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
v. THE STATE BAR OF CALIFORNIA,
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No. S060702 |
THE STATE BAR OF CALIFORNIA'S REPLY 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
A. The Statute and Rule in Question Satisfy Equal Protection Standards
1. Warden's Brief Misapplies Established Equal Protection Jurisprudence
3. Warden's Suggested Requirement for a "Tight Fit" Between the Legislative Purposes and the Exemptions Miscomprehends the Flexibility Inherent in Judicial Review of Underinclusive Rules
B. Warden's Attempt to Avoid Rational Basis Analysis is Inherently Flawed
2. This Court's Plenary Authority Does Not Mandate A Stricter Equal Protection Analysis
C. Warden Essentially Concedes that This Court Can Cure Any Perceived Constitutional Infirmities Simply By Reforming its Rule and Excising All or Some of the Challenged Exemptions
D. Warden's Other Claims Are Wholly Lacking in Merit
1. Warden's Other Claims Are Not Before the Court 13
2. Warden's Due Process and Other Claims are Frivolous in Any Event
Statutes
Business & Professions Code Section 6070
Business & Professions Code Section 6002
Cal. Const., art. III, § 3.5
California Government Code §§ 818.4, 821.2
California Rules of Court 28(c)
California Rules of Court 28(e)(2)
California Rules of Court 29.3
Rule of Court 958
In 1990, this Court joined some 36 other states when it responded to legislation and implemented a rule requiring attorneys in this State to maintain certain minimum levels of continuing education.1 Plaintiff and Appellant Lew Warden now seeks to invalidate the entire Mandatory Continuing Legal Education ("MCLE") program based on exemptions provided to certain limited groups of individuals.
In his Opposition Brief ("O.B."), Warden reveals the true philosophical underpinnings of his effort to eviscerate MCLE and his adamant refusal to comply with any such requirements. Mr. Warden has concluded that there is no need for MCLE (O.B. at 24-25) and that he somehow has a "vested fundamental right" to practice law free from the educational requirements imposed by the joint action of the Legislature and this Court. (O.B. at 38)2 To accomplish his objective, Warden fastens on the narrow but supposedly "elitist" exemptions (O.B. at 25-26) from MCLE adopted by this Court and argues that they render the entire continuing education program unconstitutional.
As shown below, Warden's constitutional attack on the limited exemptions is without merit and should be rejected. Warden ignores the rule that regulatory line-drawing is presumed constitutional, cannot be defeated by speculations as to supposed "political" motives and can be supported on any conceivable basis. In addition, Warden's brief would apply a strict standard of scrutiny to a minimally under-inclusive rule when, in fact, such "one step at a time" approaches have uniformly been upheld by the courts. His efforts to avoid established equal protection standards by claiming a "fundamental right" to practice law or by relying on the Court's "plenary" authority over attorneys are misguided and unsupported by any of the citations presented.3
Warden's vitriolic rhetoric is no substitute for reasoning and accurate citation. The State Bar will demonstrate below that the exemptions in Business & Professions Code § 6070 and Rule of Court 958 easily satisfy constitutional minimums when examined under the long-standing rules governing equal protection cases. Moreover, Warden's "fundamental rights" and disallowed "due process" arguments do not compel a different result. Finally, this Court has inherent authority to delete any or all of the exemptions if it now concludes that they present constitutional concerns.
The State Bar demonstrated in its Opening Brief that when a regulatory classification does not relate to a suspect class or infringe a fundamental right, it will be analyzed under the highly deferential "rational basis" test. Under this test the court will engage in minimal scrutiny and the classification is presumed constitutional. Heller v. Doe (1993) 509 U.S. 312, 319. Moreover, the reviewing court does not examine any supposed "actual" motives for the rule, but rather will uphold the law if it is supported by any "conceivable" purpose. Id. Significantly, the party attacking the classification has the burden of negativing every conceivable basis "whether or not the basis has a foundation in the record," and courts are compelled to accept generalized justifications "even where there is an imperfect fit between means and ends." Id. at 320-21. Finally, a classification "is not subject to courtroom fact finding and may be based on rational speculation unsupported by evidence or empirical data." Federal Communications Commission v. Beach Communications, Inc. (1993) 508 U.S. 307, 315.
Warden's constitutional attack violates each aspect of the equal protection rational basis standard identified above. Warden ignores the "any conceivable purpose" standard (and overlooks his own neglect and failure to produce any credible evidence in the trial court) when he asserts that the State Bar (1) "did not produce any evidence" as to the purpose for the challenged exemptions and (2) was under an obligation to produce a supposed legislative history. (O.B. at 19:17-19, 23:9-14, 24:24-25:6, 25:13-15 ) In a ' similar vein, he mistakenly finds it significant that the Legislature "made no findings of public purpose" for the exemptions and that the "speculations" of the State Bar's counsel do not suffice. (O.B. at 20:4-7, 24:15-21, 27:13-16, 28:19-21)4
Illustrating an even more flawed analytic approach, Warden then argues for several pages as to what he perceives to be the "true" and "political" purposes for the exemptions. (O.B. at 19:19-23-14) Not only does this argument blatantly violate the prohibition against examination of motive, it finds no support in the record before this Court. See Cal. Rule of Court 28(c) ("reference to evidentiary matters ... shall be by appropriate reference to the record"). The only citation Warden provides is to this Court's decision in Brosterhous v. State Bar (1995) 12 Cal.4th 315; however, Brosterhous contains none of the language quoted in Warden's brief.5 Warden's rhetoric that the "State Bar knows full well," that it or the Legislature was "politically" inspired, and that it "should forthrightly concede" the actual purpose for the exemptions flies in the face of well-settled constitutional jurisprudence.
In a startling admission, Warden reveals why his analysis misses the mark as to the appropriate equal protection standards. Warden states that he "will not respond" to any of the federal authorities and Supreme Court decisions because this case involves a California statute and rule. (O.B. at 27:24-28-5) He then erroneously argues that no deference is required as to statutory classifications when there are no supportive legislative findings of fact. This is not the law and the one federal case Warden does cite, Nordlinger v. Hahn (1992) 505 U.S. 1, upholding the constitutionality of the extremely disparate tax treatment of property owners under California's Proposition 13, specifically holds that classifications are to be upheld under any plausible or conceivable basis. Id. at 11-13.6
As set forth above, the correct test to apply when analyzing the constitutional validity of the very limited exemptions to the MCLE requirement is whether there is any conceivable basis to justify the rule. When one puts aside Warden's unsupported argument that MCLE in general is without legitimate basis and his application of a heightened form of equal protection and scrutiny, it is readily apparent that these limited exemptions are constitutional.
As the State Bar showed in its opening brief, there are at least two fundamental justifications that could have formed a basis for the exemptions in question. First, the Legislature and this Court conceivably could have concluded that the exempted groups are less likely as a general matter to represent members of the public on a regular basis. Thus, it would be rationale to conclude the are less in need of MCLE.7
Second, the exempted groups conceivably could have been thought to have had greater experience with and access to legal issues and legal education on an ongoing basis. As such, the Legislature and this Court easily could have concluded these persons less in need of preliminary regulation.
When viewed through the prism of the "any conceivable" basis and lenient rational basis standard, these two explanations independently shield the exemptions from constitutional attack. It is certainly possible that elected officials, retired judges, and full time law professors generally are less likely to be engaged in the full time practice of law or to be representing clients on a regular basis.8 By the same token, it can hardly be denied that the Legislature plausibly or conceivably could have concluded that these groups are more likely, as a result of their occupations, to stay abreast of legal issues and thus be less in need of required minimums. For example, law professors and judges are constantly exposed to recent developments, either through briefs or case book supplements. As such, the Legislature and the court rationally could have concluded that MCLE was less "necessary" to these groups.9
In response, Warden incorrectly asks this Court to apply what can only be characterized as "heightened" scrutiny. For example, he questions the "empirical" basis for such exemptions and demands that the State Bar (and presumably the Legislature and this Court as well) come forward with affirmative evidence showing that the justifications for these exemptions were not the result of "invidious discrimination." As shown above, these demands exceed any requirements of rational basis review and thus lead Warden to conclude wrongly that the exemptions are unconstitutional.
Throughout his opposition brief, Warden repeatedly argues that the exemptions are unconstitutional because there is not a "tight fit" between the proffered legislative purposes of better educated lawyers and the line drawing performed in the statute and the rule. For example, he argues that there are other categories of lawyers who do not represent clients on a regular basis (e.g. house counsel) and there may be some retired judges, full time law professors and legislators who nevertheless are in need of continuing education. (O.B. at 25-26) In typical rhetorical style, Warden continually refers to this as the "elitist" speculations underlying the statute and the rule. (O.B. at 26:15)
The problem with Warden's analysis is that it ignores established equal protection jurisprudence as to under-inclusive classifications. As the State Bar demonstrated in its opening brief, rule makers operating on the rational basis standard are permitted a wide degree of flexibility when drawing lines and applying statutes to some, but not all, persons or entities who might come within the general statutory purpose. A governing body may recognize varying degrees of harm and confine the regulation to those class of persons for which it deems the regulation more imperative. Federal Communications Commission v. Beach Communications, Inc. (1993) 508 U.S. 307, 315-16; Werner v. Southern Cal, etc. Newspapers (1950) 35 Cal.2d 121, 132-33.
It is hornbook constitutional law that the Legislature may attack a problem piecemeal "addressing itself to the phase of the problem which seemed more acute to the legislative mind." Williamson v. Lee Optical Co. (1955) 348 U.S. 43, 49- E. Chemerinsky, Constitutional Law § 9.2 at p. 542 (1997). 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, 992.10 Warden's only response to these cases is to cite a concurring opinion in Railway Express v. New York (1949) 336 U.S. 106, 112-113, setting forth general principles against supposedly "arbitrary and unreasonable government." (O.B. at 26-27) Warden's reliance on this separate opinion is misplaced because it ignores the fact that the majority opinion in Railway Express expressly rejected the conclusion that the equal protection clause requires uniform application of laws. Id. at 110. Even more fundamentally, the actual holding of this case compellingly supports the position of the State Bar in this case. In Railway Express, the Supreme Court upheld a law that prohibited the operation of an "advertising vehicle," but created an exemption for "business notices upon business delivery vehicles, so long as such vehicles are engaged in the usual business or regular work of the owner, and not used mainly for advertising purposes." Id. at 107-8. The Court concluded that the law had the legitimate purpose of enhancing traffic safety because the city might perceive that the prohibited advertising could be more distracting, Ruling that it was immaterial whether the government failed to deal with even greater distractions to motorists, the Court declared: "It is no requirement of equal protection that all evils of the same genus be eradicated or none at all." Id.; see also New York Transit Authority v. Beazer (1979) 440 U.S. 568, 575 (court upholds regulation preventing individuals in methadone maintenance programs from holding positions with the transit authority, noting statute passes the rational basis test "despite its lack of precision").
California courts have taken the same approach. For example, in Rittenband v. Cory (1984) 159 Cal.App.3d 410, the court rejected an equal protection challenge to a law which encouraged judges to retire at or before age seventy. The court acknowledged that the statute could be both over-inclusive and under-inclusive and nevertheless upheld its constitutionality:
The evidence that a statute that compels or otherwise induces retirement at a presumptive age, is both over-inclusive and under-inclusive (because incompetent persons below that age escape involuntary retirement) warrants only the conclusion that such a statute will sometimes work unfairly and is, perhaps unwise. Such a statute may not be set aside on constitutional grounds, however, if any basis reasonably may be conceived to justify it. (Allied Stores of Ohio v. Bowers (1959) 358 U.S. 522, 530 [3L.Ed.2d 480, 486, 79 S.Ct. 437]; D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d 1, 16; Kubik v. Scripps College, supra, 118 Cal. App.3d 544, 552.)
Id. at 427. The court accepted such a basis despite the imprecision of the line drawing effort, confirming that under-inclusive statutes will virtually never be subject to successful equal protection challenge. This rational basis standard compels the same result here.11
Warden argues that the Court should apply a heightened scrutiny to its review of the MCLE exemptions on the grounds that his right to practice law is a "fundamental interest. " (O. B. at 3 8-43) This argument is contrary to established precedent.12
This Court has consistently emphasized that the rational basis standard of review applies to equal protection challenges involving occupational regulation. D'Amico v. Board of Examiners (1974) 11 Cal.3d 1, 17, see also Adams v. Commission on Judicial Performance (1994) 8 Cal.4th 630, 659 (occupational regulation analyzed under rational basis standard), Kennick v. Commission on Judicial Performance (1990) 50 Cal.3d 297, 2 1 0 (judge's suspension from practice sustainable under rational basis analysis).13
Warden's insistence that the right to practice law, as a "liberty" interest, constitutes a "fundamental right" in the equal protection context is contrary to established law. As noted above, the court in Rittenband v. Cory (1984) 159 Cal.App.3d 410 overruled an equal protection challenge to a judicial retirement statute. The Court also rejected the claim that the provision infringed on a "fundamental right" to pursue a lawful occupation stating: "There is simply no merit to plaintiffs' assertion that the right to employment as a judge is fundamental." Id. at 418. The Court emphasized that "notwithstanding the principle. . . that the right to work at a lawful occupation is an essential component of liberty, the United States Supreme Court consistently has refused to recognize a fundamental right to particular employment. " Id. at 418 (emphasis added).
Warden argues that this Court's "plenary" authority to regulate the practice of law displaces traditional equal protection analysis and somehow compels strict scrutiny of the MCLE exemptions. (O.B. at 11-16) This effort to avoid the impact of the rules requiring only minimal scrutiny of such classifications is misguided for several reasons.
First, there is no dispute that the Equal Protection Clause and the accepted analytic framework for its construction apply to the acts of all branches of the government, including the judiciary. See Ex Parte Virginia (1880) 100 U.S. 339. Accordingly, this Court is not free to engage in an equal protection analysis that disregards established precedent or the rules mandating only minimal review of classifications that do not concern suspect classes or fundamental rights.
Second, Warden mistakenly asserts that the Court's plenary authority has resulted in the complete exclusion of the legislature from involvement in the regulation of the legal profession, and thus no "deference" is required. To the contrary, this Court has respected "a reasonable degree" of legislative control over the profession and practice of law. Hustedt v. Workers' Comp. Appeals Bd. (1981) 3 0 Cal.3d 329, 337, quoting State Bar of California v. Superior Court (1929) 207 Cal.323, 331. While this Court's authority over law practice certainly offers it more flexibility when promulgating rules (and, as discussed below, complete freedom to reform any unconstitutional aspects of a court rule), it does not mean that constitutionally-mandated deference to legislative line-drawing can be jettisoned. Certainly, the Court's plenary authority cannot be turned on its head to require strict scrutiny" of its own previously-approved rules.
Finally, Warden takes inconsistent positions with respect to the Court's plenary authority. On the one hand, he argues that deference to legislative line-drawing is not required because of the Court's independent authority to regulate the practice of law. At the same time, however, he seeks to invalidate a rule validly adopted by this Court based on his view that the exemptions contained therein resulted from the improper "political" motives of the Legislature. A far more sensible answer to this question is that there must be deference to both legislative and judicial action and that "line-drawing" efforts in such areas are presumed constitutional and will survive if there is any reasonably conceivable basis for the exemptions at issue.
In its Opening Brief, the State Bar showed that if the exemptions are constitutionally infirm, it is appropriate for this Court to reform the requirements by excising any perceived unconstitutional aspects of the statute. Furthermore, this Court has inherent authority to revise its own rule so as to accomplish a result far less draconian than to eviscerate the entire MCLE program. (State Bar's Opening Brief at 24-29)14 Simply put, it makes no sense to "throw the baby out with the bath water" when examining the constitutional impact of such de minimis exemptions.15
Significantly, Warden does not respond in any way to these arguments other than to assert without authority that the entire rule making process should be repeated, rather than simply excising the limited exemptions. (O.B. at 11-13) Of course, Warden's argument conflicts with the underlying premise of much of his brief, i.e., this Court has broad and plenary authority to act as it sees fit when it comes to the regulation of the practice of law. As to the judicial power of the Court to reform the statute in question under Kopp v. Fair Political Practices Commission (1995) 11 Cal.4th 607, Warden has nothing to say and presumably agrees with the State Bar in this regard.
In its Petition for Review, the State Bar set forth the particular issues on which it sought review -- which related exclusively to the Court of Appeal's equal protection analysis of the exemptions to MCLE. Meanwhile, Warden filed his own Petition in which he sought review of his claims. In response to these filings, this Court granted the State Bar's Petition and denied Warden's request for a hearing as to his other claims.
As a general matter, parties are required to confine their briefs to the issues on which this Court grants review. Cal. Rule of Court 29.3. The statement of issues in the State Bar's Petition "defines the scope of the issues to be considered on the merits if review is granted, unless the Supreme Court determines otherwise." Cal. Rule of Court 28(e)(2) (Advisory Committee Comment). "Only the issues set forth in the petition and answer or fairly included in them need be considered by the court." Cal. Rule of Court 28(e)(2).
Pursuant to these rules, Warden's claims are not presently before the Court. Warden should have confined his brief to the issues included in the State Bar's Petition as they related solely to the equal protection issues concerning the MCLE exemptions.16 This Court's denial of Warden's Petition underscores and compels this conclusion.
Based solely on a "factual" statement laced more with rhetoric than citation, Warden argues that the MCLE program violated his due process fights and that he is entitled to recover damages. His claims are frivolous and ignore established precedent.
In June 1991, and again in March 1992, the State Bar mailed to all its members, at their last known addresses, notices and instructional materials concerning the MCLE requirement. (C.T. at 245-246, 351-67, 406)17 Although he denies having received these mailings, Warden admits having learned of the MCLE program in 1992 from other attorneys and having received materials in early 1993 as to his membership in the first compliance group. (CT. at 245-250; 296-320) Despite these notices and Warden's defiant resolution never to comply with the MCLE requirements, Warden nevertheless filed and has pursued various due process and damage claims in this lawsuit.
These claims are without merit. The legislature may constitutionally provide for the automatic revocation or suspension of a license upon the happening of a specified event, without the necessity of a hearing, where there are no questions of fact to be resolved. See DiGenova v. State Board of Education (1955) 45 Cal.2d 255, 260-63; Slaughter v. Edwards (1970) 11 Cal.App.3d 285, 293-94. Warden's claim that he had a liberty interest in his license to practice law under substantive due process is unsupported. Armendariz v. Penman (9th Cir. 1996) 75 F.3d 1311, 1318 ("the use of substantive due process to extend protection to economic and property rights has largely been discredited"); Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1184 (applying Armendariz to hold no protected interest in building permit).
Warden's enrollment on inactive status did not present any factual issues to be resolved and there was no requirement for a hearing. Warden consciously chose not to comply with the MCLE requirements and demanded a hearing for the sole purpose of declaring the rule unconstitutional--a subject beyond the State Bar's power. Cal. Const., art. III, § 3.5.
Warden's damage claims are equally frivolous. Neither a state agency nor its employees may be sued in their official capacities under the federal civil rights statute. Will v. Michigan Dept. of State Police (1989) 491 U.S. 58. Furthermore, the State Bar defendants are immune from claims for damages. Rosenthal v. Vogt (1991) 229 Cal.App.3d 69, 76 , Cal. Govt. Code §§ 818.4, 821.2. As such, Warden's claims failed from the outset.
This case involves an effort to destroy California's MCLE program in its entirety as a result of limited exemptions applicable to a small number of individuals. The equal protection challenge to this program fails because there can be no legitimate question that MCLE in general, and these exemptions in particular, satisfy the minimal scrutiny contemplated under the governing rational basis test. As Warden himself seems to concede, even if these exemptions are viewed as unconstitutional, this Court has the inherent authority to excise these exemptions from the rule and to reform the statute in question in order to preserve the undisputed benefits derived from ongoing educational requirements for attorneys in this State. The State Bar respectfully requests that this Court reverse the decision of the Court of Appeal and reinstate the summary judgment rendered in its favor by the trial court or, in the alternative, amend Rule 958 to remedy any perceived constitutional defect in the MCLE program.
DATED: September 10, 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