110th Installment. The judicially unconstrained California State Bar: The Marilyn S. Scheer Matter

Review petitions filed by State Bar respondents must be considered by the California Supreme Court, that being the only form of review by any court of record, as required by the 5^th and 14^th Amendments for deprivation of a property right. The California Supreme Court last granted a respondent’s petition for writ of review 14 years ago. If the California Supreme Court fails even to consider review petitions, there’s created a federal question. 

Marilyn Scheer has a petition for writ of certiorari before the U.S. Supreme Court and a 1983 action on appeal before the 9^th Circuit. She argues, among other meritorious contentions, that it defies credibility that over 14 years and hundreds of petitions, the State Bar Court has committed not a single reversible error. She concludes that the federal courts should overturn In re Rose (2000) 22 Cal.4th 430, which established the Supreme Court’s absolute discretion to deny formal review, that process alone compelling the court to issue a written opinion. 

While the facts overwhelmingly point to the absence of judicial oversight and the deprivation of federal due process for California State Bar respondents, Scheer’s case is no assured win. When the California Supreme Court rubber stamps a Review Department decision by denying a respondent’s petition for writ of review, it certifies that it has given the petition its conscientious consideration. For any federal court to conclude that California’s high court hasn’t actually even considered the rejected petitions is to accuse the justices of dishonesty. The federal courts will be reluctant to level, for the sake of California State Bar respondents, an accusation of that moral magnitude against their California brethren.

Still, Scheer’s argument, based on 14 years without review, is powerful. Meanwhile, the California Supreme Court’s position is so facially untenable as to require that we explain how it got in this legal predicament. Wouldn’t it be worth the Supreme Court’s time to take at least a single case during the whole 14-year period following In re Rose?

No, it probably would not. I’ve shown that in its dealing with the State Bar, the politician judges on California’s Supreme Court are concerned only with managing the court’s public image. There’s no good PR in absolving lawyers.

I’ve long maintained that the California State Bar is not fundamentally worse than the state bars throughout America. In the licensing and discipline of lawyers, there’s no serious policy federalism or even islands of competence. But in the de facto absence of any judicial review, California stands alone. This must weigh in Scheer’s favor in federal court.