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It's Civics 101: Separation of Powers

Posted By Administration, Sunday, July 10, 2011
Updated: Tuesday, May 13, 2014

By Shannon Stein, President 

 A quick quiz:
How many branches of government are there?

Are all branches equal?
What does the separation of powers doctrine mean?
Who is our Governor?
Who is the current California Chief Justice of the Supreme Court?
Who is the current Speaker of the California assembly?

I am not going to tell you the answers.  A simple Google search will reveal the answers. You should have gotten all of these correct.  My assumption is that most of you got all of these correct except for the last question.  Most of us learned the answers to the first three questions when we were in elementary school.  And for those not paying attention then, we all learned the answers to these questions as a One L.

I asked the above quiz because once again the California legislature is stepping on our “turf” as lawyers.  My April 2011 President’s article (co-written by Chris Burdick, Executive Director and General Counsel of the SCCBA) explained that the Legislature and Governor, as part of a deal with the State Bar in September 2011 to approve a 2010-2011 dues bill, mandated that the State Bar Board of Governors create a Governance in the Public Interest Task Force, charged with improving the public protection function of the State Bar.  One of the charges of the Task Force was how the Board of Governors (BOG) is made up.  Currently, the BOG is comprised of 23 governors:  15 lawyers elected by active practicing attorneys from districts across the state and an additional 16th lawyer member elected by the Young Lawyers Division; and 6 public members appointed by the Governor, the Assembly Speaker and the Senate Rules Committee.  In the article we wrote of the two options that the Task Force was planning on submitting to the Legislature and our opinion of these proposals. 

The Task Force submitted two proposals to the Legislature. The Task Force’s majority report would have continued the existing 23-member board, with six public members, but called for both appointed and elected attorney members. Twelve lawyers would be elected from five districts, three would be appointed by the Supreme Court after the election, and the California Young Lawyers Division would have a seat. The minority report calls for a 15-member all-appointed board of nine lawyers and six public members. The Supreme Court would appoint the lawyer members.
The Legislature, instead of following the recommendations of the Task Force created their own amendments to the 2012 State Bar fee bill (SB 163) that will revamp how the bar is governed. (Yes, one must ask why the legislature mandated that there be this Task Force if they were going to submit their own proposal any way.)   The amendments will reduce the board of governors from 23 to 19 members.  

The 19 members would include six lawyers elected from redrawn bar districts aligned with Court of Appeal districts, five lawyers appointed by the Supreme Court and two more attorneys appointed by the Speaker of the Assembly and the Senate Rules Committee. There would be six public members ? four by the governor and one each by the Assembly speaker and the Senate Rules Committee.  It would be a three year term. The Board of Governors would also get a new name ? the Board of Trustees.

In a nut shell, if one wanted to be on the “Board of Trustees” , one possibly would need to do all three things: run for office, apply with the Supreme Court and the Legislature to greaten their chances of being on the Board.  (All while continuing their day to day work, family, and activities.)
The SCCBA, as well as other bar associations, feel that that the current composition of the Board of Governors is the better than any of the proposals and these amendments.  The reason is that we feel that lawyers are best-equipped to address the many legal policy issues the Bar Board faces.  We also feel that we should be able to elect our own representatives.  The current proposal could potentially appoint people that are not qualified to make decisions regarding how lawyers should be governed.  Most of the public members currently on the BOG feel that lawyers should not be self-regulated.  

Getting back to that separation of powers question---remember lawyers are part of the judicial branch, part of the third, independent branch of government.  The Legislature, by creating their own amendments and not following the recommendations of the State Bar Task Force, is another example of their continued encroachment on the Supreme Court’s governance of lawyers.

The SCCBA Board of Trustees will continue to monitor this issue.  I urge each of you to contact your legislative representative as well as the Chief Justice of the California Supreme Court and express your opinion about this issue.

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