Wednesday, November 20, 2013

105th Installment. Humiliated California State Bar tries to corrupt the Franchise Tax Board: The search for a sufficiently despicable debt collector

Reeling at exposure of its partnership with debt-collection thugs at Wakefield Associates, the California State Bar now overreaches by trying to fraudulently manipulate tax collection. Rather than, as before, delegating to gray-market criminals the collection of its fake trial, litigation, and investigation costs, the Bar will ask California’s tax collectors to hand over any refunds due these respondent “debtors.” This collection method is used for back taxes and judgments owed state agencies (Gov. Code, § 12419.5), but as the U.S. Supreme Court held, the California State Bar is not a government agency for the purpose of adjudicating members’ federal rights. (Keller v. State Bar of California (1990) 496 U.S. 1, 11.) By treating “costs” as an ordinary judgment owed California, the State Bar treats its unilateral claims for money owed as a real court-judgment’s equal, flagrantly violating lawyers’ federal right to due process.

The illegality of the State Bar’s collection methods can be clearly understood from two legal histories: 1) the changes in methods the Legislature has authorized for collection of the State Bar’s costs and 2) the State Bar’s previous attempt to misappropriate the prerogatives of a “government agency.”

Before 2004, the State Bar could recover costs from lawyers by only a single means: conditioning readmission on payment; but with the passage of Business and Professions Code section 6086.10, the State Bar unconstitutionally acquired the prerogative to enforce its claims through the courts without a real judgment—without even any process for its lawyer victims to contest the State Bar’s invoice. Why did these changes wait until 2004? Because there are decisive legal reasons to deny the State Bar use of coercive collection methods. To allow the State Bar to recover based on its own edict is to deny respondent lawyers their due-process right to an impartial tribunal: constitutionally, the State Bar can’t act as both a respondent’s opponent and as adjudicator of cost claims. (Nor can this role be filled by the California Supreme Court, since it functions as the State Bar’s boss, this role distinguished from its being the state court of last appeal.)

The State Bar’s overreaching raises the same question the U.S. Supreme Court answered in Keller, a case also illustrating how distant from the legal mainstream—how extremist—is the California Supreme Court when it comes to supporting the State Bar’s goonish methods: in Keller, the U.S. Supreme Court rejected the California Supreme Court’s decision unanimously. Keller invalidated the State Bar’s practice of shamelessly using members’ dues for political propaganda. Political use of tax dollars by state agencies is permitted, and the California Supreme Court had held that the State Bar was entitled to its political spending because California law terms it a state agency. (See Keller v. State Bar (1989) 47 Cal.3d 1152 [reversed].)

This false characterization was refuted by a three-member minority of California Supreme Court justices and a unanimous Supreme Court of the United States. The State Bar can be a “government agency” for some state-law purposes, but when members' federal rights are at issue, it should be treated as a private club. Its most important differences from a “government agency” are that the State Bar is run, not by the public, but by its members; and the State Bar is financed, not by taxes, but by members’ dues. Both the U.S. Supreme Court and the California high-court’s minority analogized the State Bar to a labor union. (I think the prohibition on political spending is unfortunate as applied to labor unions, but that’s another question.)

Now, take the labor-union analogy a step further. Imagine that a union tried to levy on debt it unilaterally claimed a union member owed. That’s what the State Bar (with the State Legislature’s connivance) proposes. A “judgment” for "reasonable costs" issued (as a blank check) by the Supreme Court in its Bar-supervisory capacity is as unconstitutional as was the State Bar’s political propaganda.

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