Saturday, September 20, 2008

kanBARoo Court. 48B Installment. The Mechanism of Review

The State Bar Court is not a court, since institutions function judicially only when subject to review. The formal review procedure falls short of actual judicial supervision, as the results show. Since the In re Rose (2000) 22 Cal.4th 430 opinionless-decision case, the Supreme Court has granted only a single petition of review (see In re Silverton (2005) 36 Cal.4th 81) and has reversed no State Bar recommendations, even partially. Absence of written opinions would ordinarily determine that the State Bar Court is subject to no supervision by an Article VI court. But the State Bar has a special relationship to the Supreme Court, its assigned supervisory role over the State Bar Courtnot its general judicial supremacy in California—authorizing its review. To exercise its supervisory function the court would be compelled to grant petitions for review — or so I thought — when the State Bar's practices were potentially embarrassing or spiraling out of control. While the law provides for no method of supervision at the case level besides review, the review process's rubber-stamp character means the Supreme Court must have other supervisory channels, other means of expressing displeasure with the State Bar, even when the petition's denial is the court's only public act.

The other major factor that causes a practical absence of granted petitions is the unreasonably high standard for reversing the State Bar Court. Often, to reverse the State Bar Court — where the clear-and-convincing-evidence standard had favored respondent — requires that the State Bar respondent prove the State Bar Court's decision was wrong by clear-and-convincing evidence. In the usual case it is under the clear-and-convincing-evidence standard that the Supreme Court must determine the State Bar respondent is more likely than not to prevail
for the Supreme Court to grant a full review. The clear-and-convincing-evidence standard for prevailing raises the bar on preliminary review so inordinately as to extinguish the review process.

Combining the clear-and-convincing-evidence standard with opinionless reviews means that the State Bar respondent must not only meet this extraordinary standard of disproof but also receive no information on the petition's insufficiencies relative to this least intuitive of standards. Petitions for rehearing become almost impossible to write.


David Stevens said...

Am I the first person to wonder whether your case raises Federal issues -- now, at least?

Stephen R. Diamond said...

Disbarment proceeding are subject to federal procedural due process under Ruffalo v. U.S. The federally enforceable due process right is limited to the right to a fair hearing, exactly the basis for my Supreme Court writ petition. But to go to federal district court, as opposed to the U.S. Supreme Court, you would proceed under the Civil Rights Act, and you would have to show that some law or regulation violates the U.S. Constitution, that the constitutional infraction was other than the specific treatment the petitioner received. To keep the federal route open, my petition included the clerical hypertechnicalism issue.

I'll be looking at federal relief and blogging my results, as the question carries general interest. Richard I. Fine, about whose case I have opined, has filed in federal district court. But I'm not going to do it unless I can prevail, and I haven't found reason to think so, as I find that basic State Bar law doctrine is essentially monolithic, and emanates from the ethics bodies in the American Bar Association. An interesting topic, those connections, if one knows how to do that sort of research.

By the way, on an earlier disagreement, you got it right on rotten to the core versus severely broken.