GOP Volunteers Disgrace Party by Opposition to Kennard, Suit Against Brown

Friday, October 20, 2006

and portions of a related editorial on Monday, October 23, 2006

Page 6

EDITORIAL

GOP Volunteers Disgrace Party by Opposition to Kennard, Suit Against Brown

High office-holders in the State of California with Republican Party membership have well served the citizenry over the past several decades. Governors have included the likes of Goodwin J. Knight, Ronald Reagan, and George Deukmejian, and among the attorneys general have been Evelle J. Younger and Dan Lungren.

The Republicans who have been in power have been able and sensible.

It is a shame that volunteers in clubs and central committees so often have been unthinking ideologues who have tarnished the image of their party through foolish stances.

The California Republican Assembly last week went on record in opposition to California Supreme Court Justice Joyce Kennard in her bid for voter retention in the Nov. 7 general election. Kennard is second to no jurist in this state in adeptness. She has a knack of crafting opinions that are crisp, readable, and persuasive. Her analytical abilities are of the highest order. Indeed, Kennard’s fitness for membership on the state’s highest court could not possibly be questioned by anyone who reads and understands appellate court opinions.

Yet, the CRA, through unanimous action of its board, opposes Kennard’s continuation in office. Why? Because she joined in an opinion striking down a statute requiring girls under 18 to obtain parental consent to, or judicial authorization of, abortions.

In 1997, Kennard signed an opinion by Chief Justice Ronald George invalidating the statute on the ground that it ran afoul of the state constitutional privacy right. Justice Stanley Mosk (since deceased) authored a dissent. The opinions followed a grant of rehearing. A 1996 opinion by Mosk, then writing for the majority, upheld the law. Kennard and two other justices wrote dissents.

Here’s how Kennard’s 1996 dissent began:

“California’s parental consent law, which prohibits abortions for women under the age of 18 years without either the consent of one parent or judicial authorization, may at first glance appear so eminently reasonable that its constitutional validity could scarcely be in doubt. But evidence received at the trial of this case, much of it based on the experience of other states with similar laws, shows that the benevolent appearance of parental involvement laws is deceiving; the laws have serious adverse effects and yield few benefits for children or society.”

Kennard looked at the evidence and at the prevailing legal standards. She drew fine distinctions. Her approach was meticulous, evidencing fidelity to law, not a desired result.

While we would, in the end, agree with Mosk’s 1997 dissent, it cannot be said that Kennard performed other than as a jurist dutifully applying the law to facts, and doing so with skill and objectivity.

In an interview with the MetNews on Friday, the president of the CRA, Mike Spence, declared that Kennard “is an enemy of parental rights” and that “Proposition 85 is on the ballot because of justices like Joyce Kennard.” Spence, who is not an attorney, reasoned:

“If you are voting yes on 85, you should vote no on Joyce Kennard.”

The notion that a jurist should be denied retention based on a single vote in a case—and one from a decade ago, at that— is ludicrous. It reflects utter ignorance as to the proper role of judges.

Favoring Proposition 85 is by no means inconsistent with voting yes on the retention of Kennard. One could agree with Kennard that the statute was infirm because of its conflict with a state constitutional provision, but want to render parental consent constitutional through an amendment to the Constitution. Or, one could disagree with Kennard’s vote in the one particular case, but also adhere to the notion of a need for judicial independence.

There is no realistic chance that Kennard will be denied retention, and we would not, ordinarily, bother to endorse her. Our purpose is to point to the silliness of volunteer political groups taking knee-jerk stances on judicial candidates.

A suit was filed yesterday by the chairs of the Republican county central committees in Contra Costa and Yolo, and by three other persons, to declare Jerry Brown ineligible for the office of attorney general and to enjoin him from taking the oath if he were to be elected.

The action is brought based on Government Code §12503 which provides:

“No person shall be eligible to the office of Attorney General 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.”

Brown was admitted to practice in the State of California on June 14, 1965. He has been admitted to practice ever since.

It is true that he has been on inactive status for part of the past five years. But that does not mean he was stricken from the rolls of the attorneys. He was not eligible to practice law during that lull in his active membership—indeed, it would have been a misdemeanor to do so—but he was still admitted to practice.

Bus. & Prof. Code §6002 provides: “The members of the State Bar are all persons admitted and licensed to practice law in this State except justices and judges of courts of record during their continuance in office.”

Sec. 6003 of that code says: “Members of the State Bar are divided into two classes: [¶] (a) Active members. [¶] (b) Inactive members.”

Thus, the term “admitted to practice” includes judges and justices, who are not “members” of the State Bar, and includes those who are members, which includes those on both active and inactive status.

No other construction is possible. The statement by Brown’s Republican rival, state Sen. Charles Poochigian, that the complaint filed yesterday raises a “serious question” is troubling; one who seeks the post of top lawyer for the state should be more adept at reading statutes.

In light of these code provisions, Lynn Olson, a successful candidate in June for the Los Angeles Superior Court, met the constitutional qualification for office (that of being a “member” of the State Bar for 10 years), even though she was an “inactive” member for most of that time. In light of these provisions, Jerry Brown is statutorily qualified for the post of attorney general because he has been “admitted to practice” for the requisite five year period.

This is unlike the situation relating to Los Angeles City Attorney Rocky Delgadillo who was, in his last term, legally unqualified for office—though no one challenged his status through the only legally permissible means: an action in quo warranto. The City Charter provides:

“The City Attorney must be qualified to practice in all the courts of the state, and must have been so qualified for at least five years immediately preceding his or her election.”

Delgadillo had been on inactive status during much of the five-year period preceding his election. He was a “member” of the State Bar and thus eligible for a judgeship, and was “admitted to practice” and could have run for attorney general. But, by virtue of being on inactive status, he was not qualified to practice law, doing so being conditioned on having active membership status.

We by no means endorse Jerry Brown for attorney general. He is the same person who was aptly denominated “Governor Moonbeam,” who sabotaged the judiciary with some of his appointments, most notably that of Rose Bird as chief justice. Brown is bound to win, which we regard as a shame.

Republican volunteer organizations, it might be noted, have no monopoly on irresponsibility. The Los Angeles County Democratic Central Committee, it might be noted, endorsed Lynn Olson in the primary. It did so notwithstanding her “not qualified” rating by the Los Angeles County Bar Assn., and the “exceptionally well qualified” label that LACBA put on the challenged incumbent, Dzintra Janavs.

It so acted not based on any evidence that Olson was qualified—indeed, the long absence by the “Bagel Lady” from the practice of law and the skimpiness of her earlier stint as a practitioner established that she was, by any objective assessment, not fit for the office she sought.

But Olson is a Democrat. (And brought members of the committee croissant sandwiches from her restaurant.) Janavs is a Republican. To the knee-jerk partisans, that was enough for them to embrace the candidacy of a patently unfit aspirant for a judicial post.

All of this points to the need to revamp judicial elections in California, removing them from partisan political influences by restricting voting to those “admitted to practice”—that is, judges and lawyers.

The editorial of Oct. 23, 2006, contained this additional analysis:

At issue is the effect of Government Code §12503, which provides:

That language is the same as that contained in Art. VI §23 of the state Constitution as of 1937, except that the offices specified in the constitutional provision were those “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.”

The Supreme Court said in the 1937 decision in Johnson v. State Bar, 10 Cal.2d 212, at 216:

“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.”

Jerry Brown, while on inactive status, was not “actually entitled to practice in the state courts,” the memorandum of points and authorities notes, concluding that under the reasoning in Johnson, he does not meet the qualification for office.

The memorandum was prepared by Charles H. Bell Jr. of the powerhouse Sacramento law firm of Bell, McAndrews & Hiltachk. It’s superbly drafted...but leaves something out. The sentence relied upon appeared in dictum.

The petitioner in the case was one George C. Johnson, who had wanted to run for the Los Angeles Superior Court. On June 20, 1936, he filed a sworn declaration in the office of the Los Angeles County registrar of voters declaring that his “occupation for the past three years” was “Lawyer, practicing, and admitted to practice since 1927 in California,” and listing his “present occupation” as “Lawyer.” However, Johnson was not practicing law. He had been under a three-year suspension from practice which began in January.

If the issue before the high court had been whether Johnson was eligible for office notwithstanding his suspension, the sentence relied upon by Bell would have been part of the holding. But that wasn’t the issue. It was a disciplinary case. As stated in the Supreme Court opinion:

“The gravamen of the charge against petitioner is that he made a false statement in a sworn declaration of candidacy for the office of judge of the Superior Court of Los Angeles County, to the effect that his occupation for the past three years had been that of practicing lawyer whereas in fact he was then and had been under suspension for almost five months prior thereto.”

The issue was whether Johnson should be disbarred, as recommended by the State Bar, for lying under oath...not for attempting to run for an office while lacking the legal qualification.
....

As we pointed out Friday, Bus. & Prof. Code §6002 provides: “The members of the State Bar are all persons admitted and licensed to practice law in this State except justices and judges of courts of record during their continuance in office.” And §6003 of that code says: “Members of the State Bar are divided into two classes: [¶] (a) Active members. [¶] (b) Inactive members.”

Those two provisions were enacted two years after the decision in Johnson. They made crystal clear that those who are “admitted to practice” are those who are either judges or are members of the State Bar, on either active or inactive status.

Such clarity as to the meaning of the words “admitted to practice” was not provided by the 1927 State Bar Act, as it existed in 1937. Had the present statutes been in effect in 1937, it is highly doubtful that the one-liner seized upon by Bell would have appeared in Johnson.

While we would certainly question whether Brown is “qualified” for the post of attorney general in the sense of being “fit,” that is, having what it takes, we do not doubt that he is legally qualified.

The action filed in Sacramento Superior Court is, in our view, a frivolous one. We find it regrettable that state Sen. Charles Poochigian—whose fitness for the post of attorney general cannot be doubted—has given tacit approval to the Sacramento action, filed by county GOP chairs and other party volunteers.

While we believe that Brown will, and should, prevail in Sacramento Superior Court, his victory at the polls, though highly probable, would surely not prove to be in the public’s interest.