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An Attempt at an End Run on Prop. 209

October 31, 1996

Election Day is next Tuesday. No one gets to cast their vote until then. Right?

Think again.

The Los Angeles City Council is rushing to place a pre-election straitjacket on Proposition 209 even if it wins at the ballot box.

Proposition 209 would ban racial preferences in hiring and contracting by all governmental and public agencies. The initiative is supported by 54% of likely voters, according to the most recent Los Angeles Times Poll. And that has the quota crowd ready to man the barricades.

The council's weapon is a consent decree resolving a class action discrimination case against the Los Angeles Police Department, Tipton-Wittingham vs. City of Los Angeles, that would force the department to adopt rigid hiring goals for women, Asians, Latinos and African Americans. Proposition 209, by its own terms, would not apply to court orders or federal consent decrees entered into before the initiative's passage. A decree imposing racial goals on the LAPD would therefore remain enforceable despite the obvious will of the voters.

Even discounting its impact on 209, the consent decree is dubious. Incredibly, it would be binding for nearly 20 years, even though the lawsuit's allegations have yet to be thoroughly investigated. It would not completely settle the Tipton lawsuits; City Hall could still be sued for millions of dollars now and in future litigation. Officials estimate that the city would immediately have to pay $1.6 million in fees for the plaintiffs' lawyers, including the ACLU and the NAACP, in addition to ongoing attorneys fees and stipends for consultants called for by the decree.

The decree is hopelessly complicated and bureaucratic, establishing a new commission at taxpayer expense to handle bias complaints, notwithstanding the fact that an independent police commission already exists. The LAPD has moved in good faith to implement the Christopher Commission recommendations. In 1995, the department received only 170 complaints of excessive force--many found to be without merit--out of approximately 150,000 arrests.

At one time in the not-too-distant past, the LAPD had a reputation as one of the most effective and incorruptible public agencies in the world. The proposed consent decree would be little more than an oppressive, 20-year constraint, threatening to further undermine morale and confidence among rank-and-file officers.

So why rush this ineffective and expensive consent decree through now? Mayor Richard Riordan, who has publicly opposed Proposition 209, nevertheless opposes this consent decree. On the City Council, Laura Chick and Mike Feuer also are urging a wait-and-see position. There is no good reason to approve it now--except to attempt an end run around Proposition 209's prohibition on preferences and quotas.

This is not the first time the City Council has sought to back-door the voters of California. On Nov. 9, 1994--one day after Proposition 187 was approved by 59% to 41% statewide and by 51% of Los Angeles voters--the council joined a federal lawsuit seeking to toss it out. With eight lawsuits already filed in federal and state courts against 187, including one by the ACLU, the council's move was unnecessary. "What the voters are angry about is their elected officials taking their money to take an activist position to overturn what they did when they approved Proposition 187," Councilman Joel Wachs said at the time. "That is what they see as the arrogance of elected officials."

The council's maneuverings on 187 and the proposed consent decree suggest that the Riordan-backed reforms of the City Charter should be given serious consideration. The mayor's proposal would create a 15-member commission to rewrite Los Angeles's 71-year-old charter and would give citizens more power to decide local issues. For, whatever the City Council's agenda--from opposing popular ballot initiatives to attempting to handcuff the LAPD--members should not hold the voters hostage to their whims. Even those who oppose Proposition 209 should be disturbed and frightened by this arrogant move to defeat in the back rooms what could not be defeated at the polls.

Don't Force Lawyers to Join the State Bar

May 21, 1996

The State Bar of California was humiliated this month when Janice Rogers Brown, the first female African American nominee to the California Supreme Court, was unanimously confirmed by the state's three-member Commission on Judicial Appointments.

The confirmation occurred despite a roundly criticized, politically motivated rating of "unqualified" by the state bar's Judicial Nominees Evaluations ("Jenny") Commission. Commission members also tried some petty, behind-the-scenes moves to disqualify Chief Justice Ronald M. George, Atty. Gen. Dan Lungren and Court of Appeals Presiding Justice Robert K. Puglia, who constitute the appointments commission, from voting. Former California Supreme Court Justice Armand Arabian described the rating of Brown as a "well-orchestrated hit," and called the Jenny Commission members a "network of agenda-driven snipers who couldn't shoot straight." In the wake of this blunder, how can the state bar become more responsive to its members and the public?

Fortunately, attorneys now have an opportunity to speak out on the problem. Thanks to a measure passed by the Legislature last year, California's lawyers will vote Friday in a plebiscite on the question of whether membership in the state bar should be mandatory.

A voluntary bar for California is long overdue. Today, a lawyer cannot practice unless he or she is a member and pays dues of almost $500 per year, highest in the nation. Much of the state bar's $50-million budget is misspent, poured into a vast bureaucracy, frittered away on expensive and unproductive projects and used to fund the bar's left-leaning public-policy agenda.

The state bar exists for the express purpose of regulating the legal profession and improving the quality of legal services in the state. However, many of the bar's activities do little to advance these goals. For instance, the bar recently spent millions on a new headquarters in expensive, downtown San Francisco, complete with highly paid executives and a staff of hundreds. The bar spends almost 30% of its budget on administrative overhead--$19 more per member than the total amount of dues paid by lawyers in New Jersey. With today's computer-based technology, this type of capital investment no longer is reasonable.

The political agenda of the bar also exceeds the purposes for which the organization exists. The Pacific Legal Foundation, a Sacramento-based public interest law firm, has been engaged in hand-to-hand combat with the state bar in court over its improper use of members' dues to fund a political agenda that many lawyers disagree with. Deborah LaFetra, an attorney with the PLF, has observed that the state bar spends members' dues to advance political causes such as commissioning studies on legalizing drug use and supporting legislation that would allow convicted murderers to go free if they could show they suffer from "battered woman syndrome." LaFetra noted that a mandatory bar allows a minority of liberal activists to speak on behalf of all of California's 119,000 active lawyers.

The attack against Justice Brown by the secretive 27-member Jenny Commission has only served to galvanize opposition to the bar's social and public-policy agenda. In recent years, the commission has sought to kill a whopping 25% of all judicial appointments by Republican governors, who have no recourse except to ignore the recommendation. The bar continues to push for aggressive (and probably illegal) affirmative action programs and employment quotas for bar positions.

To protect its turf, the state bar's board of governors is vigorously opposing the plebiscite. The board would prefer to continue the Imperial Bar, with its aloof, out-of-touch and costly leadership.

A voluntary bar isn't just good for member lawyers; it is also good for the body politic. A voluntary bar would require more responsiveness on the part of its leaders to attract and retain members. Any political activities would more accurately represent members' views, instead of falsely implying that the organization's liberal agenda reflects the views of all or even most of California's lawyers. Of the 49 other states, half have moved to implement a voluntary bar.

If lawyers take seriously their mission to reform the state bar and join the legal mainstream, they should vote yes in the plebiscite. Otherwise, a noisy, active left-wing minority will continue to dominate bar policies for years to come.