967 P.2d 49 (Attorney Discipline).) These volunteers and other individuals appointed by the bar's board of governors acted as referees and made recommendations to the board, which in turn made recommendations to this court regarding the discipline of attorneys. (Bus. & Prof.Code, § 6078;¹ In re Rose (2000) 22 Cal.4th 430, 438, 93 Cal.Rptr.2d 298, 993 P.2d 956 (Rose).)

In 1988, the Legislature directed the board to establish a State Bar Court that would assume the board's disciplinary functions. (§ 6086.5.) The State Bar Court includes a Hearing Department and a Review Department. (§§ 6079.1, 6086.65.) Pursuant to rules promulgated by the bar, hearing judges conduct evidentiary hearings on the merits in disciplinary matters and render written decisions recommending whether attorneys should be disciplined. (Rose, supra, 22 Cal.4th at p. 439, 93 Cal.Rptr.2d 298, 993 P.2d 956.) A decision of the Hearing Department is reviewable by the Review Department at the request of the disciplined attorney or the State Bar. (Ibid.) The Review Department independently reviews the record and may adopt findings, conclusions, and a decision or recommendation at variance with those of the hearing judge. (Cal. Rules of Court, rule 951.5, adopted Feb. 28, 2000;² see § 6086.65, subd. (d) [specifying an alternative standard of review "[u]nless otherwise provided by a rule of practice or procedure approved by the Supreme Court"].)

A recommendation of suspension or disbarment, and the accompanying record of the proceedings in the State Bar Court, are transmitted to this court after the State Bar Court's decision becomes final. (§ 6081; Rose, supra, 22 Cal.4th at p. 439, 93 Cal.Rptr.2d 298, 993 P.2d 956.) The affected attorney or the State Bar Chief Trial Counsel may file a petition requesting that this court review, reverse, or modify the recommended discipline. (§§ 6082, 6083; rules 952(a), 952.5.) We independently examine the findings and conclusions of the State Bar Court in light of the entire record and determine whether to impose the discipline recommended by the State Bar Court. (Rose, supra, 22 Cal.4th at pp. 439, 456-457, 93 Cal.Rptr.2d 298, 993 P.2d 956.)

Pursuant to statutes and rules of court, this court has appointed the judges of the State Bar Court and has prescribed the evaluation and nomination process. Thus, under presently applicable law, we appoint the Presiding Judge of the State Bar Court and five hearing judges for terms of six years, subject to reappointment by this court for additional six-year terms. (§ 6079.1, subd. (a).)³ Although this statute requires the appointment of no fewer than seven hearing judges, we have ordered that only five hearing judges be appointed, as recommended by the presiding judge, in light of the State Bar Court's caseload. We also appoint the Review Department, consisting of the presiding judge of the State Bar Court, one lay judge, and one attorney judge. (§ 6086.65, subd. (a).)⁴

I Section 6079.1, subdivision (c), provides that the State Bar Board of Governors shall screen and rate all applicants for appointment or reappointment, unless otherwise directed by the Supreme Court. We have chosen not to utilize the board for this purpose and instead to appoint a seven-member Applicant Evaluation and Nomination Committee to solicit, receive, screen, and evaluate all applications for appointment or reappointment to the State Bar Court after considering factors specified by statute and by rule 961(b)(2). The committee then rates all applicants and nominates for each vacancy at least three candidates who, in the committee's view, possess the qualifications necessary to perform the duties of a State Bar Court hearing judge or review judge. (Rule 961(a), (b).)

Once appointed, State Bar Court judges are subject to discipline by this court on the same grounds as a judge of a court of record in this state. (§§ 6079.1, subd. (a), 6086.65, subd. (a); rule 961(d).) We have designated the Executive Director Chief Counsel of the Commission on Judicial Performance to review and investigate complaints concerning the conduct of State Bar Court judges. (Rule 961(d).) If there is reasonable cause to institute formal proceedings, this court appoints active or retired judges of superior courts or Courts of Appeal as the court's special masters to hear the matter and report to this court their findings, conclusions, and recommendations regarding discipline. (Ibid.)

In 1995, this court appointed or reappointed a number of State Bar Court judges, including petitioners. Some judges were appointed for terms of less than six years in order to provide for staggered terms. In addition, in 1998 and 1999, we extended the terms of some judges who had been appointed previously. (See rule 961(c) [this court may extend the term of incumbent judges and provide for staggered terms].) Petitioner Obrien is the Presiding Judge of...