Warden v. State Bar of California
|
Warden v. State Bar of California |
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
v. THE STATE BAR OF CALIFORNIA,
|
No. S060702 |
THE STATE BAR OF CALIFORNIA'S OPENING BRIEF
From the Opinion of the Court of Appeal
First Appellate District, Division Five
On Appeal from the Judgment of the Superior Court
of the State of California, County of Alameda
Honorable James R. Lambden, and Sandra L. Margulies
| DIANE C. YU, No. 78676 LAWRENCE C. YEE, No. 84208 COLIN P. WONG, No. 130033 ROBERT M. SWEET, No. 29365 State Bar of California Office of General Counsel 555 Franklin Street San Francisco, CA 94102 Telephone: (415) 561-8200 |
JAMES M. WAGSTAFFE, No. 95535 MARK L. TUFT, No. 43146 Cooper, White & Cooper 201 California Street, 17th Floor San Francisco, CA 9411 Telephone: (415) 433-1900 |
Attorneys for Respondents
The State Bar of California
Lorna Maynard and Carole Rossi
B. Creation of the MCLE Program
C. The MCLE Requirements and the De Minimis Exemptions
D. Warden's Refusal to Comply with MCLE
E. Warden's Blunderbuss Complaint
F. The Decisions of the Lower Courts
1. The Court of Appeal Improperly Ignored the Presumption of Constitutionality
2. The Court of Appeal's Focus on the Supposed "Actual" Basis for the MCLE Rules was Erroneous
B. The MCLE Program Plainly Satisfies the Rational Basis Standard
C. The Deference That Must Be Given to This Court's Independent Policy Determinations Concerning the Structure of the MCLE Program Mandates Its Affirmance
D. The Court of Appeal Improperly Rejected Judicial Reformation of the MCLE Rule
E. The State Bar Requests Expedited Disposition of This Case
Constitutional Provisions:
Cal. Const., art. VI, § 6
Cal. Const., art. VI, § 9
Statutes:
Business and Professions Code § 6002
Business and Professions Code § 6008
Business and Professions Code § 6008.2
Business and Professions Code § 6070
California Rules of Court:
Rule 958
Minimum Continuing Legal Education Rules and Regulations of the State Bar of California:
Regs. § 2.1
Regs. § 3.2
Regs. § 3.3
Regs. § 3.4
Regs. § 6.0
Regs. § 6.1.4
Regs. § 6.1.5
Regs. § 13.2
Regs. § 14.0
Regs. § 1 5.0
There is no dispute between the parties that the purpose of the Legislation and the California Rule of Court creating the Mandatory Continuing Legal Education ("MCLE") program is to maintain and elevate the educational levels of the state's lawyers and to protect the public from professional incompetence. Here, Plaintiff and Appellant Lew Warden objects to the exemptions granted to a few members of the State Bar. Based on these narrow exemptions, which are applicable only to a fraction of the state's 123,000 practicing lawyers, the opinion of the Court of Appeal, from which this appeal follows, would eviscerate California's entire MCLE program.
As will be shown below, the Court of Appeal reached a wrong result because it departed from the established requirement of judicial restraint when analyzing statutes for constitutionality. While the Court of Appeal paid lip service to the indisputable conclusion that the "rational basis" test applies to constitutional attacks on rules regulating professional competency, it actually employed methods of interpretation reserved for "suspect class" and "fundamental rights" cases. Following the wrong "interpretative road signs," the lower court and Warden would reach the wrong constitutional destination: a wholesale rejection of rules based on otherwise de minimis and justified exemptions.
In order to strike down California's MCLE program, a court would have to ignore the long-recognized presumption of constitutionality given to statutes and rules under the rational basis test.1 A plaintiff challenging legislation of this type has the burden to convince the court that the suggested facts on which the classification is based could not reasonably be conceived to be true.2 By referencing anecdotal "evidence" and by assuming that the constitution requires uniform treatment of all lawyers, Warden mistakenly assumes unconstitutionality.
The Court of Appeal erroneously focused on the supposed "actual" basis and legislative motive for the exemptions in question. Quite to the contrary-, rational basis review mandates that a court uphold a statutory classification if there is any "conceivable" basis for the differential treatment.3 The actual motives of the legislature are irrelevant to this constitutional analysis.4 Here, the Court of Appeal majority ignored plausible purposes that could underlie these exemptions,5 and inappropriately searched for a "bad" legislative motive in derogation of traditional analysis.
To justify its ruling on exemptions that affect fewer than one percent of all California attorneys, the Court of Appeal crafted an unprecedented approach for evaluating the "rational basis" constitutionality of underinclusive rules regulating the legal profession. As will be shown below, courts routinely and properly approve "underinclusive" statutes that do not reach all members of a class or that create exemptions. Simply put, the equal protection clause does not prohibit a legislature from implementing a reform measure "one step at a time";6 or including those members of a class that plausibly are "thought most generally pertinent to the objective."7
The State Bar will also show that the Court of Appeal majority ignored the circumstances giving rise to the MCLE regulations in question. It was this Court, exercising its inherent authority to regulate the practice of law in California, that provided its input and imprimatur on the rules in question. It is error to attribute to this Court the alleged improper motivation of a few members of the Legislature while failing to give any weight to the independent policy decisions implicit in the Court's adoption of the Rule of Court that actually implemented MCLE.
Finally, the majority rejected the commonsensical approach taken by Justice Haerle in dissent, i.e., not to "throw out the baby with the bath water." There was ample authority for the court to have severed the exemptions or reformed rule 958 and Business and Professions Code § 6070 to preserve their constitutionality. See Kopp v. Fair Political Practices Commission (1995) 11 Cal.4th 607.
1. Whether the heightened level of scrutiny effectively employed by the Court of Appeal in striking down California's mandatory continuing legal education ("MCLE") requirements on equal protection grounds violates principles of judicial restraint inherent in the rational basis standard as applied by the United States and California Supreme Courts.
a. Whether the Court of Appeal improperly ignored the presumption of constitutionality given to rules regulating licensed professions under the rational basis test.
b. Whether the Court of Appeal erroneously examined what it viewed was the "actual" basis and legislative motive for the exemptions from the MCLE requirement when rational basis review mandates the court consider any "conceivable basis" underlying the classification.
c. Whether the Court of Appeal crafted an unprecedented approach for evaluating the "rational basis" constitutionality of underinclusive rules regulating the legal profession when it required exacting and empirical evidence justifying the exemption of fewer than one percent of all attorneys from legal education requirements.
2. Whether the Court of Appeal erroneously attributed to this Court the alleged improper motivation of a few members of the Legislature and failed to give any weight to the independent policy decisions implicit in this Court's adoption of California Rule of Court 958 and to its inherent authority to regulate continuing legal education.
3. Whether in refusing judicially to construe, sever or reform rule 958 and Bus. & Prof. Code § 6070 to preserve their constitutionality to the extent possible and thus maintain in effect the continuing legal education program for the benefit of the vast majority of California lawyers, their clients and the courts, the Court of Appeal misapplied existing state law, particularly this Court's recent decision in Kopp v. Fair Political Practices Commission (1995) 11 Cal.4th 607.
Defendant State Bar is a constitutional agency in the judicial branch of state government that acts as the administrative arm of the California Supreme Court in all matters relating to the admission, discipline and reinstatement of attorneys. Cal. Const., art. VI, § 6, Business and Professions Code §§ 6008, 6008.2; Saleeby v. State Bar (1985) 39 Cal.3d 547, 565. All attorneys licensed to practice law in California must be members of the State Bar. Cal. Const., art. VI, § 9; Bus. & Prof. Code § 6002; Keller v. State Bar of California (1990) 496 U.S. 1. At present, the State Bar's active membership totals approximately 123,000.
In 1989, the California Legislature adopted Business and Professions Code section 6070, initiating a mandatory continuing legal education program for California lawyers. Instead of creating a continuing education program, the statute operated conditionally: "If the California Supreme Court adopts a rule authorizing the State Bar to establish and administer a mandatory continuing legal education program, ..." then the State Bar must establish and administer it. Bus. & Prof. Code § 6070(a). The legislation further provided that if the Supreme Court ordered a mandatory continuing legal education program into existence, certain enumerated categories of attorneys would be exempt from the requirements. Bus. & Prof. Code § 6070(c). Pursuant to the legislation,8 and after two public hearings, the State Bar on July 19, 1990, filed with this Court a request for a new rule of court, authorizing the State Bar to establish a mandatory continuing legal education program.
"The State Bar shall request the California Supreme Court to adopt a rule of court authorizing the State Bar to establish and administer a mandatory continuing legal education program.... (Emphasis added.)
On December 6, 1990, this Court ordered that the California Rules of Court be amended to add rule 958. This rule mandated the State Bar to establish and administer a minimum continuing legal education program. Rule 958 required the State Bar to administer an MCLE program ensuring that each member, not exempt, complete 36 hours of legal study within a 36 month period designated by the State Bar. The rule, as well as the underlying statute (Bus. and Prof. Code § 6070(a)), provided inter alia that a member who fails to satisfy the MCLE requirement shall be enrolled as an inactive member.9
9 See section 2, Minimum Continuing Legal Education Rules and Regulations of the State Bar of California ("MCLE Regs."). At least eight hours are required to be in the areas of legal ethics and/or law practice management. Id. Up to one-half of the required hours may be satisfied by self-study. Id. State Bar official records show that only 4.4 percent of active members have been exempted from MCLE requirements.
Business and Professions Code § 6070(a) applied generally to all active members of the State Bar. Section 6070(a) called for exempting from the requirements retired judges, officers and elected officials of the State of California, and full-time professors at accredited law schools. In addition to adopting the exemptions in Section 6070(a), this Court added an exemption for full-time federal employees acting within the scope of their employment. See Rule 958(c).
These exemptions notwithstanding, the MCLE program now applies to almost all California attorneys. Indeed, the State Bar's official records show that of the total number of exemptions granted to active members in the period 1994-1996 (based on the sum of year-end figures),10 only 144 (.14%) members were exempted as retired judges, 48 (.05%) as officers and elected officials of the State, and 376 (.4%) as professors of accredited law schools. (State Bar's Pet. for Rev. fn. 15.)11 Similarly, only a small number of lawyers (1,408 to date) have been enrolled in administrative inactive status for failing to comply with the MCLE requirements. Id.
Lew Warden was an active member of the State Bar in 1993 who had vowed never to take any MCLE courses. (C.T. 248 and 311.) Under the MCLE statute and rules, Warden had to complete the required number of educational hours by January 31, 1993. (C.T. 335; MCLE Regs. § 3.4.)12
On April 23, 1993, the State Bar sent Warden a "Noncompliance Notice," warning that he had 60 days to complete the required number of credit hours (12) or he would be enrolled as an inactive member of the Bar effective July 19, 1993. (C.T. 3 51-53, 315-16, and 316; MCLE Regs. § 13.2) When Warden refused to comply, the State Bar transferred him administratively to inactive status, where he remains today.13 (C.T. 311:1-3; 372.)
Currently, Mr. Warden has also been suspended due to his delinquency in paying active membership fees totaling $2,838.00, for the years 1994-1997. Some 1,408 other attorneys currently are in administrative inactive status for failing to comply with MCLE requirements; if followed, the Court of Appeal's ruling would effectively require the State Bar to reinstate all of them.
After the State Bar denied his administrative claim for lost wages and emotional distress allegedly suffered as a result of the "unconstitutional" MCLE requirements, Warden filed a lawsuit in Alameda Superior Court against the State Bar and certain of its employees. [C.T. 4.) Warden sought compensatory and punitive damages, declaratory relief, an injunction and mandate. [C.T. 4.]
Warden's complaint included a wide variety of allegations no longer at issue in this case.14 He alleged, for example, that the MCLE program discriminated against him due to his age (73 years old), notwithstanding that the applicable regulations do not reference age anywhere. (C.T. 4:14-20; MCLE Regs. 6.0 et He also alleged that he was discriminated against because his name begins with a "W," despite the authorized phase-in of MCLE on a staggered basis. (C.T. 4:14-20; Cal. Rule of Ct. 958(b) MCLE Regs. §§ 2.1 and 3.2-3.4.) In addition, Warden alleged unconstitutional discrimination because he is a sole practitioner and he cannot benefit from in-house training available in firms. (C.T. 4:14-27, 6:15-21.) Finally, he argued that the State Bar violated his rights to procedural due process and caused him to suffer damages, even though he had received regular correspondence before his required compliance. (C.T. 245-250, 293-294, 296-25; 300, 308, 310 and 316-320.)
Finally, Warden also alleged that the MCLE statute and order deprived him of equal protection because of the program's allegedly discriminatory classifications. (C.T. 7-8.) Specifically, he alleged that the exemptions subjected him to differential treatment prohibited by the state and federal constitutions. (C.T. 6:4-14.)
The State Bar moved for summary judgment or summary adjudication of issues. (C.T. 26-5 1.) After a hearing, the court granted summary adjudication of all issues the State Bar placed before it and, thus, disposed of all aspects of Warden's complaint. After filing an unsuccessful motion for reconsideration and a motion for new trial, Warden filed a notice of appeal.
On March 13, 1997, the Court of Appeal, First District, Division Five, filed its opinion in Warden v. State Bar of California, No. A072485, striking down on federal and state constitutional equal protection grounds the State Bar of California's five-year-old MCLE program15 that currently requires approximately 95 percent of all active members to take 36 hours of approved course work every three years. The Court of Appeal concluded that rule 958 and Business and Professions Code § 6070 authorizing the program were fatally underinclusive because of exemptions from MCLE provided for "[I] retired judges, [2] officers and elected officials of the State of California, and [3] full-time professors at [accredited] law schools", which three exemptions encompass 0.2 percent of all active members.16 A majority of the Court also concluded that judicial reformation to eliminate the "offending exemptions" was inappropriate, and that the MCLE program had to be invalidated in its entirety.17
The Court of Appeal thus reversed the summary judgment in favor of the defendants. While giving lip service to the rational basis test, the Court of Appeal effectively employed heightened scrutiny to conclude that three of the MCLE exemptions in question were "irrational" and therefore violated the equal protection rights of all non-exempt members. In this regard, the Court of Appeal analyzed the supposed "improper" and "illicit" motives of the Legislature.
The Court of Appeal majority also refused to give rule 958 and section 6070 a saving construction or to sever or reform their allegedly unconstitutional exemption provisions, indicating that it "could not say with confidence" that the Legislature would prefer retention of the MCLE program without these exemptions to complete judicial invalidation. (Opinion at pp. 11, 15, 20) In its rejection of judicial reformation as a remedy to avoid destruction of the entire program, the majority failed to consider policy decisions concerning the underlying value of MCLE (with or without exemptions) that may have been made by this Court when it adopted rule 958 under its plenary authority over the practice of law. To the contrary, the majority assumed that this Court's promulgation of Rule 958 was simply a reflexive response to a legislative mandate, that the Court made no policy judgments in this connection, and that the Court had no independent reason or inherent authority to initiate, modify, or continue MCLE. (Opinion at pp. 3 17)
The Court of Appeal majority also vehemently attacked the wisdom of MCLE. Indeed, it saw MCLE as a "burden" on most California lawyers and suggested that all attorneys were compelled to take courses of questionable relevancy, such as "'stress reduction' through chanting and meditation" and "sports nutrition"'. (Opinion at p. 9, fn. 10, 13-14; 23-24, fn. 19, 29, fn. 23) While admitting that "some courses" did contribute to currency in the law, the court questioned whether clients really benefited because they bore the "ultimate burden of paying for [the courses] through legal fees charged by lawyers required to attend."
Accordingly, the Court of Appeal ordered Warden reinstated with no mention of whether he must pay his delinquent membership fees. This Court granted the State Bar's Petition for Review on May 5, 1997.
The standards under which a court must evaluate an equal protection challenge have been set forth many times by the United States Supreme Court: "a statutory classication that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide rational basis for the classification." Federal Communications Comm, v. Beach Communications, Inc. (1993) 508 U.S. 307, 313. Courts are compelled under "rational basis" review to accept a classification "even when there is an imperfect fit between means and ends" and the statute will not fail simply because it is "not made with mathematical nicety or because in practice it results in some inequality." Heller v. Doe (1993) 509 U.S. 312, 321; see also Lindsley v. Natural Carbonic Gas Co. (1911) 220 U.S. 61, 78.
There is no genuine dispute in this case that the rational basis test governs the MCLE program. (Opinion at pp. 6, 8, 9) There is no "fundamental" right to practice law and lawyers do not constitute a suspect class. Giannini v. Real (9th Cir. 1990) 911 F.2d 354, 358, cert. denied, 498 U.S. 1012; Lupert v. California State Bar, supra. 761 F.2d at 1327-28.18
At the outset, it is an inveterate principle that statutes reviewed under the rational basis test are accorded a strong presumption of constitutionality. Heller v, Doe; supra: Werner v. Southern Cal, etc, Newspapers (1950) 35 Cal.2d 121, 13 1. Those attacking the rationality of a legislative choice have the burden to negate every conceivable basis which might support it and the government is not required to articulate any reasons for the distinctions. "On rational basis review, legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data." Federal Communications Comm. v. Beach Communications, Inc., supra, 508 U.S. at 315.19
The presumption of validity is not merely a rule of evidence; it is a rule of constitutional law founded on the doctrine of separation of powers. City of New Orleans v. Dukes (1976) 427 U.S. 297, 303; Werner v. Southern Cal. etc. Newspapers, supra; Verreos v. City and County of San Francisco (1976) 63 Cal.App.3d 86. The heavy burden of demonstrating the non-existence of facts necessary to overcome the presumption of validity of a statutory classification rests squarely with Mr. Warden in this case. See Heller v. Doe, supra, Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 160.
The Court of Appeal correctly concluded that the rational basis test governs this case. (Opinion at pp. 6, 8, 9) However, the majority then proceeded erroneously to apply a de facto heightened scrutiny while imposing on the State Bar the evidentiary obligation to support the exemptions in question.20 This methodology preordained a flawed. result.
There can be no mistake that the Court of Appeal majority ignored the presumption of constitutionality and mistakenly imposed an evidentiary burden on the State Bar to justify the exemptions to the MCLE rules. While acknowledging the assumedly "worthy goals" of requiring continuing legal education, the Court of Appeal opined there were no proven "explanations" for the exemptions (Opinion at pp. 10, I 1), chided the State Bar for having failed to present "statistical evidence" to support the exemptions (Opinion at p. 14) and emphasized there was "an absence of support" in the record for the proffered explanations. (Opinion at p. 15) Most tellingly, the panel majority relied on the State Bar's failure to submit an explanatory declaration under penalty of perjury. (Opinion at p. 16)
The methodology employed by the Court of Appeal is more consistent with the heightened scrutiny given suspect classifications or statutes infringing fundamental rights. Heller v. Doe (1993) 509 U.S. 312, 319. If this exacting standard is applied to rational basis cases, it would radically change the manner in which California's courts review legislative line-drawing efforts -- a result with devastating consequences for all sorts of legislation including specialized tort reform, professional competence standards and tax classifications. Rather, and as will be explained below, a statutory classification or exemption must be upheld unless it is irrational under any conceivable set of facts.
Under the rational basis test, a statutory classification must be upheld if there is any reasonably conceivable state of facts to support the rule. Mathews v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 7l9, 739. "Legislative choice is not subject to courtroom fact finding and may be based on rational speculation unsupported by evidence or empirical data." Federal Communications Comm, v. Beach Communications. Inc. (1993) 508 U. S. 307, 314; Vance v. Bradley, supra, 440 U.S. 93, 111.
Where there are any conceivable justifications for statutory line-drawing, "it is, of course, constitutionally irrelevant whether the reasoning in fact underlay the legislative decision." United States Railroad Bd. v. Fritz (1980) 449 U.S. 166, 179. The court must consider any conceivable basis whether or not it "actually motivated the legislature." Federal Communications Comm, v. Beach Communications, Inc., supra; American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 372.
The Court of Appeal majority failed to apply these rules of constitutional interpretation, fixating instead on the supposed It actual" basis for the MCLE program. The lower court limited its inquiry to the supposed legislative history21 and rejected proffered alternative explanations as lacking in "evidentiary support." In derogation of established rules, the Court of Appeal rejected the conceivable bases proffered by the State Bar as "after-the-fact rationalizations." (Opinion at p. 16) As will be shown below, these exemptions are supported by highly conceivable and logical justifications that must be accepted.
If this Court were to accept the Court of Appeal's expansion of the rational basis test, this would create a dangerous precedent. To focus attention on the Legislature's supposed "actual" motive in every case would lead to an unwarranted interference with the legislative process. Courts have uniformly eschewed this approach because it is neither possible nor advisable to search for the motive behind legislation. Werner v. Southern Cal, etc, Newspapers, supra, 35 Cal.2d at 129 (court "cannot undertake a search for motive in testing constitutionality"); United States v. O'Brien (1968) 391 U.S. 367, 383 (court should not strike down a statute on the basis of an allegedly illicit legislative motive). It may be tempting for a court to second-guess the wisdom of legislation or to criticize the political motives of individual legislators. However, it is constitutionally improper for a court to search for- such motives and to ignore other conceivable purposes for a statute in question.
Warden argues that the limited exemptions in question rendered the entire MCLE program "underinclusive" in violation of equal protection. However, this effort to achieve mathematical nicety with respect to regulatory line-drawing is unprecedented and would undermine a vast array of state and federal legislation.
A governing body may recognize varying degrees of harm and confine the regulation to those classes of persons for which it deems the need for regulation more imperative. American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 371; Werner v. Southern Cal. etc, Newspapers (1950) 35 Cal.2d 121, 132-33. "Defining the class of persons subject to a regulatory requirement ... inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line, and the fact that the line might have been drawn differently at some point is a matter for legislative, rather than judicial consideration." Federal Communications Comm. v. Beach Communications, Inc. (1993) 508 U.S. 307, 315-16.
Nor does the equal protection clause prohibit the legislature from attacking a problem piecemeal, "addressing itself to the phase of the problem which seems most acute to the legislative mind." Williamson v. Lee Optical Co. (1955) 348 U.S. 483, 489; City of New Orleans v. Dukes (1976) 427 U.S. 317, 325. The dictates of equal protection do not require the legislature to regulate all or none. Leavenworth Properties v. City and County of San Francisco (1987) 189 Cal.App.3d 986, 992. In this case, the Court of Appeal applied a more far-reaching and less deferential standard for reviewing underinclusiveness regulations.22 If it is followed, the court's majority opinion would establish a rule contrary to an unbroken line of cases in federal and state courts upholding underinclusive regulations when attacked as violative of equal protection.
Courts have uniformly rejected challenges to statutes as underinclusive on less substantial grounds than those presented here. Federal Communications Comm. v. Beach Communications, Inc., supra (Congress exempted from otherwise applicable regulation of cable facilities that served buildings under common ownership and management as long as they provided services without using public rights-of-way); Heller v. Doe, supra (requiring higher burden of proof for involuntary commitment of mentally ill persons and excluding mentally retarded persons from same requirement); Williamson v. Lee Optical Co., supra (imposing restriction on opticians but not optometrists or ophthalmologists); Railway Express Agency v. New York (1949) 336 U.S. 106 (prohibiting advertising on all vehicles except vehicles carrying on business of owner); American Bank & Trust Co. v. Community Hospital, supra (applying periodic payment procedure only to medical malpractice cases); Corey v. Shierloh, supra (exempting furnishers of alcohol from liability except licensed sellers to intoxicated minors); Mathews v. Workmen's Comp. Appeals Bd., supra (barring employees from compensation benefits if they are initial aggressors, but not applying bar to service workers or enrollees in economic opportunity programs); Werner v. Southern Cal. etc. Newspapers, supra (applying retraction statute to newspapers and not other periodicals).
The line-drawing in this case is less substantial and more plausible than in the foregoing cases that have taken a deferential approach when viewing such constitutional attacks. At bottom, these other court decisions recognized what was overlooked in the decision below: "Equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." Federal Communications Comm. v. Beach Communications, Inc., supra, 508 US. at 309. To allow the striking down of the entire MCLE program due to these minor exemptions would open the door to a new, more penetrating equal protection jurisprudence that will require courts to judge the wisdom of a whole variety of legislative procedures. This approach is unsupported by existing law.
There is no genuine dispute that MCLE, itself, serves a legitimate state purpose -- to wit, protecting the public by ensuring that lawyers continue to be fit and qualified to practice law. This interest obviously is legitimate and courts have routinely so held. See Lupert v. California State Bar (9th Cir. 1985) 761 F.2d 1325, 1327-28; People v. Ngo (1996) 14 Cal.4th 30; Verner v. State of Colorado (D. Colo. 1982) 533 F.Supp. 1109, 1118, aff'd (10th Cir. 1983) 716 F.2d. 1352, 1353.
It would appear that Warden is arguing that MCLE provides no such benefits, relying on isolated examples of particular courses supposedly lacking in value.23 As explained above, however, it is inappropriate under a rational basis analysis to focus on such isolated "evidence." For if legislative and regulatory requirements were subject to such judicial activism based on something less than a one-hundred percent satisfaction of their objectives, the courts would be inundated with such constitutional attacks. The reassuring news is that this is not the governing standard of review.24
At bottom, Warden argues that he is being denied equal protection because the Legislature and this Court exempted from MCLE certain members who are retired judges, officers and elected officials of the State of California, full-time professors at law schools accredited by the State Bar or the ABA, and full-time employees of the State of California and the United States government. (C.T. 6:4-14.) However, this argument fundamentally ignores the rule that a legislative classification is rational if any set of facts reasonably can be conceived that would sustain it. Graham v. Hopkins (1993) 13 Cal.App.4th 1483, 1490.
The MCLE requirements are intended to focus in the first instance on those attorneys who are most likely to engage in representing clients in private practice. The categories of exemptions therefore have in common the fact that as discrete groups the exempted attorneys are less likely to engage in private practice or handle client finds than other attorneys in general. The Legislature in attempting to improve the overall competence of attorneys is not required to address the entire problem at once but is allowed to address the problem in steps. Moreover, the Legislature may apply the requirement only to the group of lawyers it thought most generally pertinent to its objective. Vance v. Bradley, supra, 440 U.S. at 109.
Thus, there are at least two conceivable justifications that reasonably support the narrow exemptions to MCLE. First, the Legislature and this Court conceivably could have concluded that law professors, retired judges and legislators generally are less likely as a group to represent clients on a full or part-time basis -- thus, rendering MCLE of a less serious need than for all other attorneys. In contrast to the Court of Appeal's analysis, that this plausible explanation may not have been set forth expressly in the legislative history or even may have been without empirical support is constitutionally irrelevant.25 All that matters is that this rationale, based as it is on logic and common sense, "is at least debatable." Minnesota v. Clover Leaf Creamery Co. (1981) 449 U.S. 456, 464.
Second, it is reasonable to assume that the exempted classes may be better trained and experienced as a group and, thus, less in need of MCLE. For example, full-time law professors of accredited law schools plainly could be viewed as more knowledgeable concerning legal education topics without separate MCLE. Similarly, retired judges spent a career studying and applying the law and continue to stay abreast of legal developments in their roles as mediators and private judges. Furthermore, it is common knowledge that government attorneys have extensive in-house and associational continuing education programs and subject themselves to peer review and promotion examination. By the same token, legislators spend their time analyzing legal and statutory developments -- both of which conceivably could support an exemption from MCLE.26
It is likely that Warden will argue that some of these exemptions were "politically-inspired" and that they somehow detract from the goal of MCLE for all practicing lawyers. However, as shown below, by relying on these inapposite sound bites, Warden reaches the wrong conclusion. These arguments were and are properly left for consideration by the Legislature and this Court.
Even if one could properly impute an invidious motive to the Legislature so as to make its enactment of both MCLE and the exemptions in section 6070 an irrational and arbitrary abuse of power, the same cannot be said of this Court's adoption of rule 958. Even though the Court of Appeal inappropriately concluded that the "only explanation" for the exemptions is Legislative cronyism to protect "a relatively small number of powerful and politically well connected" favorites from being "dragged into the classroom" (Opinion at pp. 11, 13-14), it could not come to the same conclusion regarding this Court's motive in the inclusion of the exemptions in rule 958.
The Court of Appeal attempted to avoid this fatal flaw in its analysis by concluding that this Court merely rubber-stamped the Legislature's statutory exemptions. The Court of Appeal mistakenly stated that in enacting rule 958, the California Supreme Court was "required to conform, inter alia, with the statutory exemption requirements of section 6070." (Opinion at p. 3, italics added) By quoting selectively from this Court's holding in State Bar of California v. Superior Court (1929) 207 Cal. 323, 331, "'[T]he membership, character and conduct of those entering and. engaging in the legal profession have long been regarded as the proper subject of legislative regulation and control. . . . "' (Opinion at p. 3, fn. 4, italics added), the court impliedly overstated the authority of the Legislature.
To the contrary, in California, "the power to regulate the practice of law, including the power to admit and to discipline attorneys, has long been recognized to be among the inherent powers of the [California Constitution] article VI courts." Hustedt v. Workers' Comp, Appeals Bd. (1981) 30 Cal.3d 329, 336; Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 542-43.27 The power of regulation has meant that the courts are vested with the exclusive power to control who is entitled to practice law. Santa Clara County Counsel Attys. Assn. v. Woodside, supra, 7 Cal.4th at 543. "Historically, the courts, alone, have controlled admission, discipline and disbarment of persons entitled to practice before them. [Citations.]" Brotsky v. State Bar (1962) 57 Cal.2d 287, 300 (italics added). Indeed, every state in the United States recognizes that the power to regulate lawyers and the practice of law rests in the judiciary. Hustedt v. Workers' Comp. Appeals Bd., supra, 30 Cal.3d at 336-337.
Nevertheless, the California Supreme 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. Hustedt v. Workers' Comp. Appeals Bd., supra, 30 Cal.3d at 337, quoting State Bar of Califomia v. Superior Court, supra, 207 Cal. at 331. The Court of Appeal erroneously omitted mentioning this most critical qualifier of a reasonable degree in its quotation of State Bar of California v. Superior Court. Thus, while this Court has recognized the "existence of common boundaries between the ... zones of power" of the branches of state government, the Court will nevertheless assess legislative measures affecting the practice of law and determine whether the Legislature has "overreached its traditionally recognized authority to regulate the legal profession." Hustedt v. Workers' Comp. Appeals Bd., supra, 30 Cal.3d at 337; See also Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 728 (reaffirming power of court to strike down "legislative encroachment" on inherent power of the court to regulate practice of law).
Contrary to the Court of Appeal's erroneous conclusion in this case, the Supreme Court was not "required to conform" rule 958 to the requirements in section 6070. Although the Court will give respect to the Legislature's exercise of its police power, the Court "must also heed its primary policy-making role and its responsibility in matters concerning the practice of law." Hustedt v. Workers' Comp. Bd., supra, 30 Cal.3d 329, 340, italics added. "[W]hen the matter at issue involves minimum standards for engaging in the practice of law, it is this court and not the Legislature which is final policy maker." Merco Constr. Engineers, Inc. v. Municipal Court, supra, 21 Cal.3d at 73 1.
The Legislature's enactment of section 6070 comprehended this primary role of the Supreme Court. The statute required the State Bar to request the Court to adopt a rule of court authorizing the bar to establish and administer a continuing legal education program. Bus. & Prof. Code § 6070(a). Indeed, the statute explicitly conditioned the State Bar's ability to establish MCLE on this Court's approval of such a requirement. "If the California Supreme Court adopts a rule authorizing the State Bar to establish and administer the program, the State Bar shall establish and administer a mandatory continuing legal education program commencing on or after January 1, 1991" Id; see People v. Ngo (1996) 14 Cal.4th 30, 33 ("MCLE is a creature of statute and rule."(italics added)).
In its enactment of rule 958, the Supreme Court sought to maintain and enhance the competence of lawyers in the state. In incorporating the exemptions under section 6070 and adding one for federal employees,28 the Court found nothing inconsistent between the MCLE goals and the exemptions, which focused the goal of maintaining and enhancing legal education on lawyers in private practice who, because of their regular and direct representation of clients, present greater likelihood of harm to the public due to incompetence.
This Court's exercise of its inherent power to regulate lawyers and its independent adoption of the MCLE program in question, compel rejection of this attack on legislative motive. Mr. Warden's primary basis for attacking the exemptions is a visceral belief they were politically motivated and, thus, irrational. In view of the actual adoption and approval of MCLE by this Court, this attack is meritless.
In refusing judicially to construe, sever or reform rule 958 and section 6070 to preserve their constitutionality and thus maintain in effect the MCLE program for the benefit of the vast majority of California's practicing lawyers, their clients and the courts, the Court of Appeal majority misread and misapplied this Court's recent decision in Kopp v. Fair Political Practices Commission, supra, 11 Cal.4th 607 ("Kopp"). Moreover, this Court's power to reform its own rule is uninhibited and provides the mechanism to eliminate this or any purported "unconstitutionality" arising from various applications of the MCLE program.
In Kopp, this Court held that a court may reform a statute to avoid alleged constitutional infirmities, including alleged underinclusive classifications violating equal protection, if it can conclude with confidence that (i) it is possible to reform the statute in a manner that closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred such a reformed version of the statute to invalidation of the statute. (Opinion at pp. 7-18) See Kopp, 11 Cal.4th at 615, 626, 649-61 (lead opinion of Lucas, C.J., Werdegar, J., concurring); 11 Cal.4th at 674-78 (separate concurring opinion of Werdegar, J.); 11 Cal.4th at 684-87 (concurring and dissenting opinion of Baxter, J., Arabian, J., and George, J. concurring.).
In purporting to apply the Kopp rule, the Court of Appeal majority emphasized that in its view judicial reformation was a "comparatively drastic alternative, to be invoked sparingly" (quoting Arp v. Worker's Comp. Appeals Bd. (1977) 19 Cal.3d 395, 497) and that "close and careful [judicial] scrutiny must be exercised in determining whether the body enacting unconstitutional legislation would have preferred "a given reformed construction to invalidation" (quoting 11 Cal.4th at 66 1, fn. 58). (Opinion at pp. 17, 22) The Court of Appeal thus approached the question of judicial reformation from an unduly negative perspective, apparently rejecting any assumption that extension should be the preferred remedy where it would accommodate as fully as possible the policies expressed in the statutory scheme. (Opinion at p. 22) Compare Heckler v. Mathews (1984) 465 U.S. 728, 739, fn. 5, ("ordinarily 'extension, rather than nullification, is the proper course"'); Califano v. Wescott (1979) 443 U.S. 76, 8990 (same); see also Kopp, 11 Cal.4th at 635, quoting this language from Heckler v. Mathews with apparent approval.
Without giving the parties an opportunity to reply, the Court of Appeal majority conducted its own review of the legislative history of Senate Bill 905 and announced at oral argument and later in its opinion that ". . . the only explanation [it had found] for the exemption accorded to state legislators as 'elected officials' . . . is an indication that the sponsor of the legislation was required to add an exemption applicable to legislators because of the opposition thereto from legislators who 'didn't want to be dragged into a classroom."' (Opinion at p. 11) As evidence of this, the Court of Appeal majority cited to "Sen. Bill No. 905 (1989-1990 Reg. Sess.) (Bill 905) Off. Local Gov. Affairs, Enrolled Bill Rep. (Sept. 25, 1989) p. 2)". However, this is not a document produced by the Legislature itself, but a subsequent, then private enrolled bill report to Governor Deukmejian by a member of his staff repeating the hearsay statements of a member of the Senate Judiciary Committee staff about alleged oral statements by an unknown number of unidentified attorney-members of the Legislature concerning their motives.29
Not only did the Court of Appeal erroneously rely on an inadmissible report of the alleged cynical and self-serving motives of a few attorney members of the Legislature, but it effectively attributed such motives to the entire Legislature, most of whose members were not attorneys who could be "dragged back into the classroom" as the result of the passage of Senate Bill 905 in any event. (Conc. and dis. opn. Haerle. J., at p. 5 [citing Sen. Final Hist. 1989-1990 Reg. Sess., p. 630]). The Court of Appeal majority also emphasized that as originally introduced by Senator Davis, Senate Bill 905 would have required all active members to take MCLE30; and it concluded that because the exemptions in questions were added during the subsequent legislative hearing process, the Legislature thereby "clearly articulated a policy judgment" that would be frustrated rather than effectuated by judicial reformation of the statute to "excise" such exemptions. (Opinion at pp. 18-19, 21, 26-28) As the dissent pointed out, however, it is more logical to conclude ". . . the grafted exemptions patently implicated much more the political process of getting the bill passed circa 1989 than they did the Legislature's 'policy judgments."' within the meaning of Kopp. (Opinion, dissent, at pp. 4-5)
Even assuming, arguendo, that exemption of state officers and elected officials was a secondary goal of the Legislature, and as such more than simply a matter of perceived political necessity tolerated by the application of the rational basis test, it appears that the Legislature's motivation was to avoid apparent unfairness in subjecting to MCLE compliance those few of its attorney members who only infrequently and incidentally engaged in private practice. If this is a correct reading of admissible legislative history, then there is no need to eliminate entirely the exemptions in questions.31
Certainly it seems reasonable to assume here that even if, arguably, the full purpose of Senate Bill 905 cannot be realized, the Legislature would prefer to achieve some substantial portion of its purpose, particularly, where as here, such purpose is protection of the public and the courts from those attorneys who do not maintain their competence. Presumably the entire Legislature would not feel that maintenance of exemptions for a few attorney legislators who only infrequently or incidentally engage in private practice was so critical to the legislative purpose that MCLE ought to be scrapped in their absence. Compare Gerken v. Fair Political Practices Commission (1993) 6 Cal.4th 707, 717 (even where the full purpose of a proposition cannot be realized and severance is necessary, it is reasonable to suppose that those who favored the measure would be happy to achieve at least some substantial portion of their purpose); Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d 180, 189 (decisions relating to severability of partially unconstitutional legislation envision a larger judicial role; even if the statute following severance is not what the enacting body originally intended, the courts can sustain the statute if severance is mechanically feasible and the legislative body would have preferred such an outcome to total invalidation).
Even if the Court of Appeal majority's view of the Kopp decision were correct, this Court nevertheless has the independent and inherent authority to make such changes in rule 958 as it believes are required to eliminate any constitutionally significant problems of underinclusiveness. The Court of Appeal majority implicitly accepted this premise when it concluded its opinion by stating that "excision" of the supposedly unconstitutional exemptions must await either legislative reform or "the creation by our Supreme Court of a replacement for rule 958, ..." (Opinion at pp. 31-32)
As stated above, the power to regulate the practice of law has always been recognized to be among the powers of the Court. Of the.37 other states that now require continuing legal education, 36 have imposed such requirements by rule or order of their highest court. If this Court concludes that the section 6070 exemptions violate the equal protection rights of all non-exempt members and that section 6070 cannot be judicially reformed to save the program, then this Court should exercise its inherent power to declare rule 958 as still in effect and operative to require continuation of MCLE, with the Court modifying the rule to eliminate the references to section 6070 and to add, delete or modify such exemptions as the Court believes are consistent with the purpose of the rule and that do not offend equal protection principles.
The unprecedented decision of two justices in one Division of one District of the California Court of Appeal casts a cloud of uncertainty over more than 100,000 California attorneys. The inevitable uncertainty prior to a decision by this Court also directly affects the public at large and MCLE providers.
This Court has ample authority to expedite disposition of this important and extraordinary issue. In Henning v. Industrial Welfare Commission (1988) 250 Cal.Rptr. 244, for example, this Court granted expedited review and accelerated its determination in a case affecting minimum wages for tipped employees. This Court implicitly recognized that the "issues presented are of great public importance and must be resolved promptly." Id. at 211; see also Brosnahan v. Brown, supra, 32 Cal.3d 236, 241 (Court transfers to itself for original decision challenge to Victims Bill of Rights because there were "issues of great public importance [that] should be resolved promptly").
In this case, both parties have requested an early oral argument. Because of the substantial and immediate effect this case has on all attorneys, MCLE providers and the general public, the State Bar respectfully requests that the Court set this matter for oral argument at the earliest date possible under the circumstances.
To accomplish the destruction of an education system with which they obviously disagree, two justices of the Court of Appeal and Mr. Warden improperly focus on speculative influences that might have prompted certain individual legislators, while ignoring alternative and plausible explanations. As a result, they would subject an underinclusive class to unprecedented equal protection scrutiny. In addition, they ignore this Court's inherent and independent authority to craft such exemptions and to revise them if deemed appropriate or necessary. To eliminate the entire MCLE requirements would be both unwarranted and unsound. For all of the foregoing reasons, the State Bar respectfully requests that the order granting summary judgment in its favor be affirmed.
DATED: July 15, 1997.
COOPER, WHITE & COOPER
JAMES M. WAGSTAFFE
MARK L. TUFT
By: ____________________________
JAMES M. WAGSTAFFE
Attorneys for Respondents
The State Bar of California
Lorna Maynard and Carole Rossi
DIANE C. YU
LAWRENCE C. YEE
COLIN P. WONG
ROBERT M. SWEET
By: ____________________________
LAWRENCE C. YEE