State bar issue heads to high court

Justices involved in regulatory dispute they'll eventually hear

Monday, September 15, 2003

By SARAH C. VOS
Monitor staff

The state Supreme Court has decided to arbitrate a dispute between the Legislature and the state Bar Association, a move that casts the justices in an uncomfortable position: referees in an argument they are a party to.

Earlier this year, the Legislature passed a law ordering the bar to vote on whether membership should be mandatory. The bar has been unified, as mandatory membership is called, since 1968 by order of the Supreme Court. If the members decide to keep unification, the law would limit the issues that the bar could talk to legislators about.

Traditionally, the Supreme Court has regulated the bar as part of the administrative duties given to it by the state constitution. Supporters cast the bill as a civil rights issue for lawyers, giving them freedom and independence from the courts. Detractors said it was yet another attempt by the Legislature to curtail the influence of the courts.

After the bill was signed into law, the Bar Association asked the Supreme Court to declare the bill unconstitutional, arguing that the Legislature violated the separation of powers clause by interfering in the court's business; that the law unfairly restricted the free-speech rights of the bar by limiting its lobbying; and that the Legislature had no right to interfere with a private organization.

Last week, the justices announced they would hear the petition. Essentially, the court will have to decide who regulates the bar: it or the Legislature.

"The fact that this involves the court system really means that the court needs to be careful," said Chris Reid, Gov. Craig Benson's legal counsel and a former legislator who sponsored a similar bill two years ago. "I don't see this as a crisis. I see this as the way our legal system works."

Concord lawyer Andru Volinsky says he blames himself for the law, and he's only half joking. Volinsky was one of several lawyers who litigated the Claremont cases. As a result of the lawsuits, the court declared the state's education funding system unconstitutional, and the education funding crisis began.

Since those decisions, the court and the Legislature have clashed several times. There was the impeachment of Chief Justice David Brock, the redistricting fiasco last year and the court funding dispute this year.

"A lot of legislative action and actions by governors since the late '90s have been a real clear pushback on the court, because of the court's Claremont decisions," Volinsky said. "So I have some questions about the motives behind it."

But Rep. Robert Rowe, the lawyer who sponsored the bill in the House, doesn't believe that the law will rise to a conflict between the branches, although he finds the appeal interesting.

"I wonder where we're going to find a judge who doesn't have to recuse himself," Rowe joked, "because they're all members of the Bar Association."

Rowe says he's glad the court has decided to hear the case, and he looks forward to the conversation. After all, the constitution clearly gives the court the power to decide what is constitutional and what isn't, he said. And if the citizens don't like the decision, they can amend the constitution, although Rowe doubts this issue rises to the constitutional-amendment level.

"I hardly think this is anywhere near important enough to do something like that," Rowe said.

Reid believes the court will rule against the bar.

"First, this bill doesn't get rid of the Bar Association," Reid said. "Second, it doesn't restrict the free-speech rights of a private association. Third, it doesn't step into the separation of powers. Frankly, it's right squarely within the Legislature's authority."

Russ Hilliard, president of the Bar Association, believes the bill sets a dangerous precedent. If the Legislature can regulate the bar, what's to prevent it from regulating lawyers and sanctioning those who challenge laws, Hilliard said.

"Just as judges need to be independent, lawyers need to be able to represent their clients zealously and not fear retaliation," Hilliard said.

Reid disagrees. For him, the law isn't about the Legislature controlling lawyers but about lawyers not being forced to support programs and lobbying they disagree with.

"A private association can make me come to a meeting, wear a silly hat and sing a song praising a grand pooh-bah," Reid said. "But a mandatory association can't do that."

The Bar Association will file its brief in the case next week, and the state is expected to respond a month later. Oral arguments have not been scheduled.   ¶ 9:09 PM