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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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On Monday morning, January 11, 2016, the U.S. Supreme Court will hear a case with potentially positive impact on the First Amendment rights of lawyers.

The case is Friedrichs v. California Teachers Association. Except it’s not a case about lawyers. It’s a union case that’s widely described as “devastating to public-sector unions.

The questions presented in Friedrichs are:

(1) Do public-sector agency shop arrangements violate the First Amendment’s protections for freedom of speech and assembly?

(2) Does the First Amendment prohibit the practice of requiring public employees to affirmatively opt-out of subsidizing nonchargeable speech rather than to affirmatively consent?

But depending on who you ask, a decision for the petitioners would either vindicate workers’ First Amendment rights or in the view of elite lawyer doomsayers “would have a profoundly destabilizing impact on bars all over the country.”  The latter declaration is what 21 former Presidents of the District of Columbia Bar claimed in their amicus brief asking that Abood v. Detroit Board of Education, 431 U.S. 209 (1977) be left “undisturbed.”

Petitioners Rebecca Friedrichs and her co-plaintiff teachers want the Court to overrule Abood. But it’s not because of concerns over the constitutional rights of lawyers even though like the petitioners, they, too, are forced to fund speech they oppose in order to earn a living in their chosen profession. Instead, the petitioners want the Court to rule that the free speech rights of non-union members ought to trump any obligation to contribute to the costs of representation.

In typical exaggerated bull and bunkum, mandatory bar stakeholders contend that a ruling against the California teachers union “would very likely spawn additional time-consuming and expensive lawsuits by bar members who do not want to pay their mandatory bar dues. Such lawsuits would severely distract this country’s thirty-two integrated bars from their critical work “serv[ing] the‘State’s interest in regulating the legal profession and improving the quality of legal services.’”

https://upload.wikimedia.org/wikipedia/commons/thumb/2/29/High_rider_CicLAvia_2010.jpg/486px-High_rider_CicLAvia_2010.jpg If the petitioners prevail, alarmed union leaders believe more workers would become so-called “free riders.” The result could lead to a drop in union membership and revenue that could not only harm existing collective bargaining contracts but change election year dynamics.

Amy Howe at Scotus Blog has a plain English explanation of the case at “Justices return to dispute over union fees for non-members: In Plain English.” Also see “Public Unions Face High-Court Hurdle.”

Why mandatory bars should be worried.

https://upload.wikimedia.org/wikipedia/commons/thumb/f/f2/Captain_of_the_nine_%281912%29_%2814566361667%29.jpg/402px-Captain_of_the_nine_%281912%29_%2814566361667%29.jpg Abood is a case that the nation’s 32-mandatory membership state bar associations rely on to continually impinge on the free speech and free association rights of their members. Abood supports an overly broad interpretation of ‘permissible’ mandatory bar First Amendment encroachments under Keller v. State Bar of California, 496 U.S. 1, 12 (1990). But contrary to what the self-interested past bar presidents said in their brief, Keller allows mandatory bar associations to compel dues only for the narrow purpose of improving the practice of law through the regulation of attorneys.

I won’t dive further into the weeds to analyze Friedrichs beyond recommending you read the arguments of the D.C. Bar and the Goldwater Institute, which also filed its own amicus brief. In part, the Goldwater Institute summarizes its position as follows,

“This Court has always required that chargeable
expenditures related to improving the quality of legal
services also be connected to regulating the legal
profession. Lathrop v. Donohue, 367 U.S. 820, 843
(1961); Keller, 496 U.S. at 14; United States v. United
Foods, Inc., 533 U.S. 405, 414 (2001); Harris v.
Quinn, 134 S. Ct. 2618, 2643 (2014). Mandatory bar
associations and lower courts have mistakenly concluded
that Keller identified two purposes that allow
bar associations to compel membership: “improving
the quality of legal services” and “regulation of lawyers.”
See, e.g., Kingstad v. State Bar of Wisconsin,
622 F.3d 708 (7th Cir. 2010). Misconstruing Keller as
permitting mandatory bars to compel dues for two
broad and distinct purposes harms members’ First
Amendment rights and places Keller in the same
dangerous territory as Abood by leading mandatory
bars to routinely spend coerced dues on a broad range
of political and ideological activities.”

Hubris

https://upload.wikimedia.org/wikipedia/commons/thumb/1/1e/Punch_%281841%29_%2814802616693%29.jpg/472px-Punch_%281841%29_%2814802616693%29.jpgWhat I will opine about is the irony of the District of Columbia Bar taking the lead. Talk about monumental hubris and unmitigated gall.

For one, the D.C. Bar rivals the State Bar of Arizona in its self-congratulatory capacity and unabashed resistance to reform. But what’s especially rich is the poetic justice that could result if the Court also revisits Keller and rules that mandatory bar associations can only compel dues for lawyer regulation and not for non-regulatory purposes like building monuments to itself.

The D.C. Bar is buying an expensive new office monument for itself (just like the Arizona Bar did several years ago). On its website, it maintains that, “ownership of the building allows the Bar to save more than $25 million over 30 years versus renting—money that can be used to find more ways to provide member value while maintaining the Bar’s position in the lowest quartile of dues rates in the country. Doing more. Managing costs. Driving direct member value. That’s what the new home affords the Bar.”

The D.C. Bar is one of the largest in the United States. A preponderance of its members live outside the District of Columbia. As longtime D.C. Bar critic Mike Frisch editorializes at D. C. Bar Wants To Raise Dues Ceiling” about the D.C. Bar’s “lowest dues for a bar its size,” he says it’s “a disingenuous dodge that ignores a fact obvious to anyone who understands the true composition of the D.C. Bar.  D.C. has more out-of-state lawyers than anywhere else. They pay full dues for no service. They are the Bar’s hidden endowment and they fund the profligacy.”

And now thanks to a court order signed last month, as of July 1, 2016, the dues ceiling will be raised from $285 to $380 for D.C. Bar members. At “Happy New Year D. C. Bar: Pay Up!,” Frisch complains, “Now the best-paid bar employees in America can increase their salaries, travel to every domestic and international bar-related party and buy themselves a fancy building with primo views, all at the expense of a membership that had no say in the process.”

No wonder the entitled legal elites at the D.C. Bar got so worked up about Friedrichs. But so should the nation’s 31 other mandatory bars.

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Credits: Morguefile.com, no attribution, High Rider, by Downtowngal at Wikimedia Commons; Captain of the Nine, at Wikimedia Commons, via Flickr Creative Commons; Punch, at Wikimedia Commons via Flickr Creative Commons.

 

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CB023204Perched in air so rarefied the real economy doesn’t incongruously offend the pure oxygenated respiration provided by his laissez-faire advocating employer, the Goldwater Institute’s Clint Bolick looks down his chin at the lawyer polloi and gushes how he “would love to see the entire UPL regime disappear.”

 

For those who think “UPL” refers to a lawyer’s “Upper Profit Limit,” — no, here we’re talking about the “Unauthorized Practice of Law,” which is supposed to be a ‘No-No’ in Arizona — that is, unless you’ve been given a special exemption.

Bolick believes in doing away with any pesky remaining impositions on the unauthorized practice of law so that non-lawyers can dispense even more legal services in Arizona. Libertarian free-marketer and all that, he believes it would be a good thing. And unlike Oliver Twist, he’s neither shy or unabashed about wanting more of it.

Indeed, this was the topic of his Op-ed this month in Arizona Attorney Magazine, the state bar’s house publication.

The easiest pain to bear.

And why shouldn’t Bolick want more legal services deregulation? When you’ve insulated yourself as he has from the concerns of solos and small firms who make up the majority of Arizona’s lawyers, it’s easy to overlook their entrepreneurial worries over such trifles as making expenses; facing competition; overcoming business downturns and generating revenues. Paraphrasing François de La Rochefoucauld’s famous maxim about having “strength enough to endure the misfortunes of others,”[i] in Bolick’s world, the easiest pain to bear is another lawyer’s.

Colorful images of man giving okay sign uid

So now that the Goldwater Institute has cornered the well-heeled and well-funded niche that purports to defend the economic freedoms of those they deem oppressed from those they deem accursed, Bolick pines for more deregulation of legal services while at the same time declaring how happy he is “to live in a state that recognizes that more choices lead to greater access to legal services.”

But has greater access translated into the delivery of “enormously valuable legal services to ordinary people at low cost” as Bolick maintains? Well, it might also depend on what you mean by “low cost” since some of the non-lawyers charge upwards of $100 per hour for their services. But I guess if you’re comparing yourself to one of those $1,000 per hour guys, then charging 1/10th of that must be a bargain — even if those high-priced swells did go to law school.

File:Twain1909.jpgSolo lawyers, however, are a different subject. They’re not knocking down those kinds of bucks — not even close. In fact, I know some solos, for instance, who draft simple wills for about the same price as the document preparers who never saw the inside of a law school.

So without empirical data in support, Bolick’s argument that “the market is able to provide low-cost, high-quality paraprofessional services” serves only to recall what Mark Twain once wrote, “I am not one of those who in expressing opinions confine themselves to facts.”[ii]

Mama mia!

Deregulate the practice of law and lower consumer costs by increasing competition from non-lawyers? Who says? Have consumer costs really been lowered? And where are the empirical assurances that minimum competency requirements have been met and are continuing to be met?

Deregulation is not a new idea. But if taken to its logical consummation, it would undercut the legal academy and legal cartel’s raison d’être. Indeed, last year, two like-minded think tankers while opining about how more jobs and lower prices would be the end result from deregulating the provision of legal services,[iii] belittled the need for law schools and bar exams.[iv]Every other U.S. industry that has been deregulated, from trucking to telephones, has lowered prices for consumers without sacrificing quality,”[v] they further proclaimed.

photoBut unfortunately for their argument, we already know how well deregulation has worked before — for air transportation and electric utility customers, for example. And of course we’re still bent over the chair suffering the burdens visited upon us by the “Mama Mia” of all screw-ups, the deregulated financial markets that triggered the worst global financial crisis since the Great Depression.

No, the truth is that the facts on the ground are much different. Never mind that Bolick scoffs at the “hundreds of bar complaints” against legal document preparers — because they came from his peers — as though a lawyer’s ethical duty of candor and truthfulness is trumped by informing against a competitor.[vi]

Or is a lawyer’s action in compliance with Arizona Ethical Rule 8.3’s duty to report professional misconduct involving other lawyers or judges[vii] also to be accorded similar discredit?

The reality is that lawyers who have tried to repair the incompetent delivery of services provided by legal document preparers don’t have to conjure up a parade of horribles to make the case that consumers aren’t being protected “by choice, competition, transparency, and the enforcement of fiduciary relationships.”

                              

Crisis in the profession.

Moreover, the legal environment is in the throes of radical transformation, thanks in large part to the economic recession; globalized outsourcing of legal services; and the increased digital delivery of online legal services via such providers as LegalZoom, RocketLawyer, JustAnswer, LawBidding, Law Pivot and MyLawyer.com. Not to mention the job-eliminating efficiencies of predictive coding used to perform technology-assisted document review in complex litigation.[viii]

business woman frustrated

The other reality is that there is a glut of lawyers and that there are fewer jobs for them. And so there is a fundamental restructuring taking place in the delivery of legal services. Adapt or perish. The landscape is being transformed. And with the bankruptcy, for example, of the storied firm of Dewey & LeBoeuf, the end of the old law firm business model is also nigh.

Irrespective of the crisis-deniers in the legal academy, the story is out. This past March, for instance, even the ABA Journal featured a Paradigm Shift Series, to show “how traditional U.S. legal education paradigms, driven by federal loan underwriting, are not responding to the market forces as law schools continue to add students and raise tuition rates in a mature legal services industry.[ix]

Indeed, facing external pressures over allegations of having supposedly condoned misleading law school post-graduation employment numbers, this past summer, the American Bar Association finally clarified the grim nationwide post-graduation employment picture for law school graduates. It is worse than previously thought.

Jobless and indebted.

Only 55% of the class of 2011 had full-time, long-term jobs that required a law degree nine months after graduation. This past July, the New York Times editorialized, “These numbers are far worse than jobs data going back a generation and should be a deep embarrassment to law schools, which have been churning out more graduates than the economy can employ, indulging themselves in copious revenues that higher tuitions and bigger classes bring in. A growing list of deans acknowledge that legal education is facing an existential crisis . . . .” [x]

Back breaking tuition increases, which over the past 20 years have outstripped the inflation rate[xi], have escalated so much at both private and public law schools that according to a recent Pew Research Study reported by the Los Angeles Times, “the share of American households affected by student debt has more than doubled in the last two decades, soaring from 9% in 1989 to a record of nearly one in five in 2010.” [xii]

And according to the previously mentioned New York Times Op-ed, “As tuition has soared, so has student debt. Nearly 9 out of 10 graduates have sizable debt, with $98,500 the average for the class of 2010, about $1,200 a month in loan payments over 10 years. Most schools and many students have banked on students’ being able to pay back enormous loans with ample salaries, but that flawed model is irretrievably broken.” [xiii]

A ‘Golden Age’ for consumers?

https://i1.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/b/b8/The_Golden_Age.jpg/320px-The_Golden_Age.jpg

So here’s the rub, Bolick’s unsupported paean to deregulation Utopia notwithstanding, with so many underemployed and unemployed lawyers, the excess capacity ought to be driving down prices and increasing competition — without opening the non-lawyer floodgates further. We should be on the brink of a golden age for consumers even now.

The laws of supply and demand should be operative in the face of a glut of supply; of ascendant multi-jurisdictional practice; and of relentless advances in technology. But that’s not the case — not when jobless young lawyers are saddled with six-figure nondischargeable tuition debt and lack the timely ability to pay it back.

File:Perrault1.jpgSo at the intersection of Bolick’s deregulation fantasy, the more reasonable debate ought to be not about how to allow even more “paraprofessionals” to engage in what for all intents and purposes, (mandatory disclaimers notwithstanding), looks like, swims like, and quacks like a law-practicing duck.

No, the better debate should be — what to do about all those trained, credentialed and available young lawyers. And parenthetically, we should be asking how to lead the transformation occurring in the practice of law. Will it require, as law professor Paul Campos suggests, fewer law schools and the “return to the faculty student ratios and faculty compensation structures of three decades ago”?

photoOr will it mean an even more radical revolution in the way lawyers are educated; in how they finance and pay for a legal education; and finally by a legal establishment that at long last decides to truly adopt and not dodge a model definition of the practice of law?

And instead of more deregulatory pipe dreams, how about a model definition of the practice of law based on a narrow definition that provides greater assurances of competence in the delivery of legal services to consumers.[xiv]


[i] François, duc de La Rochefoucauld. The Moral Maxims and Reflections of the Duke de la Rochefoucauld, 2nd ed. London: Methuen & Co. Ltd., 1912.

[ii] Mark Twain, What Is Man?, The Complete Essays of Mark Twain. Ed. Charles Neider. New York: Da Capo Press, 1991. But even more on point may be the other famous quote long attributed to Twain, “Never let the facts get in the way of a good story.”

[iii] Clifford Winston and Robert W. Crandall, Time to Deregulate the Practice of Law, Wall Street Journal, August 21, 2011, http://online.wsj.com/article/SB10001424053111903918104576502132536596092.html

[iv] Ibid.

[v] Ibid.

[vi] Ironically, notwithstanding Bolick’s implication that lawyers ought to be disqualified from complaining about nonlawyer document preparers, his hymn to a deregulated Eden finds possible support thanks to an apparent absence of consumer complaints in Arizona. The American Bar Association, Standing Committee on Client Protection, 2012 SURVEY OF UNLICENSED PRACTICE OF LAW COMMITTEES, Chart III, was blank for Arizona’s response to the survey query: “Has Your jurisdiction received complaints re: nonlawyer providers? (Describe).” But before popping the champagne cork, also see List of Revoked and Suspended Certifications.

[vii] Rules of Professional Conduct, Arizona State Bar Website, 8. Maintaining the Integrity of the Profession, ER 8.3.   Reporting Professional Misconduct, (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority, except as otherwise provided in these Rules or by law.  (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority. http://www.azbar.org/Ethics/RulesofProfessionalConduct/ViewRule?id=60 (last visited October 1, 2012).

[x] Lincoln Caplan, Editorial, An Existential Crisis for Law Schools, New York Times, July 14, 2012, http://www.nytimes.com/2012/07/15/opinion/sunday/an-existential-crisis-for-law-schools.html?_r=0

[xiii] Caplan. op. cit.

[xiv] See Soha F. Turfler, A Model Definition of the Practice of Law: If Not Now, When? An Alternative Approach To Defining the Practice of Law, 61 Wash. & Lee L. Rev. 1903 (2004),

http://scholarlycommons.law.wlu.edu/wlulr/vol61/iss4/13

See generally Non-Lawyers Find It Hard Avoid Breaking Bar’s Vague Rules – Forbes and Richard Granat’s comments at Draft Model Definition of the Practice of Law.

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Photo Credits: “Mark Twain,” in public domain via Wikipedia; “Possible plumber,” by Tony Alter, Tobyotter, at Flickr via Creative Commons-licensed content requiring attribution; “Unemployed,” by Misha Dontsov at Flickr via Creative Commons-license requiring attribution;Illustration de ma mère l’Oye, par Gustave Doré, public domain via Wikipedia; The Golden Age by Lucas Cranach the Elder (1472–1553) at Wikimedia Commons, public domain;Kongen av eventyrland / The King of Fairy Tale Land, by National Library of Norway at Flickr via Creative Commons-licensed content requiring attribution; Zombies 023, by Jhayne Foxtongue at Flickr via Creative Commons-license requiring attribution.

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The September 2011 issue of “Arizona Attorney,” the state bar’s vapid public relations mouthpiece, featured an ‘atta-boy cowboy’ opinion, “Improving Merit,” by the Goldwater Institute’s Director of its constitutional litigation center.

Notwithstanding its pat-my-own-back pronouncements extolling its call for greater governmental transparency, enhanced individual rights, and expanded liberty interests, one of Goldwater’s luminaries and self-described “fan of merit selection” found himself applauding Arizona’s insular system of selecting and retaining judges. It’s a system that trumps judicial independence over electoral accountability.

The Goldwater Institute is the self-described “conservative public policy research organization,” self-proclaimed champion of “more transparency in government,” of “adherence to constitutional law,” of “individual rights” and of expanded economic freedom and liberty.

The Goldwater Institute’s Clint Bolick wrote the above-mentioned commentary blessing benignly a November 2011 ballot referendum enshrining compromise “reform” legislation concerning Arizona’s merit selection system. I blogged previously about this so-called “reform” at Barry Bonds-like “small ball” and at Playing “small ball” on judicial merit selection and retention in Arizona.”

Wooden pulley and rope of boat riggingUsing the old pulley approach of pulling down something else to raise up his own interests, Bolick favorably compared Arizona’s judicial selection system while teeing off on other jurisdictions whose “scales of justice” he declares aren’t as “well balanced” as Arizona’s. He advanced his argument by mentioning a couple of cute but hardly persuasive or dispositive anecdotes. One ‘war story’ was about a newly appointed Illinois judge “freshly plucked from the state legislature where he publicly opposed the policy you’re advocating.”

But there are two problems with that complaint. First, notwithstanding objective tests for the appearance of bias, when it comes down to it, judges rely on their own subjective analysis to decide if they should recuse themselves because of potential bias. And as noted by the excellent article, “The Best Defense: Why Elected Courts Should Lead Recusal Reform,” “Allowing judges to decide challenges to their own impartiality is not a policy calculated to promote vigorous enforcement.” (Also footnoting the ancient legal maxim, “Nemo iudex in causa sua,” or “no man shall be a judge in his own cause.”) Also take note, for example, of the decision in the California Proposition 8 gay marriage ban and the Motion to Vacate Judge Walker’s Judgment Against Prop 8 is Denied.”

Second, there’s the U.S. Supreme Court’s 2002 ruling in Republican Party of Minn. v. White, which protects the First Amendment Free Speech rights of judicial candidates and allows them to announce their views on disputed legal or political issues. So what, then, if the Illinois judge was previously on record against Bolick’s policy argument?

The rich part.

But here’s the really rich part. Except for Texas, every merit selection proponent’s poster boy jurisdiction, the other examples Bolick complains about, New York and Florida are ironically like Arizona. Both have similar judicial merit selection and judicial retention systems. So much for the panacean balm of merit selection.

Of New York, Bolick noted how a court had sent mail addressed to his former employer, the Institute of Justice, as the “Institute for Injustice.” The account, however, presumed the jurist addressed the letter himself. And perhaps this is what actually happened since one can well imagine an impoverished New York – – – short-staffed, bereft of clerks, judicial assistants and otherwise unique that way.

Bolick then poked fun at “Bubba,” a Florida judge who wouldn’t recuse himself from a case where his son was marrying a union president’s daughter since the union president was one of the parties in the case. Again, it’s up to the jurist to make the determination. Moreover, thank the vague “probability of bias” test articulated in the U.S. Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. for unavailing help.

But given that Florida is a merit selection/retention state, how again, does merit selection help alleviate the non-recusal problem? Also see “Judicial Recusals & Evolving Notions of Due Process,” Univ. of Penn. Journal of Constitutional Law (forth. 2011) (authors: Andrey Spektor & Michael Zuckerman)

Florida established merit selection in 1972 and has subsequently amended it 4 times. New York has had merit selection in place since 1975 for its Court of Appeals. Other New York courts were added in 1977 and 1978. See the American Judicature Society report, Judicial Merit Selection: Current Status.”

Cook County, Illinois – – – a special case.

Admittedly, Illinois, the other jurisdiction he complained about, does not have merit selection. But in Cook County, specifically, there is a ham-fisted system of “slating” by political parties, which amounts to a merit-selection like anointing, except by political movers and shakers.

Slating has been rightfully and harshly criticized over time, including recently in a public radio broadcast on Chicago elections at Act Two. Donkey See, Donkey Do” as part of This American Life’s” inquiry into the “Old Boys Network.” And also see “what passes for merit selection of associate judges, who are chosen by the county’s 275 circuit judges” in “Madigan letters offer glimpse of clout in Cook County judge selection.”

Cartoon Technology 8

But what Cook County, Ill. does share in common with Maricopa County is first, judicial retention elections that are replete with an incredible mass of judicial retention candidates on an unwieldy ballot. The second distinction shared is that once in office, Cook County judges don’t lose retention elections. Since 1990, not a single judge has lost a retention election in Cook County. And since 1974, only two judges have lost a retention election in Maricopa County.

Indeed, speaking of overwhelming numbers, last November, Cook County had five more judicial candidates on their ballot than Maricopa or a mind-numbing 70 to 65 that voters had to pore through – – – if they were going to vote for all the judges. As former Cook County Clerk David Orr opined two years ago,“It’s Time to Get Judicial Retention Elections Off the Ballot,”  “electing judges through retention contests – – – undermines the quality of judges, in part because there are too many on the ballot. Judicial retention races are a paradox, where too much democracy means no democracy at all.”

And in the same essay, Orr criticized retention elections in that they virtually assure an office for life, “For without the possibility of losing, we don’t have democracy. What we have is something else, altogether. A respectable judiciary deserves better.” And also see “Electing Judges in Cook County: The Role of Money, Political Party, and the Voters.”

‘Jane, you ignorant voter’.

The problem with superficial, flippant analyses like Bolick’s is that they minimize serious issues. It’s one thing to be snarky but another to be substantive. It’s not easy to pull off both.

The nub of the problem, which has to be adequately resolved, is this, “As between judicial independence and judicial accountability, should one take precedence over the other?”

Unfortunately, proponents of judicial independence have always been too quick not just to toss voters under the bus but to back up the rear tires and make sure. Some even cite self-serving studies that “the American public does not understand much about how the judicial system works and are flat wrong in their understanding of the judiciary’s role in our government.”

photoSuch advocates even go further and speciously claim that “voters do not really want to choose their judges, no more than fans really want to be involved in the hiring and firing of umpires.” Maybe, it’s just me – – – but when I’m at a ball game and in between peanuts and a beer, I never think of umpires in terms of my life, liberty or property interests.

And after stating that the “fact of voter apathy is not a rub on voters,” I couldn’t help but be reminded of how much such elitists’ disdain of an unenlightened electorate reminds me of Saturday Night Live’s “Weekend Update” and of Dan Aykroyd’s riposte,Jane you Ignorant slut.”  See Ted A. Schmidt on Merit Selection of Judges.”

A “bullet” dodged but those were blanks.

So here’s the reality-check about the merit selection compromise, which the state bar is characterizing as “We dodged a bullet,” and which was glossed over by Bolick’s glibness. The bullet was a blank cartridge.

photo

1. In all the ways that matter, the state bar’s influence remains the same. The bar still has a designated seat at the judicial nominating commission table and the bar still plays a crucial role in recommending the make up of the commissions’ attorney members since they will still vet all the attorney nominees to the commission.

2. Increasing the list of nominees from 3 to 8 is much ado about nothing. The commissions were previously already authorized to nominate “not less than three” and could have conceivably nominated more than three.

3. Increasing judicial terms from 6 to 8 years is no boon to the electorate. How does extending the electoral interval even farther out improve the accountability of elected officials?  Moreover, Arizona voters previously voted for legislative term limits. What if instead of two-year terms, Arizona legislators came up for reelection every 8 years?

4. And extending the retirement age from 70 to 75 benefits who?

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Photo Credits: Red pulley by Jens Rost, it’s Comrade Foot! via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr;Ball game food by Rudi Riet, randomduck, via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr; Acrobat under fire by grendelkhan via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr.

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