Warden v. State Bar of California
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Warden v. State Bar of California |
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
vs. THE STATE BAR OF CALIFORNIA,
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No. S060702 |
APPELLANT LEW WARDEN'S REPLY
TO RESPONDENTS' OPENING BRIEF
APPELLANT LEW WARDEN'S REPLY TO amici CURIAE BRIEF FILED BY THE
LOS ANGELES COUNTY BAR ASSOCIATION, ET AL., IN SUPPORT OF
RESPONDENT STATE BAR OF CALIFORNIA
On Review of Opinion of the Court of Appeal
First Appellate District, Division Five
Appeal From Judgment of the Superior Court
of the State of California, County of Alameda
Honorable Sandra L. Margules & James R. Lambden
| LEW WARDEN Tucson, Arizona 85749 Plaintiff and Appellant |
Neither the State Bar in the course of this record nor its amici in their supporting brief disclose any "evidence" presented to the Legislature as stated by amici at p. 6 of their brief, that the proposed legislation, with or without exemptions, would "primarily benefit attorneys in small practices". Indeed, the only reference made by amici to material submitted to the Legislature prior to enactment of Bus. & Prof. C. sec. 6070, is Robert Fellmuth's letter of May 23, 1989, to the Senate Judiciary Committee, which does not appear to refer to "attorneys in small practices".
Amici ask this Court to accept as a matter of faith that only attorneys in "small practices" are in need of further legal or ethical education, as distinguished from their brethren in "large practices", or their adversaries representing the State of California and the Federal Government, or their legislators, or the public defenders, with whom they occasionally practice as co-counsel, in competition with, or as adversaries in interest in criminal matters, or the district attorneys who always are adversaries of defense counsel, or of law professors and retired judges who may compete against them in the legal market place.
Amici's elitist point of view would have this Court accept that only attorneys in "small practices" are inattentive to legal ethics or minority rights, and that their brethren in "large practices" are not troubled by problems of malpractice, law office management, and all the litany of evils amici recite and assume MCLE cure.
Now that the elitist elements of MCLE have been judicially exposed, amici claim that LACBA "consistently opposed exemptions for any active member of the State Bar". However, amici's brief does not inform us of the views of co-amici on this point. Nor are we informed of to whom, and when, and how LACBA made its powerful voice known in support of equality under the law.
Amici omits to reference any such submissions by themselves to the Legislature. Did they make their dissenting views known to the State Bar?
Are we to suppose that the State Bar and the Legislature ignored such a powerful voice for equal and uniform application of MCLE's burdens" (Or benefits", as LACBA euphemistically refers to them in brief.) We have shown in our Reply to the State Bar's brief how readily the State Bar surrendered to Senator David Roberti. Are we then to suppose that the State Bar, in accepting these exemptions, opposed such powerful voices as amici's? If so--if the State Bar could ignore the views of such constituency--then, as we urge below, and argued to the Court of Appeal, the State Bar truly is a runaway bureaucracy which is sorely in need of review and restraint by responsible authority, whether by this Court or the California Legislature. (In the course of discovery in the trial court, the State Bar provided appellant with a bound volume of letters, some lauding the program, some opposing it, and some pleading for their own exemptions, but, unless appellant is sorely mistaken, there were no letters by amici.)
In any event, what is the powerful, overriding principle that persuades LACBA to abandon its proclaimed belief that there should be no exemptions to MCLE, its conviction that all members of the State Bar, despite the rationalizations of the State Bar and its amici to the contrary, really need and would benefit from a universally applicable CLE program? If this indeed were LACBA's point of view, it should have filed its brief in support of the Court of Appeal's opinion, and asked the Court to direct its "administrative arm" to hold hearings on just what changes in the program should be made to effectuate the program's presumed salutary purpose.
Indeed, amici may inadvertently have demonstrated the vast power of the State Bar for, unlike Glendower who professed to have the power to "call spirits from the vasty deep", amici, despite their basic convictions that the exemptions to MCLE are wrong, have refuted Hotspur's caustic question by responding to the State Bar's summons. Thus ever do bureaucracies support bureaucracies.
But, more importantly, amici's recitation of the chorus of pre-enactment support for a CLE program (LACBA Brief, pp. 5-8, 11) omits entirely any reference to the exemption issue. It would appear, by comparing the references appellant made in brief (p. 21-23), which neither the State Bar nor amici have challenged, with amici's cataloging of the dates of letters sent by various local Bar Associations to the Legislature, that even as the State Bar was summoning its legions to inundate the Legislature with support for MCLE, it was undercutting the program by acceding to Senator Roberti's demand that government lawyers be exempt.
Thus, we may legitimately ask, did the State Bar fairly advise the local Bar Associations that it was agreeing to the exemption of government lawyers? And did the local Bar Associations (and, more importantly, their membership) realize that by their letters to the Legislature they were supporting a program which allowed massive exemptions? (Not to speak of denying affected members due process of law protections.) We think not, else amici would not dare so violate truth as to proclaim that they have always opposed exemptions.
But if the State Bar publicly was saying one thing in May, 1989, when these public letters were written and these private decisions were being made, then what does this tell us about the State Bar as a responsible institution dedicated to serving the interests of the public and the lawyers of the State of California?
And, it should be remarked, this conflict between public interest and private advantage concerned only government lawyers. How did the law professors, the judges, the district attorneys, the public defenders come to achieve their favored treatment? Neither the State Bar nor amici discuss these potentially fascinating glimpses into the inner workings of the State Bar. Were these exemptions merely after-thoughts, a ploy to gloss over and obscure the favorable treatment given governmental employees? Or, as the State Bar and amici urge, were they the consequence of sober decisions made by the Legislature (and the State Bar) with due regard to the well-known intellectual superiority of these favored lawyers, who, by virtue of their status alone, know things that we ordinary lawyers are not given to know unless forced into expensive and time consuming study programs by the State Bar, on pain of being scourged from the profession as "disbarred lawyers"?
Appellant respectfully submits that amici, as well as the State Bar, while endeavoring to create grand impressions--and doubtless aware of the wisdom of Bismark's comment that the public should never be allowed to know how diplomacy or sausage is made--have been considerably less than forthcoming in the history of this strange program.
Although amici, as noted above, proclaim their support for the uniform and equal application of the burdens/benefits of MCLE, they swallow entirely the arguments made by the State Bar rationalizing the exemptions.
These contentions, rejected by the Court of Appeal, have been extensively refuted by appellant and amici supporting appellant's position in briefs already submitted to this Court and will not be repeated here.
But, we ask, what powerful, overriding principle persuades LACBA, et al., that the equal protection clauses of the California and Federal Constitutions are not applicable to this program? Apparently only the non sequitur that continuing legal education is a good thing and that the present program, with only some of its inequalities stricken, ought to be preserved by this Court. Which means that its many other inequalities, inequities, wants of due process, and excesses of power, will be allowed to remain intact and unexamined by this Court or any other objective reviewing authority.
In this regard, amici briefs filed in support of appellant's position make the excellent point, entirely overlooked by appellant, that this Court's rule-making functions ought to be kept separate from its judicial functions, in particular its function as "a court of last resort" in the protection of fundamental civil liberties. (Mark Greenberg Brief, pp. 16-19; Steven Barnett Brief, pp. 22-26; Institute for Justice Brief, p. 8.)
Indeed, appellant has not opposed MCLE in principle, although we believe most sincerely that a rational program, such as the DMV's drivers' relicensing program, should be direct and to the point, and not overburdened with bureaucratic and private interests.
But the "good" objectives of this particular program are not the issue in this case; what is at issue is the extent to which the State Bar, the Legislature, and this Court, in promulgating and enforcing this particular program, have violated the due process and equal protection clauses of the state and federal constitutions. These are the issues which appellant has fairly presented to this Court for resolution, and these are the issues that ought to be resolved constitutionally, without regard for the merits of or need for a CLE program.
Perceptions of special interest groups and legislators of what is "good" for the public have always been the camel's nose behind which massive state and federal bureaucracies have been created, and which, once created, have endured eternally, to the great and continuing burden and distress of the people of this state and nation. The banner of "consumer protection" is but the latest heralding a century of unrestrained expansion of bureaucratic power; since we are all "consumers" and most of us must work for a living and hence are providers of goods or services to the consumers, it follows that the state's power to "protect" us is limitless.
Therefore, we submit that it behooves the courts--the only agencies of government in a position to review bureaucratic excesses--to fairly and fully exercise their authority and duty to uphold our state and federal constitutions, including their due process and equal protection clauses. Aside from open revolt which recent tragedies tell us is growing alarmingly, the courts, the Bill of Rights, the 14th Amendment, and equivalent provisions in the constitutions of the several states, are the individual's only defenses against the overwhelming power of the modern state.
As we near the end of the 20th Century, it might be appropriate to reflect upon this century's single most defining characteristic. Is it global war? Genocide? Space flight? Destruction of the environment? Or is it more basic, the very structure of society itself? The pluses and the minuses catch the eye, but they all flow from the social structure, the manner in which the individual is coerced into conforming to the general will. The horrors cited above all reflect the bureaucratic nature of modern society, and, to one degree or another, were perpetrated by bureaucracy.
Appellant suggests that the defining characteristic of 20th Century society is the virtually total ascendancy of bureaucracy. Whether because of the exigencies of war, economic and other social disaster, or merely the urge to "do good", bureaucracy, both public and private, dominates virtually every aspect of the individual's life. Though an individual may retreat even to the top of a mountain in the heart of a wilderness, bureaucracy will seek him out and, with unseemly violence, impose its will upon him.
The modern bureaucracy has traveled far this past century. Max Weber's 19th Century concept of bureaucracy presupposed a formal hierarchy, written regulations, and clearly defined relations of authority and subordination, all of which made the individual "a small cog in a ceaselessly moving mechanism". (Weber, Economy and Society, III, 987-988.)
Reportedly, Weber found it
horrible to think that the world could one day be filled with nothing but those little cogs, little men clinging to little jobs and striving toward bigger ones . . . . This passion for bureaucracy . . . is enough to drive one to despair . . . . That the world should know no men but these: it is in such an evolution that we are already caught up, and the great question is therefore not how we can promote and hasten it, but what can we oppose to this machinery in order to keep a por- tion of mankind free from this parceling-out of the soul, from this supreme mastery of the bureaucratic way of life.
And Weber made these despairing comments in 1909! (Reinhard Bendix, Max Weber: An Intellectual Portrait (Garden City, N.Y., Doubleday, 1960), pp. 455-456.)
Theoretically, at least, Weber's bureaucracy, dismal though it may have been, was subject to the control of its defining authority, which, of course, in his time and place was the Kaiser--a curb of dubious utility to the German citizen. In our time and place, the ultimate authority--again in theory--is the Constitution and the law, as defined by our Legislatures and Courts. But, if Legislative enactments, idiotic or reasonable, are given presumptions of underlying wisdoms which do not exist in fact, and do not provide clear lines of administrative and judicial control over the bureaucracies they create and sustain, and grant special favors and exemptions to the very members of the society who have the economic and political power to protect less favored individuals from the burdens of such idiocies, then the bureaucracies become laws unto themselves, entirely totalitarian, and utterly hostile to the democratic process. We live today under the fiction that because we are theoretically empowered to elect our Legislators and thus express our will, and can vote them out of office if they do not respond to our will, our society therefore is not totalitarian, i.e., does not totally control our daily individual lives. But this may well be the greatest non sequitur of the 20th Century.
For if a particular bureaucracy and a Legislature can combine to impose burdens on less favored individuals and to confer benefits on more favored individuals (which, of course, is done all the time, although seldom so brazenly), and, at the same time, deny due process of law to the less favored individuals, the bureaucracy is given license to impose its unrestrained will upon those individuals adversely affected by its edicts, then the bureaucracy becomes totalitarian.
This is not to say that duly constituted and controlled bureaucracies cannot or do not serve the public well, as they provide expertise and continuity of purpose to governmental activities which might otherwise vacillate wildly with the winds of politics and public passion. Indeed, modern society could not possibly function without such organizations. However, it still remains that the power of bureaucracy is dangerous and potentially lethal to our visions of individual freedom, if not life itself. For the same bureaucratic mind that orders dumping of nuclear waste off the Farallon Islands, with unexamined deadly consequences, or orders military assaults upon recluses and religious fanatics who have asked no more than to be left alone, or orders gunfire into canisters of nuclear waste so that the deadly material might sink in the waters of the Baltic Sea, or lays waste to the largest body of fresh water in Asia, if not the world, or blathers for decades on end of the need to reform laws purporting to control contributions to our elected representatives--sound investments in political good will that go unexamined and uncurbed but undoubtedly reap rich dividends--this same state of mind underlies the enactment of the State Bar's MCLE program and the outrageous manner in which the State Bar, as shown by this record, sought to impose its will upon plaintiff and thousands of honorable members of the State Bar, a state of mind that equates its will, its personal ambitions, and its status in the bureaucracy with the public good. It is the most pernicious form of totalitarianism because it almost invariably is anonymous; the faceless, nameless bureaucrat who is only doing his duty, as God gave him the right to see his duty; the anonymous bureaucrat whom the bureaucracy's hierarchy and lawyers conceal and protect and defend with loudly proclaimed predictions of dire consequence if responsibility is admitted or judicially determined. And so the cover-up goes on, and the bureaucracies vigorously assault the courts for challenging their will. And then horrible excesses of bureaucratic power are exposed to public view, and the public is torn between loss of confidence in our judicial institutions and fear of the consequences of not bending to the bureaucratic will. This is the stuff that police states are made of, and only the courts, by steadfastly insisting on the rule of law, can stop it.
In the instant case plaintiff, inspired by such prophets as Max Weber, Joseph Conrad, and George Orwell, to some small degree has exposed the dark heart of a bureaucracy that cares not for due process of law, or equality before the law, or even for the mandates of its own creation, but instead strikes out irresponsibly at those who would question its will. And then . . . oh, "the horror, the horror!"
We submit this Court should not shrink from looking into the heart of this darkness and responding with vigor.
This case suggests that the considerable burdens which are imposed upon this Court may inhibit its ability to devote as much time as it would like to civil and criminal appeals, and that perhaps too much reliance has been placed on the ability of the Board of Governors to control this unique bureaucracy.
Extending back to the very dawn of our entering into the practice of law, and before, the California State Bar has been a leader in constitutional law, but notably not in defense of the constitution, or in securing the rights of its membership, or in protecting individual liberty. Rather the decisions of the United States Supreme Court present an unbroken line of unsuccessful attempts to defend its abuses of power.
Plaintiff respectfully submits that this state of affairs may be due, to some degree, to the excessive burdens upon this Court's time and financial resources resulting from its several obligations as the ultimate California authority in matters of law, its traditional authority to regulate California attorneys, and its responsibility to regulate the activities of the State Bar, its "administrative arm" as it has been styled.
While the Court may have been able to sustain these multiple burdens in a quieter time--burdens which may well contain elements of basic conflicts of interest--it now may be seen that the Court's judicial responsibilities alone are sufficiently daunting to give cause for relief. Perhaps it is time for the Court itself to suggest to the State Bar and the Legislature that the public and the attorneys of this state might better be served and regulated by a state agency, such as those presently controlling the affairs of physicians, dentists, real estate brokers, acupuncturists, guide dog instructors, etc., all of whom are required to participate in mandatory education programs, not to speak of the contractors, yacht brokers, cosmetologists, hair dressers, and businesses and professions too many to recount, all under the control of the legislative and executive branches of government, but with clear restraints of due process hearings, administrative review, and ultimate review by the courts. As matters now stand, the State Bar is accountable only to this Court.
We respectfully submit that such a grant of power may be more than mere mortals, even though they may for the most part be lawyers, can reasonably bear.
Also relevant are the public perceptions and the views of other bureaucracies and state-regulated businesses and professions. How must they regard these wholesale exemptions, want of due process protections to the members, and summary clandestine deprivations of one's right to earn his livelihood? Why, even high school civics students must remark on the vast disparity between what history, the Constitution, and decades of judicial precedent declare are among the most fundamental rights of free men, and the manner in which the State Bar has treated its members and argues for this Court's approval of its conduct. They may well ask that if the lawyers cannot protect themselves from such bureaucratic excesses, how much protection can the ordinary citizens expect from similar abuses of authority?
Lest it be overlooked in the welter of words and contentions and problems raised by this case, appellant repeats his prayer that the Court find and order
(1) that the State Bar's MCLE program, both as written and as applied to appellant and all other California attorneys similarly situated, violates the Due Process and Equal Protection clauses of the Federal and State Constitutions,
(2) that appellant has viable causes of action for damages against all respondents under both State tort law and the Federal Civil Rights Acts,
(3) that the State Bar be directed to send appropriate notices to each member or former member of the State Bar who has been suspended for MCLE violation, or their estates, and to all courts and bar associations and other entities to which it sent notices of suspension of appellant and other members for failure to comply with MCLE, advising that such notices were improvidently and misleadingly mingled with notices of suspensions or disbarments for disciplinary reasons or incompetency and may have been misconstrued by recipients as disbarment notices, with appropriate apologies by the Board of Governors to all affected members or their estates, and
(4) that appellant's action be remanded to the Alameda County Superior Court for further proceedings.
Respectfully submitted, October 29, 1997.
__________________________________
Lew Warden, Appellant
in Pro. Per.