Women attorney/legislators delivered for trial bar in 2019

SACRAMENTO -- In September, Sen. Jeff Stone, R-La Quinta, stood up in the California Senate to warn AB 51, a bill barring arbitration as a condition of employment, would be federal preempted and hit with litigation.

This didn't sit well with Sen. Hannah-Beth Jackson, D-Santa Barbara.

"As a lawyer myself, one who practiced law for 22 years, I find myself somewhat frustrated by hearing from the Senator whose expertise as a pharmacist I do not question, but whose legal skills I do," Jackson said.

Jackson won headlines with that barb. Less noticed in that exchange was the fact that she was serving as "floor jockey" for a bill authored by Assemblywoman Lorena Gonzalez, D-San Diego. As two of six female attorneys serving in the California Legislature, the veteran lawmakers have developed a bit of a partnership over the years, Gonzalez said.

"My bills that really that were legally-complicated, I've always had Hannah-Beth jockey them, and it is because she was an attorney," Gonzalez said. "Likewise, she would ask me to jockey a lot of her bills. She'd be like, 'Well, you already understand all of this.'"

Between the two of them, Gonzalez and Jackson have authored several laws remaking the workplace and other institutions. Examples include AB 5, which changes the rules for when an employer can declare a worker an independent contractor, and SB 826, a 2018 law requiring corporations to include women on their boards.

Perhaps with these kinds of changes in mind, the Consumer Attorneys of California could endorse as many of five or six "female trial attorneys" in Legislative races next year, according to the group's new president, Micha Star Liberty of Liberty Law in Oakland.

"A lot of the trial lawyers who are running this time are women," Liberty said. "I also would like to see more women in the legislature."

JACKSON

Much has been said about the decline in the number of California legislators with law degrees in recent years, and its alleged effects on the quality of the bills coming out of Sacramento. Compared with the 1990s and early 2000s, there are fewer legislators with law degrees.

But the 27 attorneys in office represent the highest number since 2006. The CAOC can claim credit for some of this rise.

"It's always better to have trial lawyers sitting in the Legislature because they understand the laws they are writing have to be interpreted in the courts," Liberty said. "They have exposure and experience with being in the courts and seeing how not just case law but statues are handed."

The CAOC regularly endorses non-attorneys, but it can also point to several lawyer-legislators it helped elect in recent years. These include a pair of 2016 freshman Assembly members who are eligible to serve until 2028, Ash Kalra, D-San Jose, and Eloise Gomez Reyes, D-Grand Terrace, a labor attorney who beat a far more conservative Democratic incumbent in 2016.

They also helped bring back Sen. Tom Umberg, D-Santa Ana, who returned to the Legislature in 2018 after a 12-year absence.

In between, he was a practicing attorney with Umberg Zipser LLP in Irvine, a litigation boutique involved in intellectual property, class action and commercial litigation.

"I'm still practicing law," Umberg said. "Now my partners don't believe that. If you asked them they would say I'm not practicing law anymore."

Umberg said he is very careful to avoid conflicts of interest. But he firmly believes his legal background helps him be a better lawmaker -- for instance, with a new law to speed up civil discovery.

"It's useful experience," Umberg said. "For examples SB 17, a bill I authored this year that was signed by the governor, basically came out of my practice in the last two years, concerned document production and all of the issues in civil litigation where discovery is really bogging down."

Jackson has spoken out publicly about the need for attorneys to serve in the Legislature -- for instance, in February in front of a Sacramento audience that included multiple California Supreme Court justices and other VIPs at the Legislative Judicial Summit put on by the Institute for Democracy & Justice.

"I do feel it is important to have lawyers in the Legislature," Jackson told The Daily Journal. "It's important that the people making the laws have an understanding of how that process how that process works, how they're implemented, and the importance of making they come within the confines of our constitution."

In terms of her disagreement with Stone, the pharmacist was right about one thing: a legal challenge to AB 51 quickly appeared in the form of U.S. Chamber of Commerce v. Becerra, 19CV02456 (E.D. Cal., filed Dec. 9, 2019). But Jackson said she believes the law will survive scrutiny.

She added that, in part due to her experience as an attorney, the occasional legal action against one of her bills doesn't scare her. SB 826, her bill mandating women on corporate boards, has been hit with two legal challenges: Meland v. Padilla, 19CV02288 (E.D. Cal., filed Nov. 13, 2019) and Crest v. Padilla, 19STCV27561 (L.A. Super. Ct., filed Aug. 6, 2019).

Even if SB 826 goes down, for the moment it is arguably working. A recent Clemson University study found that 24 of the 70 publicly-traded companies headquartered in California that weren't in compliance with the law have added female board members since it passed.

If Jackson is looking for an example of the advantages of being an attorney-lawmaker, she could point to herself. She's had 34 bills signed into law over the past three years, about 24 percent more than the average Democrat in office over that period.

In fact, on average, Democratic attorney legislators have been better at passing legislation than non-attorney Democratic lawmakers, and this effect appears to have held over time. While there are certainly non-attorneys who have gotten dozens of bills signed, Democratic attorneys did about 11 percent better this year than their non-attorney counterparts. During the 2017-18 legislative year, they had about a 17 percent advantage.

The four Republicans with a law degree did not see the same kinds of advantages. They passed nine bills between them in 2019, but six of those were by Assemblyman James Gallagher, R-Yuba City. In fact, Republicans without a law degree passed slightly more bills on average than those who do have a legal education.

These numbers reflect a long-term decline from the 1990s and early 2000s, when several experienced GOP attorneys roamed the halls of the Capitol.

For years, one GOP attorney-lawmaker stood out. Assemblyman Brian Maienschein, D-San Diego, has been a veritable bill passing machine with 38 measures signed over the past three years, but he changed his registration to Democrat in January. That move may have been prompted in part by his closely-fought reelection and the defeat of another well-regarded GOP attorney, Assemblywoman Catherine Baker, in 2018.

There are now so many Democratic attorneys in the California Legislature that they are barely outnumbered by 28 Republicans of any professional background. Just 14% of Republican legislators are lawyers, compared to 27% for Democrats.

Not all laws are created equal in terms of their impact on society, of course. But attorney legislators also appear to stand out under that metric. Examples from 2018 include Sen. Robert Hertzberg, D-Van Nuys with SB 10, phasing out cash bail, and Sen. Scott Wiener, D-San Francisco, with SB 35, streamlining affordable housing development.

Hertzberg is a former Assembly Speaker who joined the Senate in 2014 after a dozen years out of office. He said the overall quality of the attorneys in the Legislature has gone up since he served in the other house.

"Some people have law degrees but they haven't really had a lot of experience in the law," Hertzberg said.

In particular, he praised Wiener, Senators Bill Monning, D-Carmel, and Sen. Bob Wieckowski, D-Fremont, and Assemblyman David Chiu, D-San Francisco, as legislators with a deep understanding of particular useful areas of law.

"There are a lot of very bright lawyers, but they're not just bright but they have experience," said Hertzberg, who comes from a family of lawyers. "My dad used to say it took ten years to get a feel for the law. He wouldn't pay attention to you until you had ten years of practice."

Meanwhile, the Legislature is heading towards a major turnover among some of it's most experienced and prominent attorney-lawmakers. Jackson and Monning term out at the end of 2020. They'll be followed in 2022 by Hertzberg and Wieckowski, who has fought for legal aid funding and laws to aid debtors in legal proceedings.

A major changeover in the Assembly likely won't happen until 2024, when Gonzalez, Maienschein, Assembly Judiciary Committee Chair Mark Stone, D-Scotts Valley, and four other attorney legislators are scheduled to term out.