Farewell to A Great Dissenter

Justice Joyce Kennard

As a rule, the retirement of a great jurist is always an occasion to look back at why that jurist is considered great.  Justice Joyce Kennard is not an exception but could well have been one that the rule was written for.  Her retirement from the high court is more newsworthy than the average Supreme Court retirement and newsworthy for California lawyers, most especially those who pay some attention to law of lawyering.   No recent member of the California Supreme Court has displayed more interest in our little (?) corner of jurisprudence than Justice Kennard.  I saw that firsthand when I attended oral argument in the Birbrower case. Her questioning, as it was already reputed to be, was sharp and insistent, delivered in a tone of total confidence that delivered the message that this jurist had indeed not only read the papers but had given a lot of thought to the topic.

She dissented in Birbrower, just as she dissented in  In Re Rose (2000) 22 Cal.4th 430 and Obrien v Jones (2000) 23 Cal. 4th 40.

Rose is perhaps one of the most important cases that you never heard of.  The issue was whether an attorney has a right under the California Constitution to a judicial hearing before that attorney’s license is revoked for suspended.  Justice Kennard, as usual, minced no words:

The majority’s decision here produces a startling anomaly: Attorneys are the only persons whose state occupational licenses can be revoked or suspended without a judicial hearing. When the right to continue practicing a trade or profession is at stake, only attorneys are denied their day in court. I would avoid this anomaly by recognizing that the state Constitution’s guarantees of oral argument and a written opinion apply in attorney suspension and disbarment proceedings.

While the rest of the Supreme Court seemed to be fleeing from involvement with involvement with attorney discipline, apparently content to leave it up to the Legislature and the Legislature’s creation, the State Bar of California, Justice Kennard was pointing in the other direction, standing up for maintaining the judicial branch’s traditional power in the area of regulation.  That point was brought home in Obrien, the remarkable case where the Presiding Judge of the State Bar Court brought an action to stop changes in the appointment process for State Bar Court, changes that would take the appointment power of most State Bar Court hearing judges away from Supreme Court and give them to the Legislature and Governor, and remove the public member of the Review Department, one of Robert Fellmeth’s designed reforms.

The legislation in question had a questionable provenance.  It was sponsored by democratic Senator John Burton who had testified as a character witness in the moral character proceeding of Eben Gossage, an applicant for admission to the State Bar.   The public member of the Review Department, republican Ken Norian, had voted against Gossage’s admission, which the California Supreme Court later denied (In Re Gossage (2000) 23 Cal.4th 1080.)  There was more than a whiff of payback in the air.  Whether the State Bar Court was a target or not, the majority (opinion by George C.J.) went along with shifting the appointment powers, citing their “traditional respect for legislative regulation of the practice of law, based upon principles of comity and pragmatism” and tempering the legislative changes by filtering them through former Cal. Rule of Court 9.61, now rule 9.11.  Justice Kennard argued for a bright line on separation of powers, again on Constitutional grounds:

The majority holds that the state Constitution’s separation of powers clause permits officers of the legislative and executive branches to appoint and reappoint judges of the State Bar Court and to alter that court’s composition by eliminating public (that is, nonattorney) representation. I disagree. Because the State Bar Court operates as an arm of this court in hearing attorney discipline matters, and because this court has primary authority over attorney discipline, judges of the State Bar Court are subordinate judicial officers that must be answerable only to this court. Because the law at issue makes State Bar Court judges subservient to members of the political branches, and because it alters the composition of the State Bar Court in a way likely to reduce public confidence in the attorney discipline system, the law is invalid under the separation of powers clause of the California Constitution.

Justice Kennard acknowledged in Birbrower,that the legal business had changed, that geography had been made largely irrelevant by technology and that argued that legal regulation needed to acknowledge that.  In Rose and Obrien, she looked to the best traditions of the legal profession and the concept of lawyers were more than mere economic actors but important components of the judicial branch, along with judges, as actors in the justice system.  These decision might be regarded as two more rocks tumbling down the sliding slope from officers of the court to legal service providers, with all implications for who might appropriately regulate the changing profession.  To her credit, Justice Kennard resisted the avalanche, implicitly acknowledging the unique position of the legal profession as something worth preserving in a changing world.

I once had the great honor of meeting Justice Kennard at a bar reception in San Diego. At the risk of sounding goofy, to me it felt like meeting a rock star.  I thanked her for her dissents and told her that I thought the Supreme Court should get more involved in attorney discipline. And indeed it has, although that involvement hasn’t involved open transparent review of disciplinary decisions but less explicit administrative moves, like returning 42 stipulated decisions to the State Bar Court for rehearing, guided only by a cryptic sentence that they be reconsidered in light of “disciplinary standards” ( lower case.) Sometimes I wonder if I should be more careful about what I wish for.  But there is no going back from the reality that it the Legislature that is firmly in the drivers seat and will be for the foreseeable future.

Update.  Diane Karpman reminds me that I have neglected Justice Kennard’s dissent in Flatt v. Superior Court (1994) 9 Cal.4th 275 and her majority opinion in Viner v. Sweet (2003) 30 Cal.4th 232, which undoubtedly reflects my interest in structural issues as well as Diane’s perspicacity on the substantive law.  Justice Kennard, of course, had a keen sense of both.

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