State Bar lobbied for fee bill language on data disclosure

The State Bar lobbied for language in its annual fee bill last fall that would prevent it from having to publicly disclose demographic and other information about bar applicants sought in a long-running lawsuit, and the agency has pointed to the approved law in seeking dismissal of the case.

However, the bar also expressed some concerns to legislative staff about whether a section added to SB 387 would indeed preclude the agency from providing UCLA School of Law Professor Richard Sander and the First Amendment Coalition with the data they requested, according to emails obtained by The Daily Journal.

Sander has sought data about California bar applicants to evaluate it in light of his belief in the so-called "mismatch theory" that minorities who receive admissions preference at elite law schools do not fare as well in their studies and on the bar exam.

The bar's lobbying came almost two years after the state Supreme Court ruled the agency should disclose the requested data if it could be provided in a way that protects an individual applicant's privacy. The case was remanded to the trial court to make that determination and consider whether other interests outweighed the public's interest in favor of disclosure.

Emails sent by Jennifer Wada, the bar's Sacramento lobbyist, to legislative staff indicate the bar grew worried about the impact of the bill allowing it to collect annual fees from lawyers on the Sander case last August 28 after an Assembly committee amended SB 387.

"I'll send you a more substantive memo, but the new amendment would require disclosure of minority law student data to prove Sander's mismatch theory (affirmative action negatively impacts minorities)," Wada wrote to two state Senate staffers.

On Sept. 3, Wada forwarded to Assembly and Senate staff an email from Larry Yee, the bar's acting general counsel.

Yee had written that "categories of personal identifying info that Sander sought would include: applicants' bar exam scores, law school attended, grade point averages ?"

Fredericka McGee, the general counsel to then-Assembly Speaker Toni Atkins, wrote an email to Wada and others early on Sept. 4 with proposed amendments to the fee bill from the Office of Legislative Counsel.

A new section was added that said information submitted by an applicant for bar admission — including, but not limited to, bar exam scores, race or ethnicity, and law school grade point average — that "may identify an individual applicant, shall be confidential and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act..."

Wada replied soon after with a concern from Yee, the general counsel.

"But Larry just said the identifying information piece doesn't solve the Sander issue because it still refers to identifying info and that is the subject of the disagreement — what is identifying and what can be de-identified," Wada wrote to McGee.

Later on Sept. 4, an Assembly committee amended the bill, including adding the language relative to bar applicant data from Legislative Counsel. The phrasing in question was ultimately included in the bill Gov. Jerry Brown signed into law in October.

Earlier this year, the bar filed a motion for judgment on the pleadings, arguing SB 387 should put an end to the Sander case because the agency cannot legally provide the requested data. Sander et al. v. State Bar of California et al., 508880 (S.F. Co. Super. Ct., filed Oct. 3, 2008).

Sander and The First Amendment Coalition wrote in their opposition brief that the bar "admitted in their communications to the Legislature that SB 387 would not resolve this case."

In its reply, the bar wrote in a footnote that the lobbying emails are not legislative history and should not be considered by the court.

The bar resisted a discovery request for its communications with lawmakers, but Judge Mary E. Wiss ordered the agency to disclose them.

Sander called the bar's lobbying an attempt "to do an end-run around the judicial process" in light of the Supreme Court's 2013 ruling.

"They have shown consistent and unflagging determination not to be transparent about bar records and to minimize accountability for strong evidence of law school practices that undermine minority achievements on the bar exam," Sander said.

The bar countered that it was simply responding to worries raised by bar applicants and members about their privacy rights being violated if it complied with Sander's request.

"The State Bar's efforts are not directed at Professor Sander or the other parties in his case individually, but to address the larger concern over the privacy of this data that was raised by Professor Sander's request," the agency said.

A hearing on the bar's motion for judgment was rescheduled from Friday to April 11.

lyle_moran@dailyjournal.com