Lawyer-Legislators Reach Historic Low

We’ve all heard that last Tuesday’s election set one negative record: Lowest voter turnout ever in a California statewide election. But there was another negative record set Tuesday which has received no play, but which concerns some of us as much as the first: The number of attorneys elected to the California Legislature also hit an all-time low, probably in the history of the state.

Of course, whether a lower number of attorneys in the Legislature is a bad thing is a matter of perspective. But for those of us who believe that an in-the-trenches understanding of how the law is applied and misapplied, and the operation of our system of justice, is a good thing, the continuing decline in the number of attorneys serving in the Legislature over the years is not a good thing at all.

Although the election day totals could change the results in a couple of races once all the remaining absentee and provisional ballots are counted, the number of lawyer-lawmakers plummeted below its previous low of 20% by nearly three percentage points: 16.67%. Only 13 Assemblymembers and seven Senators are current members of the State Bar – active or inactive. The previous low was 24 set in the 2011-12 session. In contrast, during the 1971-72 session, nearly half (56, or 46.67%) of the state’s lawmakers were formally trained the law.

Session Assembly Lawyers A% Senate Lawyers S% Total Lawyers in Both Houses T%
1971-72 56 46.67%
1979-80 22 27.50% 16 40.00% 38 31.67%
1989-90 17 21.25% 19 47.50% 36 30.00%
2001-02 18 22.50% 15 37.50% 33 27.50%
2007-08 18 22.50% 10 25.00% 28 23.33%
2009-10 16 20.00% 9 22.50% 25 28.83%
2011-12 15 18.75% 9 22.50% 24 20.00%
2013-14 15 18.75% 11 27.50% 26 21.67%
2015-16 13 16.25% 7 17.50% 20 16.67%

Thirteen of the current crop of attorney lawmakers reside in the state Assembly, down from 15 in the prior session. Three of the former attorney lawmakers left of their own accord: Bob Wieckowski (D-Fremont), elected to the state Senate seat vacated by termed-out attorney Ellen Corbett; Roger Dickinson (D-Sacramento), who tried and failed to assume the seat vacated by termed out attorney and Senate President pro Tem Darrell Steinberg; and Jeff Gorell (R-Camarillo), who is locked in a tight battle for a Congressional seat.

The departure of two other Assemblymember attorneys came as more or less of a surprise, however. Less of a surprise was the defeat of Steve Fox (D-Palmdale), who was a surprise winner in 2012 in a heavily Republican district and couldn’t pull off a repeat. A greater surprise was the apparent narrow defeat of fellow first-term lawmaker Al Muratsuchi (D-Torrance), a former state deputy attorney general, by Republican investment banker David Hadley.

Three new attorney lawmakers were elected – or apparently so – November 5. Deputy district attorney David Chiu held a 3,700 vote lead over deputy city attorney David Campos in a Democrat v. Democrat, lawyer-on-lawyer battle for San Francisco’s 17th AD and appears to have emerged victorious. Republican James Gallagher, an agricultural business lawyer from Yuba City, was a runaway victor in the 3rd AD. And in one of the night’s big surprises, Republican Catharine Baker, Of Counsel to Hoge Fenton Jones & Appel, held a 3,300 vote lead in the East Bay’s 16th AD over Democratic union organizer Tim Sbranti and appeared to have victory in hand. (There was also a chance that Republican family and probate law attorney Rita Topalian could overcome a 1,400 vote election-day deficit and defeat Democratic incumbent Ian Calderon in the 57th AD, though the nature of the district renders this unlikely.)

Chiu will join Ken Cooley (Rancho Cordova), Rob Bonta (Oakland), Mark Stone (Santa Cruz), Luis Alejo (Salinas), Mike Gatto (Burbank), Ed Chau (Monterey Park), Richard Bloom (Santa Monica), and Lorena Gonzalez (San Diego) as attorney lawmakers on the Democratic side of the aisle, while Gallagher and Baker will join fellow Republicans Don Wagner (Tustin) and Brian Maienschein (San Diego). The 9-4 partisan split pretty much matches the proportional makeup of the Assembly as a whole.

While the change in attorney membership in the Assembly was slight, however, the change in the state Senate is profound. Where the upper house momentarily boasted 11 attorney members at the beginning of the last session (Juan Vargas of San Diego left almost immediately to assume a seat in Congress), there will be only seven at the start of 2015-16. And all of them will be Democrats.

In addition to Steinberg and Corbett, this election saw the departure of long-time attorney senators Lou Correa (D-Santa Ana, termed out), Ted Lieu (D-Long Beach, successful Congressional candidate), and Noreen Evans (D-Santa Rosa, returned to practice of law). Four veterans remain: Bill Monning (D-Santa Cruz), Hannah-Beth Jackson (D-Santa Barbara), Gen. Richard Roth (D-Riverside), and Marty Block (D-San Diego). They will be joined by Wieckowski, former Assembly Speaker Bob Hertzberg (D-Van Nuys) , and Ben Allen (D-Santa Monica), Of Counsel at Los Angeles’s Richardson and Patel, where his work focused on government/political affairs and litigation. Allen won his seat handily over well-known women’s rights attorney Sandra Fluke, and is the only true freshman in the group, since both Hertzberg and Wieckowski are moving to the Senate after extensive service in the Assembly.

This will be the second session in a row without a single Republican lawyer taking a seat when the Senate organizes. It is quite possible the string will be broken before more than a couple of months has passed, however, since Republican senator Mimi Walters was elected to a seat in Congress last Tuesday, and Assembly Judiciary Committee Vice-Chair Don Wagner is the early, very strong favorite to replace her in a special election that probably would be held in February or March of 2015.

Of course, the current legislative numbers are very fluid. In addition to Walters, two other sitting Senators, Democrat Mark DeSaulnier of Concord and Republican Steve Knight of Palmdale, both holding odd-numbered districts, and thus not up for election this year, were elected to Congressional seats and will have to resign from the Senate. Another Senate seat opened up just a month or so ago when Rod Wright was forced to resign upon conviction of voter fraud for designating a house he’d owned for twenty-plus years in his Senate district as his legal residence, rather than the house just outside the district in which he actually lived, though non-attorney  former Assemblymember Isadore Hall is pretty much a shoe-in to assume that seat.  Since Hall was termed-out this year, his vacated Assembly seat already has been filled.

We thus could see the turnover in as many as six Senate and Assembly seats before the new session is barely underway. Which could bring a few more lawyer-legislators, perhaps – though the prospects seem unlikely. In only three open seats in which an attorney took on a non-attorney did the attorney win, and two of those (Hertzberg and Wieckowski) involved de facto incumbents; the only truly open race won by an attorney (assuming the result holds) is Catharine Baker’s victory in the 16th AD. In contrast, in five open seat races where an attorney took on a non-attorney, the attorney lost – including some high-powered Democrat on Democrat battles (Kevin McCarty v. attorney Steve Cohn in Sacramento’s 9th AD, Tony Thurmond v. attorney Elizabeth Echols in the 16th AD, and pediatrician Richard Pan v. attorney Dickinson in Sacramento’s 6th SD). Add those to the (apparent) defeats of attorneys Fox and Muratsuchi, and it’s no wonder many attorney candidates for office don’t trumpet – and sometimes even hide – the fact. What should be a strong qualification, and even a badge of honor, now seems to be anything but.