JAMES W. OBRIEN et al., Petitioners, v. BILL JONES, as Secretary of State, etc., et al., Respondents, 23 Cal. 4th 40

Opinion GEORGE, C. J.— From the creation of the State Bar Court in 1988 until the present, Business and Professions Code sections 6079.1, subdivision (a), and 6086.65, subdivision (a), have provided that this court appoints all judges of the State Bar Court. Revised versions of these statutes, operative November 1, 2000, provide that of the five judges of the State Bar Court Hearing Department (hereafter Hearing Department), two judges shall be appointed by this court, one by the Governor, one by the Senate Committee on Rules, and one by the Speaker of the Assembly.

The revised statutes further provide that all three judges of the State Bar Court Review Department (hereafter Review Department) shall continue to be appointed by this court, but that the current lay judge of the Review Department shall be replaced by a judge who is a member of the State Bar. Petitioners James W. Obrien, H. Kenneth Norian, and Nancy R. Lonsdale previously were appointed by this court as judges of the State Bar Court, and currently are serving in that capacity.

On January 19, 2000, they filed this original proceeding in this court, seeking a writ of mandate, prohibition, or certiorari, or other appropriate relief, to preclude respondents Governor, Senate President Pro Tempore (who also serves as chair of the Senate Committee on Rules), and Speaker of the Assembly from appointing any judges of the State Bar Court, and to prohibit respondent Secretary of State from accepting for filing the oaths of office administered in connection with any such appointments.

Petitioners further seek a declaration that the statutory revisions described above violate the separation of powers provision of the Constitution. (Cal. Const., art. Ill, § 3.) Because uncertainty regarding the effect of the revised statutes might cast doubt upon the legitimacy of disciplinary recommendations rendered by judges appointed pursuant to those provisions, we issued an order to show cause on March 1, 2000, and established an expedited briefing and oral argument

schedule to permit the court to resolve the matter prior to the appointment of individuals who will occupy the positions currently held by judges whose terms expire on November 1, 2000. The petition is opposed collectively by the Senate President Pro Tempore and the Speaker of the Assembly (hereafter respondents). The Governor and the Secretary of State take no position on the merits.

We conclude that although this court’s inherent authority over attorney admission and discipline includes the power of this court to appoint the judges of the State Bar Court and to specify their qualifications, other appointment mechanisms specified by the Legislature are permissible so long as they are subject to sufficient judicially controlled protective measures to ensure that such appointments do not impair the court’s primary and ultimate authority over the attorney admission and discipline process.

As we shall explain, because of our continuing primary authority over the operations of the State Bar Court—including the appointment of that court’s judges—and the numerous structural and procedural safeguards, described herein, that exist both within the attorney discipline system and within the State Bar Court appointment process established by this court, we conclude that the legislation here at issue, providing that some of the hearing judges shall be appointed by the executive and legislative branches and that the lay judge of the Review Department shall be replaced with a judge who is a member of the State Bar, does not defeat or materially impair our authority over the practice of law, and thus does not violate the separation of powers provision.

I Until 1988, the State Bar’s attorney disciplinary system was operated primarily with the assistance of volunteers from local bar associations. (In re Attorney Discipline System (1998) 19 Cal.4th 582, 611 [79 Cal.Rptr.2d 836, 967 P.2d 49] (Attorney Discipline).) These volunteers and other individuals appointed by the bar’s board of governors acted as referees and made recommendations to the board, which in turn made recommendations to this court regarding the discipline of attorneys. (Bus. & Prof.

Code, § 6078; In re Rose (2000) 22 Cal.4th 430, 438 [93 Cal.Rptr.2d 298, 993 P.2d 956] (Rose).) In 1988, the Legislature directed the board to establish a State Bar Court that would assume the board’s disciplinary functions. (§ 6086.5.) The State Bar Court includes a Hearing Department and a Review Department. (§§ 6079.1, 6086.65.) Pursuant to rules promulgated by the bar, hearing judges conduct evidentiary hearings on the merits in disciplinary matters and render written decisions recommending whether attorneys should be disciplined. (Rose, supra, 22 Cal.4th at p. 439.) A decision of the Hearing Department is reviewable by the Review Department at the request of the disciplined attorney or the State Bar. (Ibid.) The Review Department independently reviews the record and may adopt findings, conclusions, and a decision or recommendation at variance with those of the hearing judge. (Cal.

Rules of Court, rule 951.5, adopted Feb. 28, 2000; see § 6086.65, subd. (d) [specifying an alternative standard of review “[ujnless otherwise provided by a rule of practice or procedure approved by the Supreme Court”].) A recommendation of suspension or disbarment, and the accompanying record of the proceedings in the State Bar Court, are transmitted to this court after the State Bar Court’s decision becomes final. (§ 6081; Rose, supra, 22 Cal.4th at p. 439.) The affected attorney or the State Bar Chief Trial Counsel may file a petition requesting that this court review, reverse, or modify the recommended discipline. (§§ 6082, 6083; rules 952(a), 952.5.) We independently examine the findings and conclusions of the State Bar Court in light of the entire record and determine whether to impose the discipline recommended by the State Bar Court. (Rose, supra, 22 Cal.4th at pp. 439, 456-457.) Pursuant to statutes and rules of court, this court has appointed the judges of the State Bar Court and has prescribed the evaluation and nomination process.

Thus, under presently applicable law, we appoint the Presiding Judge of the State Bar Court and five hearing judges for terms of six years, subject to reappointment by this court for additional six-year terms. (§ 6079.1, subd. (a).) Although this statute requires the appointment of no fewer than seven hearing judges, we have ordered that only five hearing judges be appointed, as recommended by the presiding judge, in light of the State Bar Court’s caseload.

We also appoint the Review Department, consisting of the presiding judge of the State Bar Court, one lay judge, and one attorney judge. (§ 6086.65, subd. (a).)

Section 6079.1, subdivision (c), provides that the State Bar Board of Governors shall screen and rate all applicants for appointment or reappointment, unless otherwise directed by the Supreme Court. We have chosen not to utilize the board for this purpose and instead to appoint a seven-member Applicant Evaluation and Nomination Committee to solicit, receive, screen, and evaluate all applications for appointment or reappointment to the State Bar Court after considering factors specified by statute and by rule 961(b)(2).

The committee then rates all applicants and nominates for each vacancy at least three candidates who, in the committee’s view, possess the qualifications necessary to perform the duties of a State Bar Court hearing judge or review judge. (Rule 961(a), (b).) Once appointed, State Bar Court judges are subject to discipline by this court on the same grounds as a judge of a court of record in this state. (§§ 6079.1, subd. (a), 6086.65, subd. (a); rule 961(d).) We have designated the Executive Director-Chief Counsel of the Commission on Judicial Performance to review and investigate complaints concerning the conduct of State Bar Court judges. (Rule 961(d).) If there is reasonable cause to institute formal proceedings, this court appoints active or retired judges of superior courts or Courts of Appeal as the court’s special masters to hear the matter and report to this court their findings, conclusions, and recommendations regarding discipline. (Ibid.) In 1995, this court appointed or reappointed a number of State Bar Court judges, inducting petitioners.

Some judges were appointed for terms of less than six years in order to provide for staggered terms. In addition, in 1998 and 1999, we extended the terms of some judges who had been appointed previously. (See rule 961(c) [this court may extend the term of incumbent judges and provide for staggered terms].) Petitioner Obrien is the Presiding Judge of the State Bar Court, and was appointed by this court to a six-year term beginning November 1995. Petitioner Norian, the lay judge in the Review Department, was appointed in 1989 to a six-year term and reappointed in November 1995 to a three-year term.

We subsequently extended Judge Norian’s term, which currently expires on November 1, 2000. In 1995, we appointed petitioner Lonsdale to a three-year term as a judge in the Hearing Department, and subsequently extended that term to November 1, 2000. The terms of two other hearing judges and one other review judge, who are not parties to this proceeding, also expire on November 1, 2000. Senate Bill No. 143 (1999-2000 Reg.

Sess.) (hereafter referred to as Senate Bill 143) amended sections 6079.1 and 6086.65 to specify that those sections are repealed as of November 1, 2000, and that revised versions of those sections will be operative on the same date. (Stats. 1999, ch. 221, §§ 2, 3, 5, 6.) Revised

section 6079.1, subdivision (a), provides that this court shall appoint the Presiding Judge of the State Bar Court and two of five hearing judges. Under the revised statute, the Governor, the Senate Committee on Rules, and the Speaker of the Assembly each appoints one of the three remaining hearing judges. In addition, revised

section 6086.65, subdivision (a), replaces the lay judge in the Review Department with a judge who is a member of the State Bar, although this court continues to appoint all three Review Department judges. Petitioners challenge the constitutionality of the foregoing revisions effected by Senate Bill 143. II Petitioners contend that the Legislature’s attempt to divest this court of the power to select and appoint all State Bar Court hearing judges, and its attempt to eliminate the lay judge position in the Review Department, violate the separation of powers doctrine.

Emphasizing this court’s inherent judicial authority over attorney discipline and our reliance upon the decisions and recommendations of the judges of the State Bar Court when we render disciplinary orders, petitioners assert that revised

section 6079.1 exceeds the permissive level of legislative involvement in the attorney disciplinary process and defeats or materially impairs the exercise of our authority in this area. Petitioners further contend that the decision to eliminate the lay judge position in the Review Department, as specified in revised

section 6086.65, is a public policy decision within the exclusive, inherent authority of this court, and not one that properly may be made by the Legislature. Respondents, on the other hand, maintain that these revised statutes neither usurp nor infringe upon our inherent power, because the authority to dictate the composition and membership of the State Bar Court is a legislative function, and the changes made by the statutes do not alter the function of the disciplinary system.

In evaluating the contentions of the parties, we shall consider our inherent authority over attorney admission and discipline, and the effect of the separation of powers doctrine upon legislative regulation in this area.

Article III,

section 3 of the California Constitution states: “The powers of state government are legislative, executive, and judicial.

Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” As we repeatedly have held, as the Legislature has recognized, and as respondents concede, the power to discipline licensed attorneys in this state is an expressly reserved, primary, and inherent power of this court. (Rose, supra, 22 Cal.4th at pp. 441-442; Attorney Discipline, supra, 19 Cal.4th at pp. 592-593, 601-603, and cases cited therein; § 6087.) Although the State Bar originally was created by the Legislature, the bar subsequently became—and remains—a constitutional entity within the judicial

article of the California Constitution, and its assistance to this court in the disciplinary process is an integral part of the judicial function. (Cal. Const., art.

VI, § 9; Attorney Discipline, supra, 19 Cal.4th at pp. 598-599.) “The State Bar Act did not delegate to the State Bar, the Legislature, the executive branch, or any other entity our inherent judicial authority over the discipline of attorneys.” (Attorney Discipline, supra, 19 Cal.4th at p. 601.) We retain our preexisting powers to regulate and control the attorney admission and disciplinary system, including the State Bar Court, at every step. (Id. at pp. 606-607; Brotsky v.

State Bar (1962) 57 Cal.2d 287, 300-301 [19 Cal.Rptr. 153, 368 P.2d 697, 94 A.L.R.2d 1310].) The Legislature, however, does not necessarily violate the separation of powers doctrine whenever it legislates with regard to an inherent judicial power or function. (Superior Court v.

County of Mendocino (1996) 13 Cal.4th 45, 57 [51 Cal.Rptr.2d 837, 913 P.2d 1046].) “ ‘[T]his court has respected the exercise by the Legislature, under the police power, of “a reasonable degree of regulation and control over the profession and practice of law . . .” in this state. [Citations.] This pragmatic approach is grounded in this court’s recognition that the separation of powers principle does not command “a hermetic sealing off of the three branches of Government from one another.” [Citation.]’ (Hustedt v. Workers’ Comp.

Appeals Bd. [(1981)] 30 Cal.3d 329, 337-338 [178 Cal.Rptr. 801, 636 P.2d 1139], fn. omitted; see also Santa Clara County Counsel Attys. Assn. v.

Woodside [(1994)] 7 Cal.4th 525, 543 [28 Cal.Rptr.2d 617, 869 P.2d 1142] [‘In the field of attorney-client conduct, we recognize that the judiciary and the Legislature are in some sense partners in regulation.’].)” (Attorney Discipline, supra, 19 Cal.4th at p. 602.) “[0]ur traditional respect for legislative regulation of the practice of law, based upon principles of comity and pragmatism, is not to be viewed as an abdication of our inherent responsibility and authority over the core functions of admission and discipline of attorneys.” (Attorney Discipline, supra, 19 Cal.4th at p. 603.) Thus, we have invalidated legislative enactments that materially impaired this inherent power, such as provisions authorizing another entity to discipline an attorney (Hustedt v.

Workers’ Comp. Appeals Bd., supra, 30 Cal.3d at pp. 339-341), permitting a corporation to appear in an action through an individual who is not an attorney (Merco v. Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 727-733 [147 Cal.Rptr. 631, 581 P.2d 636]), and requiring the readmission of attorneys pardoned after disbarment for felony convictions (In re Lavine (1935) 2 Cal.2d 324, 329 [41 P.2d 161, 42 P.2d 311]).

Moreover, any statute regarding the admission and discipline of attorneys is not exclusive, but is supplementary to, and in aid of, this court’s inherent authority as the final policy maker in this area. (Attorney Discipline, supra, 19 Cal.4th at pp. 602-604, 607.) The Legislature expressly has acknowledged that the disciplinary scheme and procedures set forth in the State Bar Act are not exclusive. “In their relation to the provisions of [the State Bar Act], concerning the disciplinary authority of the courts, the provisions of this

article provide a complete alternative and cumulative method of hearing and determining accusations against members of the State Bar.” (§ 6075; see also Emslie v. State Bar (1974) 11 Cal.3d 210, 224 [113 Cal.Rptr. 175, 520 P.2d 991].) Indeed, when the Legislature directed the board of governors to create a State Bar Court, it added the following language to

section 6087: “Notwithstanding any other provision of law, the Supreme Court may by rule authorize the State Bar to take any action otherwise reserved to the Supreme Court in any matter arising under this

chapter or initiated by the Supreme Court; provided, that any such action by the State Bar shall be re viewable by the Supreme Court pursuant to such rules as the Supreme Court may prescribe.” Accordingly, although in 1988 the Legislature directed the creation of the State Bar Court, and also provided for the appointment of State Bar Court judges, the decision to utilize and to rely upon the legislatively created disciplinary structure was reserved to this court.

Furthermore, although we have chosen to utilize the assistance of the State Bar Court in deciding admission and discipline matters, we also have, prescribed procedures and criteria for the evaluation, selection, and appointment of State Bar Court judges, as well as procedural rules for the State Bar Court itself, that are separate from—and sometimes different from—those in the statutory provisions. (E.g., rules 951.5, 961; see also Attorney Discipline, supra, 19 Cal.4th 582 [this court unilaterally may impose fees upon attorneys to fund the legislatively created disciplinary system when the Legislature fails to assess sufficient State Bar dues for this purpose].) Respondents therefore mischaracterize the State Bar Court to the extent they contend that, because it was legislatively created, it is not an arm of this court and its composition and administration are within the exclusive power of the Legislature.

We recently rejected a very similar contention: “[T]he State Bar is not an entity created solely by the Legislature or within the Legislature’s exclusive control, but rather is a constitutional entity subject to this court’s expressly reserved, primary, inherent authority over admission and discipline. . . .

Statutes [regarding the] disciplinary system are not exclusive—but are supplementary to, and in aid of, our inherent authority in this area.” (Attorney Discipline, supra, 19 Cal.4th at p. 607.) We further rejected an assertion that this court may utilize the State Bar’s existing disciplinary structure only if we acquiesce in all legislative determinations regarding the discipline system. (Id. at pp. 597-607.) Accordingly, contrary to the position of respondents, the Legislature does not possess the ultimate authority with regard to the structure or operations of the State Bar Court.

Rather, this court retains the ultimate authority to determine and approve the composition, procedures, and functions of the State Bar Court. In light of the foregoing well-established principles, this court’s primary, inherent power over attorney admission and discipline undoubtedly encompasses the authority to appoint the State Bar Court judges who assist this court in exercising this power. As established above, however, the circumstance that the power to appoint State Bar Court judges is an aspect of the judicial power over the practice of law does not end our inquiry.

The question is whether a legislative provision permitting the executive and legislative branches to appoint three of the five hearing judges in the State Bar Court, as specified in revised

section 6079.1, subdivision (a), necessarily results in a material impairment of this court’s inherent power over admission and discipline. As we shall explain, in light of the numerous significant safeguards and checks described below, we conclude that it does not. Petitioners maintain that our inherent authority over the admission and discipline of attorneys includes the exclusive power to appoint State Bar Court judges.

According to petitioners, we can repose confidence in the findings and recommendations of these judges only if they possess the qualifications and attributes that this court deems important and desirable. In evaluating petitioners’ contention, we first consider the necessary qualifications for State Bar Court judges established by statute and by this court’s rules. The existing and the revised versions of

section 6079.1 set forth the same qualifications for State Bar Court hearing judges. Thus, in both versions of the statute,

section 6079.1, subdivision (b), specifies that each hearing judge must have been a member of the State Bar for at least five years, must not have any record of discipline as an attorney, and must meet other requirements as established by Government Code

section 12011.5, subdivision (d). This Government Code provision, which concerns the evaluation by the State Bar of candidates for judicial office in courts of record, states: “In determining the qualifications of a candidate for judicial office, the State Bar shall consider, among other appropriate factors, his or her industry, judicial temperament, honesty, objectivity, community respect, integrity, health, ability, and legal experience.” These factors track those that this court has directed the Applicant Evaluation and Nomination Committee to consider in evaluating candidates for State Bar Court judge.

Rule 961(b)(2), promulgated by this court, states in part: “In determining the qualifications of an applicant for appointment or reappointment the committee shall consider, among other appropriate factors, the following: industry, legal and judicial experience (including prior service as a judge of the State Bar Court), judicial temperament, honesty, objectivity, community respect, integrity, and ability.” In addition, rule 961(b)(2) specifies that the committee’s recommendations for appointment “shall be made in conformity with”

section 6079.1, subdivision (b). Thus, seven of the enumerated factors in the statute and the rule are identical, the eighth is almost identical (“legal experience” versus “legal and judicial experience (including prior service as a judge of the State Bar Court)”), and the statutory provision includes an additional factor (health) that is not included in rule 961. Accordingly,

section 6079.1, subdivision (b), requires that the Governor, the Senate Committee on Rules, and the Speaker of the Assembly each shall consider applicant qualifications and attributes that are virtually identical to, and equally important as, those specified by this court.

Nevertheless, petitioners suggest that the Governor, the Senate Committee on Rules, and the Speaker of the Assembly might place importance upon different qualifications and characteristics, thus abrogating the appointment mechanism created by this court pursuant to rule 961 and undermining our ability to rely upon the decisions of their appointees.

Although the various appointing authorities might evaluate and balance these factors in a different manner, we find that this circumstance would not necessarily result in the appointment of unqualified hearing judges or preclude this court from relying upon the decisions and recommendations of hearing judges whom we do not appoint. Contrary to the assertion of petitioners, the absence of a statutory provision expressly conferring authority upon this court to ensure the appointment of qualified hearing judges does not preclude us from exercising such authority pursuant to our inherent powers and rule 961.

Despite the existence or nonexistence of statutes governing particular subjects or procedures regarding attorney admission and discipline, this court retains ultimate control over all the admission and disciplinary functions of the State Bar Court. For example, we previously decreased the number of hearing judges from seven to five, contrary to the express mandate in

section 6079.1, subdivision (a), that this court shall appoint no fewer than seven hearing judges. In addition, it is well established that in this arena we possess the authority to require more protection of the public and the profession than the Legislature has specified. (Attorney Discipline, supra, 19 Cal.4th at p. 602.) One instance of the exercise of such authority is this court’s adoption of rule 961 as an alternative to

section 6079.1, subdivision (c), which, both before and after passage of Senate Bill 143, provides that the State Bar Board of Governors shall screen and rate all applicants for appointment or reappointment as a State Bar Court judge, unless otherwise directed by the appointing authority.

In 1995, after several years of experience with the operations of the State Bar Court, we determined that, because the bar’s board of governors also oversees the prosecutorial arm of the State Bar (the Office of Trial Counsel, which is a party in all proceedings before the State Bar Court), it would be more appropriate for this court, before appointing or reappointing individuals to positions as State Bar Court judges, to rely instead upon an independent entity, appointed by this court, to rate applicants and to make recommendations regarding the appointment of individuals engaged in the adjudicatory function of the disciplinary system.

Thus, we promulgated a rule providing for the creation of the seven-member Applicant Evaluation and Nomination Committee, appointed by this court, which consists of four members of the State Bar in good standing, two retired or active judicial officers, and one public member. Two of these seven members must be present members of the State Bar’s board of governors, but neither of these two individuals may be members of the board’s discipline committee. (Rule 961(a)(1).) Although

section 6079.1, subdivision (c), as amended by Senate Bill 143, provides that the board of governors shall screen and rate all applicants and “submit its recommendations to the appointing authority, unless otherwise directed by the appointing authority,” in order to ensure the appointment of qualified judges in whom the public, the legal profession, and the judiciary may repose confidence, this court, consistent with its prior practice, shall continue to direct all applicants seeking appointment as a State Bar Court judge to be screened and evaluated by the Applicant Evaluation and Nomination Committee pursuant to rule 961 and in light of the factors specified in

section 6079.1, subdivision (b), and Government Code

section 12011.5, subdivision (d). The committee shall report in confidence its evaluations and ratings of each applicant to the respective appointing authority as well as to this court, and only those applicants shall be appointed whom the committee (or this court, upon a request for reconsideration by the appointing authority) finds qualified, in light of all of the relevant factors, to perform the duties of a State Bar Court judge.

Thus, the court can ensure that any particular applicant appointed by the executive or legislative branch has been evaluated objectively by an independent and neutral entity appointed by this court, and possesses the statutory qualifications and attributes, as well as the qualifications required by this court, that are necessary to serve as a State Bar Court judge. In this manner, we may continue to have confidence in and to rely upon the decisions of these judges.

Petitioners contend that several California decisions support the position that only a court may appoint commissioners, magistrates, special masters, referees, or other assistants upon whom the court relies in exercising judicial functions. (Millholen v. Riley (1930) 211 Cal. 29 [293 P. 69] [affirming the power of a court to appoint its employees and fix their salaries, in the absence of legislation on the subject]; People v. Hayne (1890) 83 Cal. 111 [23 P. 1] [upholding legislation conferring upon this court the authority and funds to appoint commissioners]; Tuolumne County v.

Stanislaus County (1856) 6 Cal. 440 [holding that the appointment of commissioners is a judicial function]; see also State v.

Noble (1889) 118 Ind. 350 [21 N.E. 244, 245-249] [concluding that the court’s judicial power to appoint its assistants is exclusive, and that no other branch may exercise that authority without violating the separation of powers doctrine]; In re Supreme Court Commission (1916) 100 Neb. 426 [160 N.W. 737, 738] [“Neither the Legislature nor the Governor has the right to dictate whom the court shall appoint as its referees or assistants.”].) State Bar Court judges, petitioners assert, act in a capacity similar to that of a special master or referee, and their appointment also should be an exclusively judicial function.

We agree with petitioners that the cited decisions embody principles that are fundamental to the separation of powers doctrine. Nonetheless, although a State Bar Court hearing judge may in some respects occupy a position analogous to that of a special master or referee, we believe that these decisions are distinguishable from this case on at least three grounds. First, none of the decisions involved the appointment of assistants who operate only within a discrete arena, like the attorney discipline system, in which a significant degree of legislative regulation has been found permissible.

As we have explained, California’s unique system for the admission and discipline of attorneys is in some sense a cooperative endeavor between the judiciary and the Legislature, and this court often has upheld legislative measures touching upon this arena, invalidating laws only on the rare occasions when it is determined that they materially impaired our inherent power over attorney admission and discipline. (Attorney Discipline, supra, 19 Cal.4th at pp. 602-603.) Second, the decisions upon which petitioners rely did not consider whether the executive or legislative branch may appoint judicial assistants only after they have been found to be qualified by an independent entity whose members are appointed by the judiciary.

As explained above, consistent with the procedure that this court has utilized in the past for its appointments to the State Bar Court, all applicants who seek appointment as a State Bar Court judge must be screened and evaluated by the Applicant Evaluation and Nomination Committee in light of the qualifications specified by statute and by rule of court.

Third, even within the limited realm of attorney admission and discipline, the State Bar Court hearing judges are distinguishable from the judicial assistants considered in the prior cases, because unlike special masters or referees who render findings and recommendations directly to the court, with no opportunity for an intermediate level of review or evaluation, the findings and recommendations of State Bar Court hearing judges are reviewable by this court’s appointees in the Review Department at the request of the disciplined attorney or the State Bar. (Rules Proc. of State Bar, rule 301.) As noted above, the Review Department independently reviews the record and may adopt findings, conclusions, and a decision or recommendation at variance with those of the hearing judge. (Rule 951.5; Rules Proc. of State Bar, rule 305(a).) Although in 1999 the Legislature specified a more deferential standard of review governing Review Department consideration of Hearing Department decisions (§ 6086.65, subd. (d)), we subsequently reinstated the traditional independent standard of review when we adopted rule 951.5.

The Review Department also may remand the proceeding to the Hearing Department for a new trial on specified issues or a trial de novo. (Rules Proc. of State Bar, rule 305(a).) Although the original proceeding and the proceeding on remand ordinarily are held before the same hearing judge, the Review Department may order otherwise. (Ibid.) The Review Department must accord great weight to the hearing judge’s findings of fact resolving issues involving the credibility of witnesses, but it is not bound by such findings. (Ibid.) Furthermore, as an alternative to remanding the proceeding to the Hearing Department, the Review Department may appoint a hearing judge as a referee to receive evidence and make proposed additional findings of fact. (Id., rule 306(d).) Finally, even after a State Bar Court decision is transmitted to this court, we “may remand the matter to the State Bar Court with instructions to conduct such further proceedings as [we] deem[] necessary.” (Rule 953.5.) In light of the requirement that an applicant must be found qualified by the Applicant Evaluation and Nomination Committee or by this court before he or she may be appointed as a State Bar Court hearing judge, and the broad authority of the Review Department (all of whose members we appoint) to evaluate and to accept or reject independently the findings and recommendations of hearing judges, to order additional evidentiary proceedings, and to render the State Bar Court’s ultimate findings and recommendations that are presented for this court’s consideration, we presently discern no reason why we may not continue to repose confidence in and to rely upon a State Bar Court in which some hearing judges are appointed by the executive and legislative branches pursuant to

section 6079.1. Despite the circumstance that such appointees are subject to reappointment by the same nonjudicial appointing authorities, our reserved power over the appointment (and reappointment) process and the structural and procedural safeguards in both that process and the disciplinary system guard against any risk or perception that the process may become politicized, as predicted by petitioners and amicus curiae Center for Public Interest Law. As in the past, all hearing judges shall be subject to the primary authority and supervision of this court. (See People ex rel. Lowe v. Marquette Nat. Fire Ins.

Co. (1933) 351 Ill. 516 [184 N.E. 800, 805-806] [the legislature’s designation of an officer of the executive branch to function as a judicial receiver in specified proceedings grants the officer no powers independent of the court, because his or her acts and reports are subject to the approval of the court].) Thus, unlike other instances of legislative regulation of the practice of law that we have found would materially impair our inherent authority in this area, revised

section 6079.1, subdivision (a), does not undermine our ultimate regulatory power over attorney admission and discipline. Therefore, permitting the Governor, the Senate Committee on Rules, and the Speaker of the Assembly each to appoint one hearing judge found to be qualified by the Applicant Evaluation and Nomination Committee (or by this court upon reconsideration) does not necessarily defeat or materially impair our inherent authority over the practice of law. We reach the same conclusion with regard to the elimination of the lay judge position in the Review Department, as provided in revised

section 6086.65, subdivision (a). In challenging this provision, petitioners refer to a number of public policy considerations supporting public participation in the attorney disciplinary process, such as promoting public confidence and broadening the perspective of the State Bar Court. Although we recognize that these are legitimate considerations, we conclude that our inherent authority over attorney discipline is not defeated or materially impaired by a requirement that all judges in the Review Department (who continue to be appointed by this court) should be lawyers. (Cf. Gordon v.

Justice Court (1974) 12 Cal.3d 323, 328-332 [115 Cal.Rptr. 632, 525 P.2d 72, 71 A.L.R.3d 551] [discussing disadvantages of permitting a nonattomey to act as a justice court judge in a criminal proceeding].) In this regard, we note that at least some of the benefits of a more diverse perspective formerly provided by the lay review judge may be achieved through nonjudicial appointment of some hearing judges. The circumstance that this revision emanated from the Legislature does not, in itself, render the measure violative of the separation of powers doctrine. (See Warden v.

State Bar (1999) 21 Cal.4th 628, 643-644, fn. 9 [88 Cal.Rptr.2d 283, 982 P.2d 154] [noting adoption by this court of exemptions to mandatory continuing legal education program requirements consistent with the legislative policy judgments embodied in § 6070].) In sum, our inherent, primary authority over the practice of law extends to determining the composition of the State Bar Court and appointing State Bar Court judges.

Nevertheless, this authority is not defeated or materially impaired by the replacement of the lay judge in the Review Department with an attorney review judge or by the appointment of three of the five Hearing Department judges by the executive and legislative branches, pursuant to the safeguards and procedures previously utilized by this court to ensure that State Bar Court appointees are qualified to perform the duties of review or hearing judges. Therefore, these provisions in revised sections 6079.1 and 6086.65 do not violate the separation of powers doctrine. in Revised

section 6079.1, subdivision (a), provides that two hearing judges shall be appointed by this court and that three hearing judges shall be appointed respectively by the Governor, the Senate Committee on Rules, and the Speaker of the Assembly. The statute, however, does not specify the order in which these appointing authorities will fill vacancies on the State Bar Court, or in which location their appointees will serve.

Therefore, pursuant to our inherent authority and rule 961(c), we shall issue an order, included as an appendix to this opinion, specifying procedures for the appointment of State Bar Court judges under the new law. The Hearing Department presently conducts proceedings at two locations—Los Angeles and San Francisco.

The State Bar’s Rules of Procedure govern the venue in which proceedings shall occur, and specify that the presiding judge shall provide for the overall supervision of calendar management and assignment of judges. (Rules Proc. of State Bar, rules 52-54, 1013.) Thus, the presiding judge determines how many judges sit in each venue. Presently three hearing judges sit in Los Angeles and two sit in San Francisco, and this division of resources roughly approximates the allocation of cases between the two venues. The terms of two Los Angeles hearing judges and one San Francisco hearing judge expire on November 1, 2000.

Because the two hearing judges whose terms do not expire this year were appointed by this court, we shall permit the Governor, the Senate Committee on Rules, and the Speaker of the Assembly each to fill one of the three vacancies occurring on November 1, 2000. The Governor and the Speaker of the Assembly each shall appoint a judge to serve in Los Angeles, and the Senate Committee on Rules shall appoint a judge to serve in San Francisco.

This court retains the authority to designate appointments in different locations and to direct that previously appointed judges serve in other venues as administrative needs or other circumstances change. We also shall provide for newly staggered terms for all State Bar Court judges. Presently the terms of current judges all expire in November 2000 or November 2001.

In order to provide for the orderly recruitment, evaluation, and appointment of an approximately equal number of judges every two years, the appointees of the Governor, the Senate Committee on Rules, and the Speaker of the Assembly each shall serve initial terms of six, four, and two years, respectively, subject to reappointment by the same appointing authority for a full six-year term. The terms of the judges whom we shall appoint in November 2000 and November 2001 similarly shall be staggered, as specified in the appended order.

Our order also shall amend rule 961 as necessary to implement the revised statutory scheme. As explained above, rule 961(

a) presently provides that this court appoints an Applicant Evaluation and Nomination Committee to solicit, receive, screen, and evaluate applications for appointment and/or reappointment to any appointive position of judge of the State Bar Court. The committee adopts and implements procedures for the notice of anticipated vacancies, receipt and evaluation of applications, and transmittal of its recommendations to this court.

As specified in the amended rule, and consistent with our previous practice pursuant to rule 961, we shall continue tó require all applicants for positions as a State Bar Court judge to submit applications to this court’s Applicant Evaluation and Nomination Committee and to follow the procedures adopted by that committee.

So that this court may ensure that all appointees are qualified to perform the duties of a State Bar Court judge, the committee shall submit in confidence its ratings and evaluations of all applicants for nonjudicial appointments, including the candidate’s application, to this court as well as to the nonjudicial appointing authority. Only applicants found to be qualified by the committee, or by this court upon a request for reconsideration by the appointing authority, are eligible to be appointed to a position as a State Bar Court judge. IV The petition is denied and the order to show cause is discharged.

Each party shall bear his or her own costs. Mosk, J., Baxter, J., and Chin, J., concurred. Appendix The court anticipates that, unless otherwise specified, the following order will be issued and become effective immediately upon the finality of the accompanying opinion. Order Amendments to rule 961 of the California Rules of Court, regarding State Bar Court judges, as set forth in the attachment hereto, are hereby adopted. The amendments to rule 961 shall become effective July 1, 2000. Business and Professions Code

section 6079.1, subdivision (a), operative November 1, 2000, provides that this court shall appoint two State Bar Court hearing judges, and that the Governor, the Senate Committee on Rules, and the Speaker of the Assembly each shall appoint one hearing judge. Presently three hearing judges sit in Los Angeles and two sit in San Francisco. The terms of two Los Angeles hearing judges and one San Francisco hearing judge expire on November 1, 2000. No statute or other provision specifies which appointing authorities shall appoint judges for these positions. Therefore, pursuant to this court’s inherent authority over the admission and discipline of attorneys, and rule 961(

c) of the California Rules of Court, we hereby implement Business and Professions Code

section 6079.1, subdivision (a), as follows. The appointments for the positions of the three hearing judges whose terms expire on November 1, 2000, shall be made by the Governor, the Senate Committee on Rules, and the Speaker of the Assembly. The appointees of the Governor and the Speaker of the Assembly shall serve in Los Angeles, and the appointee of the Senate Committee on Rules shall serve in San Francisco.

In order to obtain the significant benefits of staggered terms, the appointees of the Governor, the Senate Committee on Rules, and the Speaker of the Assembly shall be appointed to initial terms of six, four, and two years, respectively. Upon the expiration of these terms, appointees or reappointees to these positions shall be appointed by the respective appointing authority to full six-year terms. The terms of the Supreme Court appointees to the State Bar Court similarly shall be staggered.

The current term of the Presiding Judge of the State Bar Court expires on November 1, 2001, and the Supreme Court’s next appointee or reappointee to that position shall serve an initial term of five years, expiring on November 1, 2006. The current terms of the two other Review Department judges expire on November 1, 2000. The court’s next appointee or reappointee to the position that is now held by an attorney review judge shall serve an initial term of four years, expiring on November 1, 2004.

The court’s appointee to the position that is now held by the lay review judge shall serve an initial term of two years, expiring on November 1, 2002. The current terms of the two hearing judges whose positions will be filled by the Supreme Court expire on November 1, 2001. The court’s next appointee or reappointee to the hearing judge position in San Francisco shall serve an initial term of five years, expiring on November 1, 2006. The court’s next appointee or reappointee to the hearing judge position in Los Angeles shall serve an initial term of three years, expiring on November 1, 2004.

Upon the expiration of these terms, Supreme Court appointees or reappointees to all of these positions shall be appointed by the Supreme Court to full six-year terms. All applicants for any appointive position as a State Bar Court judge shall submit an application to the Applicant Evaluation and Nomination Committee created pursuant to rule 961, and the committee shall screen, evaluate, and rate all such applicants after considering the factors set forth in Business and Professions Code

section 6079.1, subdivision (b), Government Code

section 12011.5, subdivision (d), and rule 961(b)(3). The committee shall notify potential applicants of vacancies occurring on November 1, 2000, no later than July 15, 2000. The committee shall submit the materials specified in rule 961(

b) to this court and, as applicable, to nonjudicial appointing authorities no later than October 1, 2000. In the event the Governor, the Senate Committee on Rules, or the Speaker of the Assembly wishes to seek reconsideration of a finding by the committee that a particular applicant is unqualified, a request for reconsideration may be filed with this court no later than October 6, 2000. Only applicants found qualified by the committee or by this court, in light of the factors specified in the provisions referred to above, may be appointed to a position as a State Bar Court judge. RULE 961. STATE BAR COURT JUDGES (a) [Applicant Evaluation and Nomination Committee]

(1) The Supreme Court shall create an Applicant Evaluation and Nomination Committee (committee) to solicit, receive, screen and evaluate all applications for appointment and/or reappointment to any appointive position of judge of the State Bar Court (hearing judge, presiding judge, and review department judge, and lay judge of the Review Department).

The committee, which shall serve at the pleasure of the Supreme Court, shall consist of seven members appointed by the court of whom four shall be members of the State Bar in good standing, two shall be retired or active judicial officers, and one shall be a public member who has never been a member of the State Bar or admitted to practice before any court in the United States. Two members of the committee shall be present members of the Board of Governors of the State Bar (neither of whom shall be from the Board’s Discipline Committee).

(2) The committee shall adopt, and implement upon approval by the Supreme Court, procedures for: (

a) timely notice to potential applicants of vacancies-, which-,-in the case-of anticipated vacancies, shall mean notice shall be given no-less than nine-months before the expiration of the term; (

b) receipt of applications for appointments to those positions from both incumbents and other qualified persons; (

c) soliciting and receiving public comment; (

d) evaluation and rating of applicants,; and (

e) transmittal of its recommendations the materials specified in rule 961(

b) to the Supreme Court and, as applicable, other appointing authorities. The procedures adopted by the committee shall include provisions to ensure confidentiality comparable to those followed by the commission established pursuant to Government Code

section 12011.5 [Judicial Nominees Evaluation Commission].

(3) The Board of Governors of the State Bar, in consultation with the Supreme Court if necessary, shall provide facilities and support staff needed by the committee to carry out its obligations under this rule. (b) [Evaluations and recommendations]

(1) With regard to applicants seeking positions appointed by the Supreme Court, Tthe committee shall evaluate the qualifications of and rate all applicants and shall submit to the Supreme Court the nominations of at least three qualified candidates for each vacancy. The committee shall report in confidence to the Supreme Court its evaluation and rating of applicants recommended for appointment, and the reasons therefor, including a succinct

summary of their qualifications, at a time to be designated by the Supreme Court. The report shall include written comment received by the committee, which shall be transmitted to the Supreme Court together with the nominations.

(2) With regard to applicants seeking positions appointed by the Governor, the Senate Committee on Rules, or the Speaker of the Assembly, the committee shall evaluate the qualifications of and rate all applicants and shall submit in confidence to the Supreme Court and, as applicable, to other appointing authorities all applications for such positions together with the committee’s evaluation and rating of these applicants, including any written comments received by the committee, at a time to be designated by the Supreme Court.

(3) In determining the qualifications of an applicant for appointment or reappointment the committee shall consider, among other appropriate factors, the following: industry, legal and judicial experience (including prior service as a judge of the State Bar Court), judicial temperament, honesty, objectivity, community respect, integrity, and ability. Any evaluation or rating of an applicant and Aany recommendation for appointment or reappointment by the committee shall be made in conformity with subdivision (

b) of Business and Professions Code

section 6079.1 and in light of the factors specified in Government Code

section 12011.5, subdivision (d), and those specified in this subdivision. (33—The committee shall report-An confidence to the Supreme Court its evaluation and rating of-applicants recommended for-appointment, and the reasons--therefor, including a succinct

summary of-their- qualifications, at ■least one- hundred-twenty-days before a vacancy occurring on-t-he expiration of an incumbent judge’s term, or, in the case of an-anantiei-pated vacancy, within ninety days after-receipt of the last -timely application. The report shall include "Written comment received by-the committee which shall be transmitted to the-Supreme-Court, together with the nominations.

(4) Upon transmittal of its report to the Supreme Court, the committee shall notify any incumbent who has applied for reappointment by the Supreme Court if he or she is or is not among the applicants recommended for appointment to the new term by the committee. The Supreme Court applicable appointing authority shall notify as soon as possible an incumbent who has applied for reappointment but is not selected as soon-as possible. (c) [Appointments] Only applicants found to be qualified by the committee or by the Supreme Court may be appointed.

Upon the request of the Governor, the Senate Committee on Rules, or the Speaker of the Assembly, the Supreme Court will reconsider a finding by the committee that a particular applicant is not qualified. The Supreme Court shall make such orders as to the appointment of applicants as it deems appropriate, including extending the term of incumbent judges pending such order or providing for staggered terms. (d) [Discipline for misconduct or disability] A judge of the State Bar Court is subject to discipline or retirement on the same grounds as a judge of a court of this state.

Complaints concerning the conduct of a judge of the State Bar Court shall be addressed to the Executive Director-Chief Counsel of the Commission on Judicial Performance, who is hereby designated as the Supreme Court’s investigator for the purpose of evaluating those complaints, conducting any necessary further investigation, and determining whether formal proceedings should be instituted.

If there is reasonable cause to institute formal proceedings, the investigator shall notify the Supreme Court of that fact and shall serve as or appoint the examiner and make other appointments and arrangements necessary for the hearing. The Supreme Court shall then appoint one or more active or retired judges of superior courts or Courts of Appeal as its special masters to hear the complaint and the results of the investigation, and to report to the Supreme Court on the masters’ findings, conclusions, and recommendations as to discipline.

The procedures of the Commission on Judicial Performance shall be followed by the investigator and special masters, to the extent feasible. Procedure in the Supreme Court after a discipline recommendation is filed shall, to the extent feasible, be the same as is followed when a recommendation determination of the Commission on Judicial Performance is filed. Further undesignated statutory references are to the Business and Professions Code. Further undesignated rule references are to the California Rules of Court.

Section 6079.1, subdivision (a), operative until November 1, 2000, states: “The Supreme Court shall appoint a presiding judge of the State Bar Court and no fewer than seven hearing judges, and any additional hearing judges as may be authorized by the Legislature, to efficiently decide any and all regulatory matters pending before the Hearing Department of the State Bar Court. The presiding judge and all other judges of that department shall be appointed for a term of six years and may be reappointed for additional six-year terms. Any judge appointed under this

section shall be subject to admonition, censure, removal, or retirement by the Supreme Court upon the same grounds as provided for judges of courts of record of this state.” (Stats. 1999, ch. 221, § 2.)

Section 6086.65, subdivision (a), operative until November 1, 2000, states in relevant part: “There is a Review Department of the State Bar Court, which consists of the Presiding Judge of the State Bar Court, one Lay Judge, and one Review Department Judge. The judges of the Review Department shall be nominated, appointed, and subject to discipline as provided by subdivision (

a) of

Section 6079.1 .... [T]he Lay Judge . . . shall be a person who has never been a member of the State Bar or admitted to practice law before any court in the United States . . . .” (Stats. 1999, ch. 221, § 5.)

Section 6079.1, subdivision (a), operative November 1, 2000, states in part: “The Supreme Court shall appoint a presiding judge of the State Bar Court. In addition, five hearing judges shall be appointed, two by the Supreme Court, one by the Governor, one by the Senate Committee on Rules, and one by the Speaker of the Assembly, to efficiently decide any and all regulatory matters pending before the Hearing Department of the State Bar Court. . . .” (Stats. 1999, ch. 221, § 3.)

Section 6086.65, subdivision (a), operative November 1, 2000, states in part: “There is a Review Department of the State Bar Court, that consists of the Presiding Judge of the State Bar Court and two Review Department Judges appointed by the Supreme Court. The judges of the Review Department shall be nominated, appointed, and subject to discipline as provided by subdivision (

a) of

Section 6079.1 . . . .” (Stats. 1999, ch. 221, § 6.) Amicus curiae briefs in support of petitioners have been filed by the Center for Public Interest Law (represented by Robert C. Fellmeth, the State Bar discipline monitor from 1987 to 1992); by Attorneys Ephraim Margolin, Gerald Uelmen, and Jerome Fishkin; and by the law firm of Hansen, Boyd, Culhane & Watson, LLP, whose members include two former members of the State Bar’s board of governors. Attorney Jerome Berg has filed a brief opposing the petition. We subsequently overruled Tuolumne County v.

Stanislaus County, supra, 6 Cal. 440, to the extent it concluded that the appointment of the particular commissioners in that case—• whose sole duty as prescribed by the Legislature was to apportion debt between two counties—was a judicial function. (People v.

Provines (1868) 34 Cal. 520, 531.) As respondents observe, before the creation of the State Bar Court the Legislature had specified that some members of the bar’s disciplinary boards were to be appointed by the Governor. (See, e.g., Stats. 1975, ch. 874, § 9, p. 1954.) Other decisions have limited the power of the Legislature to interfere with the judicial branch’s ultimate authority over its judicial assistants, but these decisions also are distinguishable from the present matter.

For example, In re Edgar M. (1975) 14 Cal.3d 727, 736 [122 Cal.Rptr. 574, 537 P.2d 406], held that the findings and order of a juvenile court referee cannot become final by operation of law when the court fails to act upon an application for rehearing within the time specified by statute. Our decision states that allowing such a result would violate the restriction of the referee’s powers to subordinate judicial duties (Cal. Const., art. VI, § 22), because the referee’s decision automatically would become that of the court.

In contrast, a recommendation of a State Bar Court judge cannot become final until this court enters an order adopting the recommendation, and we very recently upheld the constitutionality of this scheme for judicial review of State Bar Court decisions. (Rose, supra, 22 Cal.4th 430.) In People v. Superior Court (Mudge) (1997) 54 Cal.App.4th 407, 411-413 [62 Cal.Rptr.2d 721], the Court of Appeal held unconstitutional a statute providing that a retired judge assigned by the Chief Justice to hear an action cannot preside if the parties stipulate that the retired judge is unqualified.

The court determined that this statute defeated or substantially impaired the Chief Justice’s express authority to assign such judges under a separate and distinct constitutional provision (Cal. Const., art. VI, § 6). In the present case, however, this court has decided that, as a general matter, its inherent constitutional power to appoint State Bar Court judges is not defeated or materially impaired by permitting other branches to exercise an appointment authority pursuant to the procedures the court has prescribed.

No other entity or party is exercising a unilateral power to defeat a previously asserted judicial power in a particular proceeding.