Partners of board members now eligible for JNC service April 15, 2002 Regular News Partners of board members now eligible for JNC service The Bar Board of Governors felt the “plum” policy should strictly apply to its nominations to judicial nominating commissions, but in the end found that it could only be used in a much more permissive manner.The standing board policy in question prohibits associates and partners of board members from applying for certain “plum” appointments, in this case, membership on JNCs. At its February meeting, board member Kelly Overstreet Johnson suggested the board drop the practice for JNC appointments. She noted under a new state law, the Bar no longer directly appoints any JNC members but nominates a slate of candidates to the governor for four of the nine seats on each commission.When the issue came to the board for final action at its March meeting, board member Hank Coxe objected.He said the total number of board members and members of their firms is around 1,500, leaving around 55,000 in-state Bar members eligible for JNC service. “I think it’s incumbent on us to go outside our firms [to find JNC applicants],” Coxe concluded.“We’ve got a lot of talent among members of this board and in their law firms,” Johnson argued in reply.She noted that members of large firms can have associates and partners in offices across the state that they neither know nor have met. And the board uses screening committees to review JNC applicants, protecting against favoritism, Johnson said.In what turned out to be a temporary action, the board voted 23-13 not to change the policy.Then on a related matter, the board did approve a policy change recommended by the Rules Committee that dropped experience requirements for JNC applicants. Committee Chair Ian Comisky said the Bar policy required five years as a lawyer to serve on a circuit JNC and 10 years for an appellate JNC. But he noted there was no similar constitutional or statutory requirement other than being a practicing attorney and residing in the territorial jurisdiction of the subject JNC.Comisky said the committee thought under existing law it was wrong for the Bar to have any stricter qualification standards than already set by state law, and the board agreed by voice vote.That caused Johnson, after the meeting, to inquire of Bar General Counsel Paul Hill how the Bar could enforce the “plum” policy since state law had no similar disqualification for associates or partners of appointing or nominating authorities for the JNCs. After some research, Hill concluded that the board could not strictly prohibit Bar members from applying merely because they are partners, although it could use that as a consideration when reviewing the applications and finally voting on nominees.He also, in a memo to the board, said the Bar probably should not continue enforcing other provisions of Standing Board Policy 1.40(c)(5) pending more formal study.Hill, Bar Executive Director John F. Harkness, Jr., and Bar President Terry Russell faxed a memo to board members explaining the matter, and asked for their reply. a 37-0 tally, board members agreed to suspend the policy to conform to state law. The Executive Committee later ratified that action.“[W]hen the eligibility requirements for a public office are already set via constitution or statute by some higher authority than the Bar, case law seems to say that no subordinate entity such as the BoG can add more qualifications to that office,” Hill said in his memo. “In my opinion, the provisions of SBP 1.40(c)(5) that render incumbent BoG members, recently departed Board members, and firm members of current Bar governors automatically ineligible for nomination to JNCs suffer from the same basic infirmities as the ‘minimum years of practice’ provisions in SBP 1.40(c)(4) — they summarily disqualify or exclude from consideration certain individuals who are otherwise eligible for this office according to superior legal authority.”The board will be making nominations for two seats on each of the 26 JNCs at its May 24 meeting. Anticipating changes might be made to SBP 1.40, no qualifications or limiting factors were included in the last notice in the Bar News seeking applicants.