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Posts Tagged ‘Arizona Supreme Court’

A “membership requirements” survey emailed to the state’s lawyers last week by the Chief Justice of the Arizona Supreme Court features an unprecedented argument. Acknowledging that “some lawyers argue there should be an exception” to mandatory membership in the State Bar of Arizona, the introduction to the survey asserts “One argument is that some lawyers hold a ‘firm, fixed and sincere ethical, religious or moral objection’ to being required to be a member of the State Bar and should be able to opt out as a non-member attorney (NMA).”¹

As proposed, lawyers opting out of joining the Bar and funding its full freight of regulatory and non-regulatory trade association services would be required to personally swear or affirm in writing to “a firm, fixed, and sincere ethical, religious or moral objection” to Bar membership.

It’s not clear who would determine the adequacy of the affidavits or how often affiants would have to file their objections. California teachers, for example, must annually file an opt-out request to get a 30% refund of their union dues.

More significantly, objectors would be forced to tell their clients of their new status as NMAs. This assuredly implicates unconstitutional compelled speech. It also serves no legitimate government function. And without pinpointing any legitimate purpose, objectors would be issued new Bar cards with brand new bar numbers to identify them as attorneys licensed to practice — but NMAs. Talk about chilling the First Amendment right not to associate.

A lawyer second class.

As a newly created separate and unequal class of lawyers, NMAs would be excluded from voting in Bar elections or from running for its governing board. However, as others have pointed out, disenfranchising NMAs is only appropriate if the State Bar has no formal role in attorney discipline and governance. But that’s not the case here. The Court-empowered Bar will continue holding regulatory and disciplinary sway over both members and non members.

Categorized as ineligible for Bar discretionary services, including specialty section membership, NMAs would also be charged higher registration fees for Bar continuing legal education programs.

In exchange for giving up the foregoing, it’s estimated NMAs would save a modest $70 to $100 off the current $505 dues. Already one of the highest cost to practice bars in the U.S., Arizona’s dues go up to $520 a year from now.

It’s fair to wonder how this low savings estimate was calculated and whether it was derived from self-interested Bar number-crunchers. By contrast, when in 2013 the Nebraska Supreme Court ordered the Nebraska Bar to charge members only for lawyer regulation — licensing fees went down by two-thirds.

The lawyer as conscientious objector.

Forget for the moment that “an opt-out system places the burden on the wrong party and leads to the unjust and needless encroachment upon First Amendment rights.” Or that giving lawyers only one choice: making a Hacksaw Ridge style conscientious objection to get out of membership is not only absurd but unnecessary. Trade association services should be voluntary to begin with. And when did we sign up for the infantry?

As I have written here before, the Bar always conflates lawyer professionalism, expertise and qualifications with mandatory membership — because it serves their self-interest. Lawyers are admitted and authorized to practice by the state supreme court not because of Bar membership.

Yes or no.

After describing how the proposal would be implemented, the survey asks a yes or no question, “Given this information, do you believe the Arizona Supreme Court should provide a non-member attorney option to attorneys licensed to practice in Arizona?”

And then asks, “If the AZ Supreme Court were to provide a non-member attorney option as described above, would you:

___ Remain a full member of the State Bar

___ Choose to opt out”

Below are the parameters that frame these survey questions. But inasmuch as they amount to poison pills, it’s clear the intent is to not to delineate but to dissuade respondents from opting out.

The State Bar, which gave input on the survey, stands to profit should the results inure to its benefit. However, asking the Bar for input on whether its captive members should opt out is like asking the cat whether to release the mouse.

So notwithstanding the survey’s one-sided argument and suspect constitutionality, the Bar will just the same crow a result that cowed its members from opting out. How many lawyers will find amenable a requirement to out themselves to clients like modern-day Hester Prynnes?

But if there’s ever been a better case for a voluntary bar than the one presented by this unworkable scheme — I can’t think of one.

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Lawyers who choose the NMA option:

“Would be required to file an affidavit with the State Bar indicating they favor a firm, fixed and sincere ethical, religious or moral objection to being required to be a member of the State Bar.

▪ “Would be required to notify your clients that you are no longer a member of the State Bar, but are licensed to practice in Arizona.

▪”Would have to personally file the affidavit. The head of a firm or office could not opt out for all attorneys at the firm or office.

▪ “Would receive a separate law license number and their current bar number would be deactivated.

▪ “Would not be able to join a State Bar section.

▪ “Would be charged a higher non-member registration fee if the NMA wants to attend a State Bar sponsored CLE program.

▪ “Could not vote in State Bar elections, nor could they run for the Board of Governors.

▪ “Would not be eligible for State Bar discretionary services, e.g., the Arizona Attorney, e-Legal newsletters, Law Office Management assistance, use of FastCase, State Bar legal publications.

▪ “Would pay a mandatory licensing fee but would not pay for State Bar non-regulatory services. The Court estimates it would be a 14% to 20% reduction in the fee paid for only being licensed to practice. For a regular active Bar membership, the reduction would be $70 to $100.”

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¹Never having heard of any lawyer making such a peculiar argument, what first occurred to me on seeing the proposed NMA acronym was the Compton rap group N.W.A.

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High temperatures, sweaty cheeks, thunderstorms, flash floods and fungus-dispersing dust storms are our annual devil’s brew during monsoon season. This time of year is the flip side of what locals otherwise consider heaven.

Circumstances permitting, more fortunate desert dwellers of the non-snowbird variety temporarily pack up their monkey butt powder and flee for whatever short-lived respite is found in cooler climes.

https://upload.wikimedia.org/wikipedia/commons/c/c2/Demonstration_of_Sweat.jpgBut notwithstanding sticky summer’s infernal doldrums, elsewhere there’s news of a different sort involving your friendly state bar associations. Here’s a quick rundown from The Irreverent notebook:

Washington State Bar President Unexpectedly Resigns

https://upload.wikimedia.org/wikipedia/commons/thumb/5/54/Flag_of_Washington.svg/320px-Flag_of_Washington.svg.pngWithout much notice or fanfare but citing “personal matters that require her attention,” Washington State Bar President Robin Haynes abruptly resigned last month following news reports she was under investigation stemming from accusations by two former law firm employers claiming Haynes had committed financial improprieties, specifically allegations she embezzled some $9,300. See “WA State Bar Association president accused of embezzling nearly $10k” and “President Of Washington Bar Association Resigns — Right Before The Criminal Charges.”

In a statement reported by Spokane’s Spokesman-Review newspaper, Haynes’ lawyer explained, “While Ms. Haynes has done nothing wrong and looks forward to clearing her name in a fair tribunal, she was also aware that even the rumor of an investigation would cast a shadow over the important work that the State Bar Association does.” See “Former bar president accused of using law firms’ credit cards for gym, political donations.”

Haynes who at 39 was also publicized as the youngest Washington Bar president ever — had a term that was not without some controversy. This is because she used her ‘bully pulpit’ to editorialize often in the state bar magazine against sexism and bias. In some ways, her admonitions took on the cast of what’s become the méthode du jour embodied in the polarizing proposed ABA Model Rule 8.4(g) amendment that would impose an unconstitutional speech code on lawyers. See “Allies in the Law” at February 2017 NW Lawyer where author and former WSBA Governor Phil Brady writes in her defense, “We’ve seen a lot of negative reaction to WSBA President Robin Haynes speaking up about the sexism present in our profession.”

Haynes, like the rest of bar leadership was also an ardent defender of the bar’s recently passed 141% dues increase. See “The Dialogue Continues.” Inasmuch as the bar’s governing board and court had nullified a member referendum calling for a dues increase vote, Washington State Senator and WSBA Member Mike Padden subsequently introduced Senate Bill 5721 to require the WSBA “to obtain an affirmative vote prior to increasing bar dues for membership.” Unfortunately, Padden’s bill did not get out of committee and to the floor for a vote.

California State Bar non-regulatory function split moving forward

https://upload.wikimedia.org/wikipedia/commons/thumb/9/98/California_State_Assembly_room_p1080879.jpg/320px-California_State_Assembly_room_p1080879.jpgLast week, the California Assembly Judiciary Committee unanimously approved SB 36, a bill that has had multiple amendments since it’s 2016 introduction. According to the July 17, 2017 assembly bill analysis, it “prioritizes the State Bar’s regulatory functions by separating the trade association functions into a new nonprofit and helping improve governance of the State Bar.”

To do this, SB 36 splits off the Cal Bar’s 16 specialty practice groups into a private nonprofit. The bill covers a lot of terrain impacting both bar governance and structure, including eliminating elections for officers of the Board of Trustees and changing the current governing board super majority into a simple majority of practicing lawyers. It also gives the Bar explicit authority to re-fingerprint active lawyers so that it can receive arrest alerts about them. Assuming swift legislative passage next month and gubernatorial signing, it becomes effective January 1, 2018.

Meanwhile in Arizona, a rule amendment petition asking the Arizona Supreme Court to similarly prioritize public protection by bifurcating the State Bar of Arizona’s regulatory and non-regulatory functions is still awaiting court action. In June, a reply was filed by the petitioner responding to the State Bar of Arizona’s wholly predictable comment against the petition. It’s worth reading here.

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Credits: monkey via morguefile.com; Washington flag, Wikimedia Commons, public domain; sweat demonstration by Dogbertio 14 at Wikimedia Commons Creative Commons Attribution; California State Assembly via Wikipedia by David Monniaux, Creative Commons Attribution-Share Alike license.

 

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https://cdn.morguefile.com/imageData/public/files/a/almogaver/preview/fldr_2008_11_07/file000136151699.jpgYesterday, Arizona took one more step toward reforming the way lawyers are regulated in the state. By a vote of 31-29, the Arizona House passed HB2295. This bill splits the State Bar of Arizona into two subsets. One preserves the mandatory membership character in order to function as an independent regulatory quasi-agency that makes paramount the protection of the public from unethical lawyers. The other subset becomes a voluntary organization that engages solely in the kinds of non-regulatory activities more traditionally associated with professional trade associations. It’s worth watching the HB2295 floor debate here starting at the 3:34 minute mark.

A conflicted identity.

Politicians 81Like mandatory bars elsewhere, the Arizona Bar suffers from what former Wisconsin State Bar President Steven Levine once described as “a schizophrenic identity.”

In a just published post at The Legal Watchdog, Wisconsin lawyer, blogger, author and scholar Michael Cicchini mentions the article, State Bar’s limits on financial transparency create budgetary blind spots (subscription required) where author James Briggs writes that “The State Bar straddles a line between being a state agency, under the jurisdiction of the Supreme Court, and a private corporation, which is not compelled to share financial information even with the people elected to govern it.” The author then quotes Levine on the Wisconsin Bar.

FunHouse 119But Levine could just as easily be referring to Arizona’s Bar while talking about Wisconsin, “When it comes to the advantages of being a state entity . . . they claim to be a state agency.  But when they want to act in private or in secret and avoid all public requirements state agencies are required to follow, they say they’re just a private organization.”1

Case in point when I filed a public records request last July with the State Bar of Arizona asking for lobbying expenditure disclosures concerning its opposition to bar reform legislation, the Bar’s response included the following lawyer doublespeak: “However, without waiving our right to assert any future objections applicable to a nonprofit organization either by rule or statute, this organization believes in transparency and will provide answers when possible.”

arizona_bar_frank2

Can’t serve two masters or walk around with two heads.

Two hats for two heads.2

By deunifying the regulator/trade association functions, HB2295 solves the longtime problem the State Bar of Arizona has been burdened with, which is trying to serve two masters by wearing two hats for two heads. The result has been an irreconcilable conflict of interest. Why? Because the interests of the public and the interests of lawyers are not the same. More often than not, they are in conflict.

Consequently, the State Bar should not simultaneously serve the interests of the public and the interests of the legal profession. If it truly means to protect the public, then the interests of the public have to be foremost. Because HB2295 separates the State Bar’s regulatory and disciplinary functions from the State Bar’s trade association services and activities, it improves the protection of the public from lawyers who violate the canons of professional ethics.

Moreover, by dividing the regulatory and disciplinary functions from its lawyer trade association activities and transferring all regulation to the Arizona Supreme Court, HB2295 helps to bring lawyer regulation more fully compliant with the 2015 U.S. Supreme Court decision in North Carolina State Board of Dental Examiners v. FTC.

In Dental Examiners, the nation’s high court ruled that state regulatory bodies controlled by “active market participants” – such as practicing lawyers -­ are not immune from federal antitrust laws. The solution then, as provided under paragraph B of HB2295 is “active supervision” by the state Supreme Court or by an independent body under the Court — not controlled by practicing lawyers. Despite the recent work of a Court State Bar task force, the State Bar of Arizona continues to operate under a lawyer-dominant governing board elected by lawyers.

HB2295 now moves to the Arizona Senate where the State Bar of Arizona hopes its lobbyists and well-paid executives can sustain a firewall sufficient to stop the spread of reform.

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1 Some 14 years ago, in a First Amendment suit against the State Bar of Arizona brought by former bar member Edmund Kahn, the U.S. District Court for Arizona in an unpublished opinion discussed whether a state bar was entitled to Eleventh Amendment immunity. The Arizona Bar, which usually asserts it’s a private association not a state agency, tried in this instance to hide behind the Eleventh Amendment by claiming a “level of integration between the State Bar and the Arizona Supreme Court.” The Court distinguished the cases the State Bar invoked, which were Bates v. State Bar of Arizona involving lawyer discipline; Hoover v. Ronwin concerning bar exams and another discipline case in O’Connor v. State of Nevada. The District Court stated that when it comes to cases that generally challenge either the state bar’s disciplinary function or its function administering bar exams and admitting new lawyers, “the state bar clearly acts as an arm of the Arizona Supreme Court in regulating the practice of law.” But the District Court next made a most critical distinction, “In this case, Plaintiff challenges the way in which the state bar spends mandatory dues on non-regulatory functions and the bar’s procedures for addressing objections to its spending. Because this suit challenges the bar’s spending on non-regulatory programs, the link between the state bar and the Arizona Supreme Court is more tenuous.” The Court then went on to declare that the State Bar, a “non-profit corporation” did not qualify as a state agency for Eleventh Amendment purposes because among other factors, it also maintained “its own treasury and any award of damages would come from the state bar’s funds rather than the state treasury.”

2 Cartoon inspired by a bar executive’s email reference to a lawmaker last session counterintuitively overlooking the Bar’s own 800 lb Chimera in its parlor when describing a bifurcated state bar as “Frankenstein.”

 

 

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petition | by League of Women Voters of CaliforniaA petition was filed today asking the Arizona Supreme Court to amend Rule 32(c) and (d) so as to split the functions of the State Bar of Arizona into two distinct subsets, a mandatory membership organization (“Mandatory Bar”) and a purely voluntary membership organization (“Voluntary Bar”). The amendment to the Court Rules would maintain the current mandatory membership requirement for all lawyers but (1) eliminate mandatory membership dues for non-regulatory functions and (2) allow voluntary contributions for all non-regulatory functions. Read the petition here.

The petition was filed by Sherman & Howard attorney Gregory Falls on behalf of the Goldwater Institute. By way of explanation on its website, the Goldwater Institute reiterates its opposition to “conditioning the practice of law on bar membership in Arizona because coerced membership violates the rights to free speech and free association guaranteed by the United States and Arizona Constitutions.”

It is for this reason, the Institute says it is “sponsoring a rule change petition to allow attorneys to practice law without being forced to fund the lobbying and other non-regulatory functions of the State Bar of Arizona.”

Change Management | by Jurgen AppeloThe petition is reminiscent of HB2221, which the petition acknowledges, “called for a less nuanced version of what Petitioner proposes here.” HB2221 came within 5 votes of clearing the Arizona Legislature and landing on the governor’s desk during the 2016 legislative session. Like today’s petition, HB2221 was modeled on the Nebraska Supreme Court’s bifurcated approach to bar membership articulated in its December 6, 2013 decision Petition For Rule To Create Vol. State Bar Assn. 286 Neb. 108.

j0289753The Nebraska Supreme Court ordered that the requirement be left in place mandating membership in the Nebraska State Bar Association. But the Court also lifted the requirement that attorneys fund the Nebraska Bar’s non-regulatory functions. This meant Nebraska attorneys still paid regulatory and disciplinary costs but were no longer forced to subsidize the Nebraska Bar’s speech and its non-regulatory activities.

In its website statement, the Goldwater Institute acknowledges that “the Nebraska Model falls short of the fully voluntary model used in 18 other states.” It adds, however, that Nebraska’s bifurcated model “is a significant positive step toward associational freedom.”

Another front.

The petition filing opens up another front in the long-term campaign to reform lawyer regulation in Arizona. Along with continuing legislative efforts, the goal is to remediate a system not only rife with inequity but which represents a continuing threat to consumers. In addition to impinging constitutional rights on lawyers by preconditioning membership in a trade association to earn a living in their chosen profession, mandatory bar associations have an inherent conflict of interest because they act as both regulators of and trade associations for lawyers. And that conflict of interest is further exacerbated when lawyers elect a controlling number of other lawyers to represent them in their own regulatory board. By its very nature, then, this cartel-protection system threatens capture of the regulatory board by lawyers at the expense of the public.

Jen, kissing the First Amendment goodbye? | by jasoneppinkConditioning the practice of law on bar membership also violates lawyers’ constitutional rights. The U.S. Supreme Court has found that the only compelling state interest in coercive bar association membership is to improve the practice of law through lawyer regulation. But the fact is that lawyer regulation and improved legal practice can be attained through less restrictive means. 18 states — Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Ohio, Pennsylvania, Tennessee, and Vermont — have already found ways to regulate attorneys without compelling membership

Arizona lawyers aren’t the only professionals concerned with a mandatory bar’s opacity, bureaucratic wastefulness, and divided loyalties to the public and lawyers. Indeed, attorney and public members of the California State Bar’s Board of Trustees are working again with California Legislators to bifurcate that Bar’s regulatory and trade association functions. See Calif. State Bar Blasted for Lack of Transparency  and Lawmakers Fight to Reform California Bar After Audits Skewer Agency for Mismanagement, Lack of Transparency, and Pricey Salaries.

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Credits: Petition, by League of Women Voters of California LWVC at Flickr Creative Commons Attribution license; Change Management by Jurgen Appelo at Flickr Creative Commons Attribution License; Jen, kissing the first amendment goodbye, by Jason Eppink at Flickr Creative Commons Attribution.

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Clarence Thomas - Caricature | by DonkeyHoteyU.S. Supreme Court Justice Clarence Thomas told a meeting of lawyers last week that “unchecked judicial power” means “we leave it for the least accountable branch to decide what newly discovered rights should be appended to our Constitution.” To his point, the role of courts is to interpret constitutions not to make or enforce law. (I won’t repeat that umpire analogy).

Likewise among the states, their supreme courts are supposed to interpret and rule on the constitutionality of statutes not make law from the bench. But when things don’t go precisely like they’re supposed to, you notice.

Which brings me to what happened in Arizona last week. It was the state supreme court decision in the public employee pension case of Honorable Phillip Hall Et Al., v. Elected Officials Retirement Plan/State of Arizona.

Without diving into the weeds, Hall was about retirement benefits and contributions and whether they’re part of an ’employment contract.’ It was also about the Gift Clause in the Arizona Constitution. For an accessibly excellent commentary, see Arizona Republic Columnist Robert Robb’s aptly titled “Pension reform is now impossible in Arizona.”

Yipee! Project 365(3) Day 250 | by Keith Williamson

Pension reform matters because according to a 2013 report by the independent financial research group, Morningstar, most states’ pension plans continue to be underfunded below the 80 percent level considered healthy. As summarized by Ballotpedia, “Decreased funding and increasing liabilities since the 2008 recession continued to put pressure on local and state budgets, in some cases leading to bankruptcy. Higher pension costs can have the following consequences:

  • higher taxes
  • less intergovernmental aid for services
  • lower credit ratings
  • higher interest rates on state borrowing”

I agree completely with Justice Clint Bolick’s dissent in the Hall case. It was well-reasoned and persuasively argued. Most of all, it was refreshingly candid. Reading the majority opinion, you have the sense they didn’t much care for the demurrer.

How bracing, though, to hear a dissenting voice on this state’s high court — so welcome, so invigorating, so rare. Four of the five sitting justices recused themselves because the case would have had a bearing on their own retirement plans. But because Justice Bolick joined the high court after the law was changed, he had no such conflict nor did the four guest justices also deliberating.

Grisham-like legal fiction.

J.C. Hallman 10.06.09 | by kellywritershouse

Bolstered by a sharp wit, Justice Bolick’s keen analysis evoked nods and smiles from the first page. He likened the Court’s 51-year old finding that at-will state employees actually had a contract with the state to “a work of legal fiction to which the likes of John Grisham could only aspire.”

Equally remarkable, too, was that across its 21 pages, the majority failed to mention taxpayers — the poor slobs who’ll face higher taxes or cuts in services to pay promised pension benefits. To be fair, the majority did reference “the State” but in doing so, seemed to gloss over taxpayers who are ultimately the ones saddled with funding shortfalls in the State’s largesse. Indeed, Justice Bolick appeared to chide the majority’s rather cavalier observation that the retirement plan’s “actuarial soundness is within the Legislature’s control” — because it can always hike taxes and court fees — “apparently ad infinitum.”

Judges Gavel“Of the judges, by the judges, and for the judges.”

But the money paragraphs were these from Justice Bolick:
“If  ever  there were a  case in  which  we  should  seriously indulge  the  presumption  of  statutory constitutionality,  this  is  it.   The majority winks  at  that rule,  then  utterly fails  to apply it.   It  repeatedly invokes  the  mantle  of  judicial restraint  while  casually  invalidating  a statute designed  to  preserve  the financial stability  of  a  public  employee pension  plan,  a  purpose  so  important  that  the  voters  made  it  part  of  our state’s organic law.
 
 “The  majority  opinion  portends  a  huge  financial windfall  for the  class  members,  a  burden  the  taxpayers  will  shoulder.   Under  such circumstances,  we  should  act  with  great  restraint,  lest  the  rule  of  law be undermined by  a  public  perception  that  this  decision  is  of  the  judges,  by the  judges,  and  for  the  judges.   On  this  important issue,  the  majority exhibits  no such  restraint,  and we  therefore  respectfully  dissent.”

Outcome-based jurisprudence.

If there’s one thing you learn in law school is that courts sometimes back into their decisions. Adopting what’s called outcome-based jurisprudence, they first decide what the outcome of a case should be and then work backwards to find the reasoning that reaches the desired conclusion. A criticism of this approach was made in March when a split U.S. Supreme Court left mandatory union dues in place in Friedrichs v. California Teachers Association.

In my opinion, the Arizona Supreme Court found the outcome it wanted, which was to shift policy choice burdens away from active employee retirement plan members and place them instead on taxpayers “by freezing employee contribution rates in perpetuity” to quote Justice Bolick. Indeed, he referred to some of the majority’s rationale as “pick-and-choose jurisprudence.”

https://cdn.morguefile.com/imageData/public/files/p/pippalou/03/l/1363479372ipbgy.jpgIn Nevada, I remember its version of “pick-and-choose.” It was the 2003 Nevada Supreme Court case of Guinn v. Legislature, which came about when the Nevada Legislature deadlocked over the state budget. Nevada’s late Governor Kenny Guinn petitioned the Nevada Supreme Court for an Order declaring the Legislature in violation of the Nevada Constitution. More to the point, he wanted the Court to compel the legislature to fulfill its constitutional duty to approve a balanced budget; to ignore the 2/3rd super majority Nevada Constitutional requirement to raise taxes; and to appropriate funds for public education during that fiscal period.

A child's primer of natural history (1899) | by CircaSassyBut there was a fly in the apothecary’s ointment. Notwithstanding the Court’s decision, the Nevada Constitution at Art 4. Sec. 18(2) enacted in 1996 by voter initiative was not to be ignored. The voters and taxpayers enshrined in their state constitution the 2/3 super majority tax hike requirement to make raising taxes difficult. And that was the rub.

It’s clear the Court had the outcome in mind to fund education — a meritorious end to be sure. But to do so, it had to find justifiable means. So it parsed the super majority requirement to pirouette over the voter imposed 2/3 majority prerequisite. It said the requirement was “procedural” while the affirmative constitutional obligation to fund public education was “substantive.”

And so procedural rights were thrown under the bus when the Court decided the substantive right was more important even as Nevada’s Constitution Article 11, Sec. 6 only required that “the Legislature shall enact one or more appropriations to provide the money the Legislature deems to be sufficient, . . . .”

To its credit, Nevada’s high court reversed itself as part of a subsequent 2006 opinion.

But don’t expect a similar reconsideration in Arizona.

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Credits: Clarence Thomas – caricature by DonkeyHotey at Flickr Creative Commons attribution license; Yippee, by Keith Williamson at Flickr Creative Commons attribution license; J.C. Hallman, by kellywritershouse at Flickr Creative Commons attribution license; A child’s primer of natural history, by CircaSassy at Flickr Creative Commons attribution license.

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Home Improvement 26Hat’s off — I think — to State Bar of Arizona President Geoff Trachtenberg for exercising his free speech rights and speaking his own mind. Last month, Trachtenberg emailed the General Counsel to Arizona Governor Doug Ducey to express his “candid thoughts” about why Clint Bolick, one of the nominees to the state’s highest court, was “clearly not the best candidate for the job.” And because Trachtenberg wasn’t expressly wearing his state bar presidential mantle when doing so, I guess folks can’t say he was speaking for the state’s compulsory membership bar.

But the point is hardly incidental. It goes to the heart of First Amendment compelled-speech jurisprudence under Keller v. State Bar of California.  A mandatory bar requires lawyers to join and pay dues as a condition of practicing law in the state. So when a mandatory bar spends member dues on speech that the member opposes such as lobbying against a judicial candidate, the state action that compels payment of dues infringes on that member’s First Amendment rights.

Keller came about when at its 1982 convention, State Bar of California President Anthony Murray derided U.S. Senate Candidate Pete Wilson for urging the recall of Chief Justice Rose Bird if the California Supreme Court overturned the “Victims’ Bill of Rights.” Murray’s speech and resulting bar resolution prompted 21 California lawyers to sue their state bar. Unfortunately for Murray and the state bar, Wilson went on to become a U.S. Senator and eventually Governor of California.

Incongruously, parsing a distinction between private speech and organizational speech doesn’t necessarily provide a safe harbor. See what happened last year to Nevada State Bar President Alan J. Lefebvre who thought he was expressing only his opinion not the Nevada Bar’s when he editorialized on same-sex marriage in the bar’s magazine.

Trachtenberg’s communication was one of a number of letters, emails, and phone calls from Arizonans and from out-of-staters weighing in on Bolick’s candidacy and that of other nominees. As reported by The Yellow Sheet Report (paywall) over 600 critics’ and supporters’ letters and emails sent to the governor and the Commission on Appellate Court Appointments about the state supreme court nominees were just released by the governor’s staff. Having seen Trachtenberg’s email, give the man props for candor — if not for circumspection inasmuch as Bolick was widely regarded as the front-runner.

Speaking for himself and not from the State Bar of Arizona Presidential dais, Trachtenberg opined that state supreme court candidate Bolick was “interested in bringing his brand of justice to the Court — not merely “applying the law.””

Trachtenberg also went on to add that Bolick appears to be more interested in shaping law rather than applying it and “would be better suited to being in the legislature.”

He wrote, “While I’ve not reviewed the applications of existing and former Supreme Court justices, one has to wonder if there has ever been a nominee for Arizona’s highest court who similarly lacks meaningful judicial or practical experience, let alone an actual justice.”

Oops! On January 6th, Governor Ducey announced his appointment of Clint Bolick to the Arizona Supreme Court. In making his first gubernatorial state supreme court appointment, Governor Ducey explained in a press release that “Clint is nationally renowned and respected as a constitutional law scholar and as a champion of liberty.

“He brings extensive experience and expertise, an unwavering regard for the rule of law and a firm commitment to the state and citizens of Arizona. I’m confident Clint will serve impartially and honorably in this important role.”

Prior to his elevation as Arizona’s newest high court justice, Phoenix lawyer Bolick worked as Vice President of Litigation for the Goldwater Institute.

Home Improvement 88Based on past practice, the high court’s newest justice gets assigned as the supreme court’s liaison to the Arizona Bar’s Board of Governors.

Wondering aloud — that first board meeting presided by bar president Trachtenberg with the new justice in attendance might be awkward. But no doubt there’s fence-mending in the offing.

 

 

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Pants on Fire | by Mike Licht, NotionsCapital.com“States that have voluntary bar associations by and large do not have lower overall bar dues,” says a footnote in the Draft Report posted by the Arizona Supreme Court’s State Bar of Arizona Mission and Governance Task Force. “They charge both a mandatory regulatory assessment and separate voluntary bar dues, which together often exceed the annual membership fee in the State Bar of Arizona.”

Sounds well and good — but too bad for the Kool-Aid guzzlers, it doesn’t pass a fact check.

Caricatures 14You can read the Draft Report here and find the above-mentioned quote at the bottom of page 13.

Fact-checking the Bar.

After the better part of a year, you’d think the Task Force would have spent a little more time fact-checking and getting its story straight. Or maybe like George Costanza, it just believes it — so it must be true.

Certainly, there’s a lot in the Task Force Report upon which to take exception, not the least being the conflated mythology again fluttered out on frayed wings that only a mandatory bar can “ensure professionalism and competence” and that only a mandatory bar can protect the public from its lawyers.

Night Shift 31This, of course, ignores the robust lawyer regulation and disciplinary regimes in 18 voluntary state bar jurisdictions. It also wrongs and misconstrues the panoply of membership benefits provided by voluntary bar associations, to name a few, like Ohio’s, Iowa’s, Colorado’s, New York’s, and Illinois.’

Indeed, many if not all the voluntary bar association programs and benefits rival and even exceed the programs, activities and services offered by the compulsory State Bar of Arizona.

And yet, the Arizona Bar likes to pretend that only mandatory bars make available client protection funds; offer law office management and lawyer assistance programs; provide continuing legal education courses; present annual bar conventions; publish monthly bar magazines or support ethics hotlines. Begging the question, the Draft Report shamelessly proclaims,These invaluable services will cease to exist with the demise of the integrated bar because no voluntary bar in Arizona offers them.”

Instead, see what happens in jurisdictions with voluntary bar associations, for example, check out: Ohio and Iowa and New York and Colorado and Illinois. Lawyers in those jurisdictions choosing to join their state’s voluntary bar associations don’t take a back seat to anything offered by the mandatory State Bar of Arizona.

Twain's Men's Room | by bump

 

morguefile.com photo

It takes two hands to put out this whopper.

As for the whopper about how both a mandatory regulatory assessment and separate voluntary bar dues, which together often exceed the annual membership fee in the State Bar of Arizona,” the facts are set out in the chart below.

The data concerning optional voluntary state bar association membership dues was obtained from readily available public online information from voluntary state bar jurisdictions. The attorney registration fee information comes from state court websites although since the Arkansas Supreme Court fee registration information was not publicly accessible, it was confirmed by a licensed Arkansas lawyer.

 

 

fees-sba-web

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The fees in the chart are the full fee maximums for lawyers practicing past the entry-level graduated fee periods. Newbie lawyer fees are typically discounted.

No MCLE in Connecticut, Maryland and Massachusetts.

And then take note of something else not mentioned in the chart. While the breathtaking $945.00 combined regulatory assessment and separate voluntary bar dues appear to make Connecticut a high cost to practice jurisdiction, the overall cost to practice is still lower than in Arizona. Why? Because unlike Arizona, Connecticut does not have mandatory continuing legal education (MCLE). This saves Connecticut lawyers anywhere from $600 to $1000 per year versus what Arizona lawyers pay to satisfy the annual 15 hour MCLE requirement.

The same is true of Massachusetts with its sizeable $761.00 combined regulatory assessment and separate voluntary bar dues. Massachusetts does not have a MCLE requirement. Nor does Maryland, which at $280.00 for both regulatory assessment and voluntary bar dues must be the lowest cost to practice jurisdiction in the United States.

Comparing overall costs to practice.

Work World 14The bottom line is two-fold: One, in voluntary bar states, lawyers can elect to pay only their court-mandated regulatory registration fees and forego joining a voluntary state bar association. This automatically reduces their overall cost to practice as compared to Arizona.

Two, the exact opposite is true of the Task Force’s claim that Arizona’s bar dues are often exceeded by the combined regulatory assessments and voluntary bar dues in voluntary bar jurisdictions. Lawyers in states that have voluntary bar associations pay lower overall bar dues, in some instances much less than the current and still escalating annual membership fee in the State Bar of Arizona, which hits $520 per year on January 1, 2018.

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Photo Credits: “Pants of Fire,” by Mike Licht at Flickr Creative Commons Attribution ; Twain’s Men’s Room, by Robert Occhialini at Flickr Creative Commons, Attribution-NonCommercial 2.0 Generic License.

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