State Bar president-elect candidate hopeful Steve Fischer files brief with Texas Office of the Attorney General

The rules for State Bar of Texas president-elect elections violate Texas law, claims Bar director Steve Fischer in a brief to the Texas Office of the Attorney General. Fischer (pictured), a Rockport solo and president-elect candidate hopeful, filed the Oct. 15 brief after the Bar’s Oct. 2 request for an AG opinion on whether the Bar’s election rules apply to president-elect candidates nominated by petition.

Each year, the Bar's Nominations and Elections Subcommittee recommends two president-elect candidates, and the Bar's board of directors votes to nominate them. But Texas Government Code §81.019 — the State Bar Act — says any member of the Bar may become a candidate if he collects petitions signed by 5 percent of the Bar's active membership.

“Allowing the State Bar to impose additional qualifications and requirements to the clearly stated law would be letting the fox guard the henhouse,” writes Fischer, who could become the second petition candidate in State Bar history. He says he has 4,379 signatures out of his goal of 5,000. The Bar should be limited to tasks like “printing and disseminating ballots and counting votes,” Fischer continues.

Among other things, he argues in his brief that State Bar Policy Manual § 2.01.04 “adds extra qualifications to the statute” by prohibiting candidates from being a Bar board member. But Fischer alleges if those in the Texas Legislature had wanted that requirement, “they could have done so simply by inserting seven words.”

Fischer says in an interview that he doesn’t want to resign as a board member to run for president-elect because he wants to continue working on things like getting more health insurance options for lawyers. He thinks it’s wrong for the Bar to require his resignation.

“If they don’t put me on the ballot because of that, I guess I would have to resign. I guess I would have to file suit. . . . That’s a last resort, and I will try to work things out,” he says.

But Bob Black, co-chairman of the Bar’s Nominations and Elections Subcommittee, says, “The State Bar has a responsibility of running the election under the State Bar Act. It’s been delegated to us. It’s important that rules be created, and that whatever rules are created be applied to everyone fairly.”

One of those rules states “flat out” that a candidate cannot be a board member, notes Black, managing shareholder of MehaffyWeber in Beaumont.

State Bar executive director Michelle Hunter, who requested the AG opinion, says she thinks the Bar should be able to regulate petition candidates “so we can have an orderly and fair election.”

AG spokesman Tom Kelley declines comment on the brief, but he writes in an email the AG’s opinion committee, comprised of seven lawyers, receives legal briefs on about half of the opinion requests it receives. He writes, “We read them and decide how or whether their arguments should affect our opinion.”

-- Angela Morris

Comments

[Chris Peterson]

There is a reason that new rules proposals get voted down. There is a reason Steve will get to 5,000 signatures. Many lawyers, including me, are not happy with the State Bar as it presently stands. The main one is that we are down in the muck and mire of everyday law practice and we feel (rightly or wrongly) that we receive little or no help from the Bar. While I don't agree with Steve on every issue, I certainly support having a fresh voice that challenges the status quo and wants to make the Bar relevant and helpful to all attorneys across all practice areas in all sizes of firms. The smart political move by the Bar isn't to challenge Steve's candidacy but to embrace it. If they successfully force Steve to resign in order to run for President, they might as well give him the keys now because he will walk into the Presidency. They will make him a martyr with 4,000+ ticked off allies behind him.

[Michael Minns]

What do I need to do to sign Fischer's petition? I have been practicing 35 years... if Fischer gets on the ballot I will vote for him, and it will be the first time I have ever cast a vote in the State Bar Election. Two thumbs up for Fischer... Incidently, I have never met him or heard of him before this article but I find him to be the most qualified candidate in 35 years to represent the interest of small firms.

[Clay S. Conrad]

Oh no! The good-ol-boy cronyism of the State Bar is being challenged by an INSIDER... heaven forfend!

The State Bar Act is actually contradicted by the State Bar Rule. If ANY bar member can run by petition by collecting sufficient signatures, as the law requires, doesn't that NECESSARILY include all sitting directors? The membership elected Steve to be a director, and he should continue in that role as he runs for President.

I might not have voted for Steve before I read this. I certainly will now.

[Bull Market]

Steve should be put on the ballot. Denying Steve a place on the ballot suggests the candidate selection system needs fixing. And yes, this selection system is long overdue for repair.

Steve is popular because Steve understands how the Bar works, has decades of experience, networks with lawyers all over the state, and presents to everyday Members his thoughtful, innovative down-to-Earth ideas. That sounds like the makings of a good Presidential nominee of any organization.

The Nominations and Elections Subcommittee should consider-- why not be magnanimous and nominate Steve to be one of the candidates? The Board of Directors selecting Steve is kinda like Justice Roberts upholding the Affordable Care Act. Perhaps neither wants to, but do this to make a great example of even-handedness by those in power.

Dues-paying lawyers don't need the past or current leadership of the Bar to hold their hands while they cross the street to vote.

Sadly, it just appears like some with power are employing roadblock tactics just to undermine democracy-- to prevent Steve from getting on the ballot in the first place. For example, Steve was at one point prevented from offering his petition to lawyers during a break period at a CLE function. Talk about a chilling effect on speech. Now it looks like the Donkey-Kongs in power are barreling at Steve that he failed to give up his elected position as Director. The biggest obstacle of all is this 5000 signature requirement. Collectively, these tactics waddle and quack like folks with power doing whatever they can to keep power even if it undermines the sentiment of the people. We're not so naive as to imagine elected representative who ignores the wants of their constituents.

The folks with power should select Steve if for no other reason, simple to right this growing perception among the Bar's membership.

After all, the stories of closed-door and secret meetings to select who gets to be on the ballot for President rings soundly of cronyism, paternalism, and elitism. This tintinabulation so musically wells that the Subcommittee will choose from among its select Members the next nominees for President. Imagine that, Edgar Allen Poe!

Sure, technically, any Bar Member can be selected to be on the ballot, but good luck getting the closed-door subcommittee to select you over their friends. Meanwhile, it's not like we let just any old person on the ballot. But how about someone who produces thousands of approving signatures from Members? Don't tell us there's 5000 members of the closed-door subcommittee! If the subcommittee doesn't pick Steve to run, that is all the more proof that the cronies at the top talk a good game, then disregard the will of the people when making a decision.

The 4300+ lawyers who signed Steve Fischer's petition sound also for fairness and direct democratic process.

Let's see even a page of signatures from dues-paying Members outside the Bar's power structure who state Fischer should be left off the ballot.

Another real problem is that voter participation in Texas Bar elections is low. Many folks don't really feel they have a say, and the net result is these folks don't participate. That's partly because a committee of a few routinely selects two candidates who largely agree with each other on policy issues. Where's the policy contrast among the candidates?

Detaching the nomination decisions at the top by a few dues-paying masses is how some entrenched elites perpetuate the transfer of power among themselves year after year. The system is set up to make unlikely the selection of a willing candidate who is popular among the Membership, yet unpopular among the Members of the closed door committee-- where it counts.

Steve has ample qualifications like many who might wish to be selected to run. What makes Steve's situation unique is that Steve cared enough to go out, meet the people, and get literally thousands of active Texas attorney signatures. Those who feel detached from the process may finally be presented with some real contrast from which to choose.

So we're told a list of technicalities to keep Steve off the ballot.

1) This is how it's always been done... We're read a line: since there's a long-standing candidate selection process, the process must necessarily be fair and right. Implicitly, we're told that what's fair and right is that the closed-door committee knows what's best for us. As if selecting the candidates for Bar President requires national security clearance, to be decided only by the informed at the top...

2) It's as fair as the lottery-- anyone could be picked... Members are handed a pretext, that technically, any Member of the Bar can be on the ballot for President. The only thing is, if you are not someone the esteemed members of the closed-door committee want placed on the ballot, then your only other choice is to invest a year of your life standing outside courthouses to get 5000 signatures. (Technically it's 5% of the active Members who need to sign).

3) We don't just pick big-city connected types... Some who defend the status quo are quick to point to rare examples of small town attorneys or solos selected by the closed-door Committee to run. A few rarities amount to window dressing; the underlying pattern persists.

4) Anyone can run as a "write-in"... While as a matter of technicality, yeah, sure, anyone can run a write in campaign; but as a matter of practicality of human decision making, a write-in cannot realistically expect to succeed in a presidential election where the folks are presented with a convenient A or B option, each spelled out in full. Unless A dies and B is Nancy Grace's new target, the write-in has less of a shot than the Monkey who types Macbeth.

5) Anyone could get the 5000 signatures. Do you realize how hard it is to get five lawyers to sign something, much less five thousand? This base requirement is set absurdly high. The 5000 signatures requirement is designed to perpetuate and to shield from challenge the power of the Bar's Nominations and Elections Subcommittee. This whole 5000 signature requirement is outrageous and needs to be changed too. The Bar itself that changed the requirements in 1987 from 175 signatures to 5% of all Texas Licensed Attorneys including those practicing out of state and overseas, with the intent to eliminate challenges- and so far its worked. This happened because Tom Sharpe, Jr. got the 175 signatures and nearly won the election, incensing those in power.

Adding to the enormous burden of the nomination process, online petitions are invalid even though every signature is verifiable. Incredibly, we're allowed to affirm our CLE and pay dues to the State Bar online, but an online signature of a petition for State Bar candidacy is invalid. How's that for selective limitation?

The folks want Steve on the ballot. Considering the groundswell of support, the powers that be ought to select Steve to run, especially considering he has 4,300 signatures now, and will inevitably get the rest.

The best thing the Bar can do to let folks know the system is not rigged against the unconnected (or in this case, the unanointed) practitioner. Not selecting Steve and kicking him off the ballot to the curb after he actually gets the 5000 signatures would tend to imply to the general membership that there's something wrong with the process, i.e. that the process favors a coronation of any two from within the small circle of friends, and that democracy when the grassroots speak is not really for the dues-paying Members.

Steve should be placed on the ballot. Maybe Steve will win the popular vote; maybe Steve wont. Let democracy take its course.

-Bull Market

[Ima Pepper]

Fischer should be allowed to run. Too much "old guard" mentality at the State Bar and too much focus on big firm lawyers/practices (which probably make up a single digit percentage of all Texas lawyers) rather than considering what all the other lawyers in this state need. Fischer is unconventional and not a nominee from within (read: designated by the old guard) - which makes him a great candidate.