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 |
BRIEF OF LOS ANGELES COUNTY BAR ASSOCIATION
SAN DIEGO COUNTY BAR ASSOCIATION, SAN FERNANDO
VALLEY BAR ASSOCIATION, ORANGE COUNTY BAR ASSOCIATION,
SACRAMENTO BAR ASSOCIATION, AND WOMEN LAWYERS ASSOCIATION
OF LOS ANGELES
AS AMICI CURIAE IN SUPPORT OF
THE STATE BAR OF CALIFORNIA
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
| JOHN A. KRONSTADT, No. 71555 Blanc Williams Johnston & Kronstadt, LLP 1900 Avenue of the Stars, 17th Floor Los Angeles, CA 90067 Telephone: (310) 552-2500 CATHERINE VALERIO BARRAD, No. 168897 |
II. HISTORY OF THE MCLE PROGRAM IN CALIFORNIA
III. THE INTEREST OF THE VOLUNTARY BAR ASSOCIATIONS IN THIS APPEAL
A. The Exemptions in the MCLE Statute Should be Severed To Preserve the MCLE Program
a. Conceivable Facts; Plausible Reasons
c. Legislative Statements Unnecessary
d. Classifications May Be Drawn Imperfectly
2. The Application of the Rational Basis Test
a. The Court of Appeal Misapplied the Rational Basis Test
b. The Exemptions are Rationally Related to the Underlying Governmental Purpose
(i) Governmental Exemptions in General
(ii) Officers and Elected Officials of the State of California
(iv) Full-Time Professors at Accredited Law Schools
(v) Attorneys Employed by the State of California
(vi) Attorneys Employed by the United States Government
FEDERAL CASES
STATE CASES
FEDERAL STATUTES AND CONSTITUTION
28 C.F.R. § 77
2 U.S.C.A. §§ 1301-1438 (West 1997)
29 U.S.C. §§ 201, et seq.
29 U.S.C. §§ 621, et seq.
29 U.S.C. §§ 651, et seq.
42 U.S.C. §§ 20003, et seq.
United States Constitution, amend. xiv, § 1
STATE STATUTES AND CONSTITUTION
Cal. Business and Professions Code ' 6070
Cal. Health & Safety Code '' 25249.525249
California Constitution, art. I, ' 7
Mandatory continuing legal education is a subject of great significance to the members of the Los Angeles County Bar Association ("LACBA"), the San Diego County Bar Association, the San Fernando Valley Bar Association, the Orange County Bar Association, the Sacramento Bar Association, and the Women Lawyers Association of Los Angeles (collectively, the "voluntary bar associations") and to attorneys and clients throughout California. Consequently, LACBA , the San Diego County Bar Association, the San Fernando Valley Bar Association, the Orange County Bar Association, the Sacramento Bar Association, and the Women Lawyers Association of Los Angeles respectfully seek leave of this Court, pursuant to California Rule of Court 14(b), to present their views, as amicus curiae, on the important issues raised in this proceeding. LACBA , the San Diego County Bar Association, the San Fernando Valley Bar Association, the Orange County Bar Association, the Sacramento Bar Association, and the Women Lawyers Association of Los Angeles have been active for many years in expressing their views on the significance of continuing legal education and in providing training programs to attorneys. Accordingly, LACBA , the San Diego County Bar Association, the San Fernando Valley Bar Association, the Orange County Bar Association, the Sacramento Bar Association, and the Women Lawyers Association of Los Angeles respectfully suggest that, because they have an informed, objective perspective on mandatory continuing legal education, they can contribute to the deliberations of this matter by supplementing the presentation made to this Court by The State Bar of California.
During the legislative and rule-making processes that led to the implementation of the MCLE requirements, for example, LACBA consistently opposed exemptions for any active member of the State Bar. Today, LACBA adheres firmly to that view; as a policy matter, MCLE should apply to all. LACBA will continue to advance that view in future legislative and rule-making proceedings. But, as a constitutional matter, the issue presented by this appeal is not whether the legislative policy that created exemptions with which LACBA disagrees was correct. Instead, the question presented is whether the policy judgments that were made by the legislative branch can, as a matter of long-standing constitutional principles, be overturned by the judicial branch. LACBA believes that they cannot and that the Court of Appeal erred in its contrary conclusion.
Accordingly, LACBA , the San Diego County Bar Association, the San Fernando Valley Bar Association, the Orange County Bar Association, the Sacramento Bar Association, and the Women Lawyers Association of Los Angeles urge this Court to reverse the decision of the Court of Appeal, Warden v. The State Bar, 53 Cal. App. 4th 510, 62 Cal. Rptr. 2d 32 (1997), and uphold both Cal. Bus. & Prof. Code '' 6070, 6071 (West's Ann. Calif Codes) (the "MCLE Statute") and the Minimum Continuing Legal Education Rules and Regulations (the "MCLE Rules"), which implement the MCLE Statute and California Rules of Court, Rule 958. Absent such a decision, the mandatory continuing legal education system will be lost, although it was the culmination of a lengthy legislative process and, since 1991, has been accepted by tens of thousands of active practitioners in this State. With it will be lost its salutary purpose: "to assure that, throughout their careers, California attorneys remain current regarding the law, the obligations and standards of the profession, and the management of their practice." MCLE Rule 1.0. Striking down the MCLE Statute or the MCLE Rule in total would be unsound given that less than one percent of attorneys in this State are within the legislative exemptions from mandatory compliance. Further, a failure to uphold the MCLE program would leave attorneys as the only major professional group in California without ongoing training obligations.
There are two primary reasons that call for a reversal of the decision below. First, the Court of Appeal erred in declaring that the MCLE Statute as implemented by the MCLE Rules violated the Equal Protection Clause of the United States Constitution (U.S. CONST. amend. xiv, ' 1) and the California Constitution (Cal. CONST. art. I, ' 7) because neither the statute nor the implementing rules could be saved by directing that three of the exemptions each contains state officers and elected officials, retired judges, and full-time law professors at accredited law schools - be excised. Even assuming that these exemptions do not satisfy the rational basis test applicable under equal protection analysis although the voluntary bar associations submit they plainly do the Court of Appeal should have followed the approach of the dissent of Justice Haerle and severed any offending portions of the MCLE Statute and the MCLE Rules. Kopp v. Fair Pol. Practices Com., 11 Cal. 4th 607, 47 Cal. Rptr. 2d 108, 905 P.2d 1248 (1995). This course would have preserved the important legislative mandate for continuing education.
Second, this Court should uphold the MCLE Statute and the parallel MCLE Rules in their current forms because the three challenged exemptions reflect a rational exercise of legislative decision-making that should be left undisturbed by the judiciary. Although LACBA disagrees with these policy choices, under the separation of powers principles that inform modern equal protection analysis, rational basis review "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices ... ." FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). Rather, such legislative decision-making is not to be disturbed by the judiciary unless it is "palpably arbitrary." Nordlinger v. Hahn, 505 U.S. 1, 18, 112 S. Ct. 2326, 2335-36, 120 L. Ed. 2d 1 (1992). Although the Court of Appeal correctly determined that the exemptions should be upheld so long as they bear a rational relationship to a legitimate state purpose, it erred in its application of this test. Thus, as the United States Supreme Court has observed, the invalidation of economic or social welfare legislation solely on equal protection grounds is a rarity. City of New Orleans v. Dukes, 427 U.S. 297, 306, 96 S. Ct. 2513, 2518, 491 L. Ed. 2d 511 (1976). Accordingly, the position of the Court of Appeal is an aberration that must be corrected.
In 1989, Governor Deukmejian signed into law Senate Bill 905, known as the "MCLE bill," which became Business and Professions Code section 6070. That legislation required the State Bar of California to request that the California Supreme Court promulgate a rule of court establishing a mandatory continuing legal education system in California. It is that legislation that is at issue in this appeal.
Section 6070 of the Business and Professions Code was nearly 20 years in the making. In 1971, the California Legislature required the State Bar of California to study a mandatory continuing legal education requirement. Three years later, the Special Committee on Maintenance of Professional Competence recommended a mandatory continuing legal education program with periodic relicensing, a proposal that was not well received at public hearings the following year. In 1980, the Committee recommended a modified five-year mandatory continuing legal education program that also proved to be unpopular at public hearings. Legislative proposals were introduced in the Senate and the Assembly in 1982 and 1987 to establish a mandatory continuing legal education program; both failed. Shortly after the last proposal died, Senate Bill 905 was introduced, which became Section 6070, recommending a mandatory continuing legal education requirement for all active members of the Bar. That legislative proposal, as amended to include certain limited exceptions, ultimately proved successful.
The Legislature's stated purpose of the bill was to "improve the quality legal representation in California through mandatory continuing legal education." Senate Rules Committee for Third Reading, Senate Floor Analysis (June 1, 1989). The Legislature's primary concern was public protection against uninformed and inefficient representation by attorneys. As stated by the bill's author, Senator Ed Davis, in his letter to Governor Deukmejian urging approval of the bill:
The rationale underlying the bill is one that has been adopted in 28 states. Continuing education will keep practitioners more aware of the constant changes in the law, and accordingly, benefit both attorneys and their clients. While the advantages to be gleaned by the ethics provisions are self evident, the impact on the public perception of lawyers, though less certain, may prove equally positive.
Letter from Sen. Ed Davis to Governor Deukmejian (September 21, 1989). The Legislature consistently identified these interrelated goals of public protection and increased competence of lawyers throughout its consideration of the measure. See, e.g., Senate Committee on the Judiciary, Bill Analysis (May 23, 1989) ("The purpose of this bill is to improve the quality of legal representation in California through mandatory continuing legal education"); Senate Committee on the Judiciary, Background Information for SB 905 ("What problems or deficiency under current law does the bill seek to remedy? [Answer:] Dumb lawyers"); Assembly Committee on the Judiciary, Worksheet (purpose of bill is to "provide the requirement for continuing legal education for practicing attorneys . ... By providing continuing legal education, attorneys will be able to give more efficient representation and will be reminded of the pitfalls that sometimes lead to inadvertent discipline and possible malpractice suits"); Assembly Committee on the Judiciary, Republican Analysis (September 1, 1989) (noting that the measure is a "consumer protection bill").
The Legislature had before it ample evidence to find that mandatory continuing legal education would primarily benefit attorneys in small private practices without access to law office management systems and continuing legal ethics training. See. e.g., Letter from Robert C. Fellmuth, State Bar Discipline Monitor, to Senate Committee on the Judiciary (May 23, 1989) ("It is clear that mandatory continuing legal education will have an important impact on the burden of the discipline system in the long run. ... [T]here would be an eventual and likely significant ameliorating impact on discipline from a program as proposed in SB 905"); Letter from the Law Practice Management Section of the State Bar of California to Members of the Board of Governors and Board Committee on Professional Standards (April 20, 1988) ("The conclusion is evident: increase the competency of California lawyers in law practice management and the causes of malpractice claims will be reduced"); Stephen M. Blumberg, "Avoiding Malpractice," California Lawyer (June 1987) (stating that nearly all malpractice claims stem from law practice management problems and ethical violations, such as failure to calendar matters properly, failure to inform client about representation, suing a client for fees, inadequate knowledge of the law or facts, poor client relations, conflicts of interest, and failure to document a case); accord State Bar of California, Initial Report of the Commission to Study Mandatory Continuing Legal Education (July 1987) ("[R]equiring attorneys to engage in even a limited number of quality continuing legal education activities will contribute positively to the goals of maintaining and enhancing attorney competence"); Maryland State Bar Association Committee on Continuing Legal Education, Report and Recommendations on Mandatory Continuing Legal Education (June 1986) (stating that the goals and purposes of continuing legal education include improving and maintaining the competence of the profession, responding to increased malpractice claims, and response to public criticism of the competence of attorneys).
The Legislature also had evidence to suggest that mandatory continuing legal education would effectuate the purpose of the bill. See, e.g., State Bar of California Final Report of the Commission to Study Mandatory Continuing Legal Education (January 8, 1988) ("With few exceptions, the participating attorneys [in other states' MCLE programs] indicate overwhelming support for MCLE. By large margins, they believe the programs have improved their individual ability to practice and have raised the level of attorney competence throughout their states."). As Senator Davis suggested to the Governor, the Legislature believed that the limited exemptions provided by the bill would not eviscerate its legislative purpose:
The provisions of this bill will draw those most likely to benefit back to the classroom. Reviews of disciplinary proceedings disclose that solo practitioners and others who engage in a somewhat isolated practice are most likely to run afoul of the rule of ethics or commit malpractice.
Letter from Sen. Ed Davis to Governor Deukmejian (September 21, 1989).
Following the enactment of the legislation, the Supreme Court delegated to the State Bar the tasks of drafting a proposed rule of court, setting out the general provisions of the program, and promulgating detailed regulations establishing the program and its administration. The draft rule of court was circulated for a 90day public comment period in early 1990. Thereafter, the proposed regulations were circulated for a 90day public comment period, which included two public hearings.
After considering public comments, the final proposed rule of court was presented to the Supreme Court in 1990, which promulgated it as California Rule of Court 958 as of December 6, 1990. This made California the thirty-sixth state to establish a mandatory continuing legal education requirement. The final regulations were promulgated on December 8, 1990. Both Rule 958 and its implementing regulations include the exemptions held to be unconstitutional by the Court of Appeal.
The interest of the voluntary bar associations in this appeal derives from their strong and long-standing commitment to providing quality continuing legal education to their members. Without exception, each of the voluntary bar associations represented here has been dedicated to meeting the professional needs of its members. As part of such efforts, many of the associations provided continuing legal education even before the mandatory continuing legal education program was established in California six years ago.
For example, founded in 1878, the 22,000-member Los Angeles County Bar Association is the largest local voluntary bar association in the United States. It is dedicated to improving and maintaining the overall quality of the legal profession. As part of this mission, it is committed to advancing the administration of justice and to meeting the educational and other professional needs of Los Angeles lawyers. LACBA operates one of the oldest and largest continuing legal education programs in California, producing more than 250 educational programs annually. These programs collectively attract thousands of attendees each year.
The San Diego County Bar Association, founded in 1899, is a general voluntary association of more than 6500 lawyers and judges. The Association is actively engaged in providing services to its members, including an outstanding continuing legal education program. It currently administers a grant from the California Endowment in excess of $500,000 per year to deal with issues of children and society, and operates a program providing for the appointment of private counsel in representing indigent criminal defendants. As stated in Article I of its Articles of Incorporation, the objectives of the San Diego County Bar Association are to "advance the science of jurisprudence; to improve the education of its members; to raise the standard of professional conduct; to promote a better understanding of the legal profession by the public; to facilitate the improved perception of lawyers who serve the community; to encourage cordial and friendly relations among its members; to maintain the honor and dignity of the bench and bar."
The San Fernando Valley Bar Association is one of the premier local bar associations in California and the nation. Since 1926, the SFVBA has served its members and the public with distinction and has been a strong voice for the San Fernando Valley legal community. More than 1500 members continue an historical tradition of responding to the challenges and needs of the community by donating time and resources to the SFVBA Lawyer Referral and Information Service and the Bar's many public service programs.
The members of the voluntary bar associations participate in bar-sponsored, quality continuing legal education programs. For example, past and current surveys of LACBA members indicate that the majority of members join LACBA to take advantage of its continuing legal education programs. A 1987 survey, which was taken prior to the establishment of the mandatory continuing legal education requirement, found that more than 75% of LACBA members surveyed believed that continuing legal education was an "important" benefit of membership. The same survey ranked continuing legal education as the most important benefit provided by LACBA. When the survey was repeated in 1994, more than 95% of the respondents indicated that continuing legal education programs should be a top priority of LACBA. Some 60% cited the availability of low-cost, high-quality continuing legal education as the reason they are members of LACBA.
Because of the importance of continuing legal education to the voluntary bar associations, they participated in every step of the legislative process, rulemaking, and promulgation of regulations regarding mandatory continuing legal education. Many, including LACBA, established special subcommittees to work with the State Bar on the rules and regulations. For example, LACBA commented on each of the revisions of Senate Bill 905, in both the Senate and the Assembly. LACBA also participated in the public hearings on the proposed regulations and provided input on each of the six drafts of regulations prior to the publication of draft regulations for public comment. In addition, LACBA provided written comments on the proposed rule of court establishing the MCLE program.
Regardless of the forum, LACBA remained steadfast in one comment on the legislation, rule of court, and regulations: No active member of the State Bar should be exempted from the MCLE requirements. LACBA continues to hold that policy view to this day. However, that policy question is not the issue on this appeal. Given that a contrary determination was made by the Legislature, the judiciary is not to evaluate the merits of that policy decision. Instead, the question presented today is whether this Court should strike down that legislative determination in its entirety on the grounds that it reflects abjectly arbitrary decision-making. On this issue the amici are of a unified view: As a matter of constitutional law, this Court should not do so.
The Court of Appeal determined that the exemptions in the statute for officers and elected state officials, retired judges, and full-time legal professors do not have rational bases, and are, therefore, unconstitutional. Assuming, without conceding, that the exemptions are unconstitutional, these portions of the statute may be severed from the balance of the statute provided that the dominant purposes of the statute may be effected. This rule applies even in the absence of a severability clause in the legislation. Gerken v. Fair Political Practices Comm'n, 6 Cal. 4th 707, 721, 25 Cal. Rptr. 2d 449 (1993); Gray v. Whitmore, 17 Cal. App. 3d 1, 28, 94 Cal. Rptr. 904 (1971). The final determination depends upon whether the remaining parts of the statute are complete in themselves and would have been adopted by the Legislature had it foreseen the partial invalidity of the statute. Calfarm Ins. Co. v. Deukmejian, 48 Cal. 3d 805, 821, 258 Cal. Rptr. 161 (1989); Santa Barbara Sch. Dist. v. Superior Court, 13 Cal. 3d 315, 331, 118 Cal. Rptr. 637 (1975).
The invalid provision must be grammatically, functionally, and volitionally separable. Calfarm Ins. Co. v. Deukmejian, 48 Cal. 3d 805, 821, 258 Cal. Rptr. 161 (1989). Here, the exemptions are clearly severable from the remainder of the statute because they are distinct from the provision establishing the continuing legal education and bear no necessary relationship to it. People v. Barksdale, 8 Cal. 3d 320, 332, 105 Cal. Rptr. 1 (1972).
First, the exemptions are mechanically and grammatically severable. As a discrete subsection of the statute, the exemptions are grammatically complete and distinct. That subsection can be removed as a whole without affecting the wording of any other portion of the statute. See, e.g., People v. Barksdale, 8 Cal. 3d 320, 332, 105 Cal. Rptr. 1 (1972) (severing unconstitutional portions of statute and preserving remaining portions); Curtis v. Board of Supervisors of Los Angeles County, 7 Cal. 3d 942, 964, 104 Cal. Rptr. 297 (1972) (severing unconstitutional provisions for special veto powers of landowners from remaining statutory scheme for incorporation of cities); Valdes v. Cory, 139 Cal. App. 3d 773, 792, 189 Cal. Rptr. 212 (1983) (severing sections dealing with funding of pension system from remainder of statute dealing with other cost-cutting measures).
Second, the exemptions are functionally severable because the remaining statutory scheme establishing the mandatory continuing legal education program is complete in itself. People's Advocate, Inc. v. Superior Court, 181 Cal. App. 3d 316, 331-32, 226 Cal. Rptr. 640 (1986) (setting forth the functional test for severability).
Provisions setting forth exemptions to a general statutory scheme are functionally severable if the remaining statutory scheme is complete in itself. Calfarm Ins. Co. v. Deukmejian, 48 Cal. 3d 805, 822, 258 Cal. Rptr. 161 (1989). In Calfarm Ins. Co., various insurers challenged the insurance reform statute enacted by the successful ballot initiative, Proposition 103. As enacted, section 1861.05 set out a standard rate change procedure. Section 1861.01(b), however, qualified section 1861.05 by limiting rate change adjustments prior to a particular date to insurers substantially threatened with insolvency. This Court held that section 1861.01(b) was unconstitutional, but that it could be severed from the remainder of the statutory scheme because: (i) it was a separate and distinct provision that could be removed without affecting the wording of any other provision; (ii) it provided an exception to the more general rate-setting standard and thus its removal merely eliminated the exception and permitted the operation of the general standard; and (iii) the voters would likely have approved the measure without the exception because changes to ratesetting and regulation was an important element of the ballot initiative. 48 Cal. 3d at 821-22.
The severability of the allegedly unconstitutional provisions of the MCLE statute fall squarely within the Calfarm Ins. Co. rule. The first subsection of section 6070 establishes the continuing legal education requirement, setting forth the standard that all "active members of the State Bar" shall complete the required continuing legal education. Cal. Bus. & Prof. Code ' 6070(a). Subsection (c) sets forth exceptions to that general standard for retired judges, officers and elected officials of the State of California, fulltime professors at accredited law schools, and full-time employees of the State of California acting within the scope of their duties. Cal. Bus. & Prof. Code ' 6070(c).
Just as in Calfarm Ins. Co., the exceptions to the general standard are separate and distinct provisions that can be removed without affecting the wording of the general standard. Also as in Calfarm Ins. Co., removing the exceptions to the general standard merely eliminated an exception and permits the operation of the general standard. Because subsection (c) provides only for several exceptions to the more general classification of lawyers subject to MCLE requirements, the removal of those exemptions merely eliminates the exceptions, permitting the general standard set out in subsection (a) ("active members of the State Bar") to operate from the effective date of the program. The general standard stands on its own and is capable of independent and separate applications.
Finally, the remainder of the statute, after severing the exemptions, would likely have been adopted by the California Legislature had it foreseen the possible invalidity of the exemptions because the statutory scheme, as left following severance of the arguably unconstitutional provisions, fully effectuates the stated purpose of the bill. The manifest legislative intent embodied in the MCLE bill was to establish a mandatory continuing legal education requirement for lawyers practicing in the State of California in order to improve the competency of lawyers and to provide consumer protections for consumers of legal services. To invalidate the entire program due to the exemptions would thwart that fundamental purpose. The exemptions are not essential to the statute's purpose and structure.
Nothing in the legislative history suggests that the exemptions were the subject of legislative debate over the merits of the legislation, or were so critical to the passage of the legislation that the statute would not have been passed in their absence. Indeed, the legislative history indicates that the legislature was primarily concerned with the competency of lawyers in the State of California and with the protection of consumers. Senate Rules Committee for Third Reading, Senate Floor Analysis (June 1, 1989) (stating purpose of bill is "to improve the quality of legal representation in California through mandatory continuing legal education"); Senate Committee on the Judiciary, Bill Analysis (May 23, 1989) ("The purpose of this bill is to improve the quality of legal representation in California through mandatory continuing legal education"); Senate Committee on the Judiciary, Background Information for SB 95 ("What problem or deficiency under current law does the bill seek to remedy? [Answer:] Dumb lawyers"); Assembly Committee on Judiciary, Worksheet (purpose of bill is to "provide the requirement for continuing legal education for practicing attorneys. ... By providing continuing legal education, attorneys will be able to give more efficient representation and will be reminded of the pitfalls that sometimes lead to inadvertent discipline and possible malpractice suits"); Assembly Committee on the Judiciary, Republican Analysis (September 1, 1989) (noting that the measure is a "consumer protection bill") ; see also Letter from Robert C. Fellmuth, State Bar Discipline Monitor, to Senate Committee on the Judiciary (May 23, 1989) ("It is clear that mandatory continuing legal education will have an important impact on the burden of the discipline system in the long run. . . . [T]here would be an eventual and likely significant ameliorating impact on discipline from a program as proposed in SB 905"); Letter from the Law Practice Management Section of the State Bar of California to Members of the Board of Governors and Board Committee on Professional Standards (April 20, 1988) ("The conclusion is evident: increase the competency of California lawyers in law practice management and the causes of malpractice claims will be reduced"); Stephen M. Blumberg, "Avoiding Malpractice," California Lawyer (June 1987) (stating that nearly all malpractice claims stem from law practice management problems and ethical violations, such as failure to calendar matters properly, failure to inform client about representation, suing a client for fees, inadequate knowledge of the law or facts, poor client relations, conflicts of interest, and failure to document a case).
"The test of severability is one based on reason," and it stands to reason that the California Legislature would still have favored the statute had it foreseen that the exemptions would be deemed unconstitutional. Thus, the statutory purpose was to adopt a mandatory continuing legal education program to meet the twin goals of improving the competency of lawyers and providing consumer protections to those who user legal services. Calfarm Ins. Co. v. Deukmejian, 48 Cal. 3d 805, 836-37, 258 Cal. Rptr. 161 (1989). It can be said with confidence that the legislature's attention was sufficiently focused on the general provisions of the MCLE program itself that it would have separately considered and adopted them in absence of the invalid exemptions. Gerken v. Fair Political Practices Comm'n, 6 Cal. 4th 707, 71415, 25 Cal. Rptr. 2d 449 (1993); Pala Band of Mission Indians v. Board of Supervisors of the County of San Diego, 54 Cal. App. 4th 565, 586-87, 63 Cal. Rptr. 2d 148 (1997); California Gillnetters Ass'n v. Dep't of Fish & Game, 39 Cal. App. 4th 1145, 1159, 46 Cal. Rptr. 2d 338 (1995); People's Advocate, Inc. v. Superior Court, 181 Cal. App. 3d 316, 332, 226 Cal. Rptr. 640 (1986).
This Court's decision in Kopp v. Fair Political Practices Comm'n does not compel a different result. Kopp did not fundamentally change severability principles. Rather, it confirmed that a court may reform a statute, rather than invalidate it, when the reformation "closely effectuates policy judgments clearly articulated by the enacting body" and "the enacting body would have preferred the reformed construction to invalidation of the statute." Kopp, 11 Cal. 4th 607, 660-61, 47 Cal. Rptr. 2d 108 (1995). Furthermore, although it is not clear that severing the unconstitutional exceptions here is "reforming" or "rewriting" the legislation, that question need not be reached here, because the two requirements set forth by Kopp are clearly met in any case.
As a preliminary matter, the question of continuing legal education is a matter peculiarly within the expertise of the judiciary, as it falls within this Court's jurisdiction over the admission and discipline of attorneys practicing in California. The questions presented by this appeal involve "an area in which this Court could claim both expertise and general authority." Id. at 676 (Werdegar, J., concurring). Even if reformation is required, this Court has sufficient expertise in the subject matter to draft an enforceable and practical law. Id.
Severing any unconstitutional exemptions will "closely effectuate the policy judgments articulated" by the Legislature in passing this measure. The stated purpose of the bill was "to improve the quality of legal representation in California through mandatory continuing legal education." Requiring previously exempted members of the State Bar to participate in the continuing legal education program will further effectuate this policy judgment.
Moreover, it is likely that the Legislature would have preferred the reformed construction to invalidation of the statute. As shown above, the Legislature was primarily concerned with the competency of lawyers practicing in California. The exemptions are not necessary to effectuate the purpose of the statute. Nothing in the legislative history of the measure suggests that the exemptions were critical to the passage of the measure that it would not have been passed in their absence.
Because the challenged exemptions are grammatically, functionally, and volitionally
severable, because severing the exemptions will closely effectuate the legislative purpose
of the statute, and because the Legislature would likely have enacted the legislation in
the absence of the exemptions in order to give force to the manifest purpose of the
legislation, the exemptions should be severed from the statute allowing the balance of the
statute to remain in full force and effect.
LACBA concurs with the general statements about the elements of the rational basis test set forth in the opening and reply briefs of The State Bar of California. The guiding principles, which LACBA wishes to amplify, follow.
"[I]n areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenges if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. ... Where there are 'plausible reasons' for Congress' action, 'our inquiry is at an end.'" FCC v. Beach Communications, 508 U.S. 307, 313-314, 113 S. Ct. 2096, 2101, 124 L. Ed. 2d 211 (1993) (emphasis added); Werner v. Southern California Associated Newspapers, 35 Cal. 2d 121, 216 P.2d 825 (1950) ("'[w]hen a legislative classification is questioned, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of existence of that state of facts,'" quoting People v. Western Fruit Growers, 22 Cal. 2d 494, 506, 140 P.2d 13, 20) (1943)); San Diego v. Brown, 19 Cal. App. 4th 1054, 1072-73, 23 Cal. Rptr. 2d 819, 829 (1994) (statutory classifications must be upheld where they "bear some rational relationship to a conceivable legitimate state purpose"). If the question is even "debatable," a proffered justification for the classification satisfies the rational basis test. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S. Ct. 715, 724, 66 L. Ed. 2d 659 (1981) These principles flow from the well-established rule that rational basis review "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993).
A classification made in economic legislation "neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity." Heller v. Doe, 509 U.S 312, 319, 113 S. Ct. 2637, 2642, 125 L. Ed. 2d 257 (1993); Mathews v. Workmen's Compensation Appeals Board, 6 Cal. 3d 719, 738-39, 493 P.2d 1165, 100 Cal. Rptr. 301, 314 (1972) ("'[E]very presumption is in favor of the validity of the statute; the decision of the Legislature as to what is a sufficient distinction to warrant the classification will not be overthrown by the courts unless it is palpably arbitrary and beyond rational doubt erroneous'"); accord Werner v. Southern California Associated Newspapers, supra, 35 Cal. 2d at 131. To prevail, therefore, a challenger must "negative every conceivable basis which might support" a legislative classification. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S. Ct. 1001, 1006, 35 L. Ed. 2d 357 (1973).
"[A] legislature ... need not 'actually articulate at any time the purpose or rationale supporting its classification." Heller v. Doe, supra, 509 U.S. at 320 (quoting Nordlinger v. Hahn, 505 U.S. 1, 15, 112 S. Ct. 2326, 2334, 120 L. Ed. 2d 1 (1992)). And, a state "has no obligation to produce evidence to sustain the rationality of a statutory classification." Id. at 320, 113 S. Ct. at 2643. Instead, a classification reflects "a legislative choice [that] is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data." FCC v. Beach Communications, Inc., supra, 508 U.S. at 315, 113 S. Ct. at 2102, accord American Bank & Trust Co. v. Community Hospital of Los Gatos-Saratoga, Inc., 36 Cal. 3d 359, 372, 204 Cal. Rptr. 671, 679 (1984) ("[i]t is not the judiciary's function, however, to reconcile the 'legislative facts' underlying a legislative enactment"); Werner v. Southern California Associated Newspapers, supra, 35 Cal. 2d at 134 ("'[w]e cannot cross-examine either actually or argumentatively the mind of ... legislators nor question their motives'") (quoting Goesaert v. Cleary, 335 U.S. 464, 46667, 69 S. Ct. 198, 200 (1948)).
A statutory classification survives the rational basis test notwithstanding that "'some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line,' and the fact the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration." United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 179, 101 S. Ct. 453, 461, 66 L. Ed. 2d 368 (1980) (quoting Mathews v. Diaz, 426 U.S. 67, 83-84, 96 S. Ct. 1883, 1893, 48 L. Ed. 2d 478 (1976)). Thus, it is well established that a classification is not irrational merely because a line has been drawn imperfectly so that it created a classification that is "to some extent both underinclusive and overinclusive." Vance v. Bradley, 440 U.S. 93, 108, 99 S. Ct. 939, 948 (1979).
A proper application of the foregoing standards leads inevitably to the conclusion that each of the exceptions created by the MCLE Statute and the MCLE Rules satisfies the rational basis test. It was, therefore, improper for the Court of Appeal to usurp the legislative function by second-guessing the classifications adopted in the MCLE statute.
After assuming that it is a worthy legislative goal to adopt a continuing legal education program to educate lawyers so that they will remain current in legal developments (Warden v. The State Bar, supra, 53 Cal. App. 4th at 520, 62 Cal. Rptr. 2d at 37-38), the Court of Appeal analyzed three statutory exemptions ostensibly to determine whether they were rationally related to this legitimate state interest. In so doing, however, the Court of Appeal did not look to whether "any reasonably conceivable state of facts ... could provide a rational basis for the classification[s]" (Beach). Nor did it accord the classifications "a strong presumption of validity" (Heller). And, it did not observe any of the following three dictates: a court need not find that the legislature actually articulated "the purpose or rationale supporting its classification," (id.) whether in the statute itself or in its legislative history; a court should not "'examine either actually or argumentatively the mind of ... legislators nor question their motives'" (Werner); and a court should not reject a classification merely because a line has been drawn imperfectly so that it is "to some extent both underinclusive and overinclusive." (Vance.)
The Court of Appeal found no rational basis for the classifications because it believed: none was articulated in the legislative history (53 Cal. App. 4th at 524, 62 Cal. Rptr. 2d at 38, 40); the exemptions were overinclusive and were adopted piecemeal (53 Cal. App. 4th at 524, 62 Cal. Rptr. 2d at 40); and there was no record evidence to support the view that the exempted classification lawyers would represent fewer private clients than nonexempt active members. 53 Cal. App. 4th at 525, 62 Cal. Rptr. 2d at 41. As we next demonstrate, these determinations reflect a faulty application of the controlling constitutional principles.
As the Court of Appeal acknowledged, the purpose of continuing legal education is to ensure that attorneys who are engaged in representing clients remain informed about developments in the law so that they can perform properly. Given this salutary purpose, it was within the power of the Legislature and this Court to identify both those categories of active practitioners for whom mandatory continuing legal education as prescribed by the State Bar was rational and those who rationally could be exempt. As the following discussion demonstrates, each exemption satisfies the rational basis test. That any particular exemption is unpopular or that a reviewing court believes other exemptions might also be justified is not part of the constitutional analysis. It is for the legislative branch to weigh the evidence presented by all interested parties and to make policy determinations. As stated earlier, LACBA disagrees with the policy determination that was made. But, so long as the legislative judgments were not "palpably arbitrary," they must be upheld by the judiciary. Whether such determinations are made wholesale or piecemeal by the Legislature is not significant to the principle that informs the constitutional analysis: judicial deference to legislative decision-making.
Several of the exceptions in the MCLE Statute and MCLE Rules involve attorneys employed by the State of California and the United States Government. Exempted are: retired judges (' 6070(c), Rule 6.1.1); officers and elected officials of the State of California (' 6070(c), Rule 6.1.2); full-time employees of the State of California acting within the scope of their employment (' 6070(c), Rule 6.1.4); and full-time employees of the United States Government acting within the scope of their employment (California Rule of Court 958(c); Rule 6.1.5).
Before turning to whether there are rational bases for each of these specific classifications, it is important to recognize that exempting governments from regulatory legislation is far from unprecedented. For example, prior to the adoption of the Congressional Accountability Act of 1995, 109 Stat. 4, 2 U.S.C.A. '' 1301-1438 (West 1997), Congress itself was exempt from the provisions of numerous federal, economic statutes that had been applied broadly for decades. These included the Fair Labor Standards Act of 1938 (29 U.S.C. '' 201, et seq.), Title VII of the Civil Rights Act of 1964 (42 U.S.C. '' 20003, et seq.), the Age Discrimination in Employment Act of 1967 (29 U.S.C. '' 621, et seq.), and the Occupational Safety and Health Act of 1970 (29 U.S.C. '' 651, et seq.).
Similarly, California's Proposition 65, Cal. Health & Safety Code '' 25249.525249.13 (West's Ann. Codes ), a broad environmental measure that prohibits persons "in the course of doing business" from discharging or releasing certain chemicals into water (' 25249.5) and requires that "[n]o person in the course of doing business" shall expose an individual to certain chemicals without first providing a specific warning (' 25249.6), specifically exempts governments from its requirements. ' 25249.11(d) (excluding "any city, county or district or any department or agency thereof or the state or any department or agency thereof or the federal government or any department or any agency thereof"). We are aware of no case in which, for equal protection reasons, any of these many statutes of general application was found suspect, much less invalid, merely because the government itself was excluded from the statutory requirements.
The Legislature rationally could have concluded to exempt state officers and elected state officials, many of whom are legislators and executives charged with adopting or enforcing the laws of this State. By virtue of performing their jobs, these attorneys can be thought to remain informed on developments in the law. It is legislators who in the first instance adopt new statutes; they also spend a substantial amount of time in hearings where testimony describes the law in particular areas and whether and how it should be changed. And, it is elected executives and state officers who are among those charged with the enforcement of new statutes. These persons, in many instances, also express views about, and testify whether, new or amended laws are appropriate. That such rational justifications for the Legislature's decision are present confirm that the Court of Appeal erred. Indeed, it applied the converse of the rational basis test by concluding summarily that "[t]he fact that a lawyer wins an election or is appointed to a state office does not mean that the lawyer is necessarily current in recent legal developments ." 53 Cal. App. 4th at 521, 62 Cal. Rptr. at 38. It is not for the judiciary to make a conclusory determination of such legislative facts. On the contrary, a court is to defer to the Legislature's analysis of the question unless it is palpably arbitrary and irrational.
In addition, elected officials and officers are public servants. They perform jobs that are demanding of their time. Accordingly, the Legislature rationally could have believed that the amount of time that would remain for the private practice of law is small. Therefore, the Legislature could have concluded that such persons could fairly be excused from the MCLE requirements without jeopardizing the goal of ensuring that private parties are represented by informed counsel. The Legislature also could have concluded that even if a few members of this group engage in some small amount of private law practice, they will do so in fields in which they are well qualified and about which they stay well informed through their state positions.
The Legislature rationally could have concluded that, as a group, retired judges could be safely excluded from the MCLE requirements while advancing the interests of the state and without risking injury to prospective clients. Thus, the Legislature could have believed that many retired judges could be expected to practice very little, if any, on behalf of clients. On the other hand, many might serve on assignment in the state courts, and others could elect to remain active members of the bar in order to serve as mediators, arbitrators or in other neutral roles. This work could have been deemed by the Legislature to provide a significant public service that would relieve burdens on otherwise crowded court dockets and advance and expedite dispute resolution. If retired judges were obligated to satisfy MCLE requirements in order to perform this service, some might forgo the opportunity to serve other than on assignment to state courts.
To the limited extent that retired judges practice before courts, the Legislature could have felt that they could bring the expertise of their years of judicial service to particular pieces of litigation. The courts and the public at large would benefit as a result. This benefit could be denied if retired judges elected not to engage in any private practice because to do so would require compliance with MCLE requirements. The Legislature also could have known that active judges attend numerous continuing legal education programs. This would have supported its view that, upon retirement, such judges would continue to remain current as warranted by their activities as lawyers.
The Legislature also reasonably could have concluded that, because judges spent time immersed in the details of various complex matters that came before them for decision, their work necessitated a constant effort to remain current on developments in the law. Thus, after the legislative branch adopts a law and the executive branch or the private sector seeks to enforce it through litigation, it is the judicial branch that interprets and applies the new legislation. Accordingly, the Legislature rationally could have concluded that retired judges would be sensitive to the need to remain current in areas of their practice, and would do so.
The Legislature rationally could have concluded that, in an academic setting, full-time professors are in institutions where lectures, publications and discussions frequently concern recent developments in all aspects of the law. Indeed, the Legislature could have believed that professors frequently would satisfy many of the core MCLE requirements through the time spent preparing their lectures, writing law review articles and books, and attending academic colloquia. See MCLE Rule 5.4 (MCLE credit given for teaching a law school class by multiplying the credit hours times 12); MCLE Rule 5.3 (MCLE credit given to speakers at educational activities with speaking time multiplied by four). In short, the Legislature could have decided that continuing legal education is the core function of law school faculties throughout the state.
Furthermore, the Legislature could have felt that full-time professors necessarily have less time to engage in the practice of law than practitioners. Accordingly, it would have been rational to believe that, as a group, law professors likely would practice, if at all, in the areas in which they teach, often as co-counsel with full-time practitioners. Because it is the office of a fulltime professor to remain current in his or her field of scholarship, there would be little risk that the exemption from MCLE would have any adverse effect on clients represented by a member of this group.
The Legislature also could have concluded that having fulltime professors involved in the judicial process is valuable. The objective and informed views of full-time professors can be of assistance to courts and clients alike. But, full-time professors might be dissuaded from participating at all, whether as authors of amicus briefs or as counsel to a party, if they were obligated to comply with MCLE requirements that are geared to those engaged actively in the full-time practice of law.
It would be rational for the Legislature to exclude from the MCLE requirements "[f]ulltime employees of the State of California, acting within the scope of their employment." Cal. Bus. & Prof. Code ' 6070(c); MCLE Rule 6.1.4. These exclusions are supported by several "conceivable" facts that "provide a rational bases for the classification." FCC v. Beach Communications, supra, 508 U.S. at 313-14.
Under the Separation of Powers doctrine, which underlies the constitutions of the United States and California, the Legislature could well have concluded that it did not wish to interfere with the supervision of the Executive and Judicial Branches, which together employ and supervise many attorneys employed by the State of California. Thus, the Legislature could reasonably have believed that it is more appropriate for the Executive and Judicial Branches to make their own determinations concerning the level and nature of continuing legal education necessary for the lawyers each employs.
The Legislature also could have concluded that, as suggested by several commentators, to subject state-employed attorneys to continuing legal education was unnecessary because there is a substantial amount of training that the State independently requires of its attorney-employees. See e.g., Letter of Arthur Danner III, County of Santa Cruz, to Assembly Committee on the Judiciary (July 14, 1989) (stating that the exemption for public sector attorneys makes sense because "the California District Attorneys Association has conducted training for prosecutors throughout its existence"). That this concept was considered is also confirmed by the terms of the statute itself, which make clear that "[n]othing in this section shall prohibit the State of California, or any political subdivision thereof, from establishing or maintaining its own continuing education requirements for its employees." ' 6070(c). Moreover, as cited in a number of comments on the bill, the Legislature could have concluded that attorneys for governmental entities would have to pay for continuing legal education out of comparatively low salaries. See, e.g., Letter of Gerald O'Hara, California Teamsters Public Affairs Council to Assembly Committee on the Judiciary (August 22, 1989). The Legislature may also have relied upon the concern expressed by several Senators that requiring state attorneys to attend continuing legal education would be granting those employees a benefit that should be negotiated. See Enrolled Bill Report, Office of Local Governmental Affairs.
To require that the state's constituent departments must train their employee-lawyers in a manner different than the decision-makers in these departments deem best, rationally could have been viewed as bad public policy that should be avoided. Similarly, the Legislature could have concluded that the statutorily-mandated training in an area such as law practice management would not benefit state-employed attorneys, including prosecutors, judicial research attorneys or law clerks, none of whom is engaged in private practice. It would be more productive for such attorneys to have internal training directed to their areas of specialization. In short, the State could have been viewed as a sophisticated "client" that could design and require appropriate training programs. Further, the State could have been viewed as being in a position to take appropriate responsive steps with respect to its employee-lawyers when failure to remain current results in unsatisfactory job performance. And, as the Court of Appeal acknowledged, under the MCLE Rules, a state lawyer is not exempt with respect to work performed outside the lawyer's work for the State. If the lawyer engages in private practice for other clients, the MCLE requirements apply and the clients are protected.
The state legislators, many of whom may have served as state-employed lawyers prior to the their terms in the Legislature, also could have concluded that, because many stateemployed lawyers practice in specialized areas of the law, their compliance with general MCLE standards was unnecessary. Further, because state-employed attorneys are involved in the day-to-day enforcement of the newly-enacted or modified laws of the State, they would have been seen as likely to be familiar with developments resulting from legislative and judicial actions.
This Court properly and rationally could have concluded through California Rule of Court 958(c) that federal government attorneys should be excluded from MCLE requirements. It long has been recognized that the Supremacy Clause (U.S. CONST. art. VI (federal laws "shall be the supreme law")) places restrictions on the application of state laws to instrumentalities of the United States. E.g., McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579 (1819) (supremacy clause prevents state tax on notes issued by the Bank of the United States); Sperry v. Florida, 373 U.S. 379, 385, 83 S. Ct. 1322, 10 L. Ed. 2d 428 (1963) (state cannot enjoin as unauthorized practice of law, the giving of patent advice by agents licensed by the U.S. Patent Office); Johnson v. Maryland, 254 U.S. 51, 5657, 41 S. Ct. 16, 65 L. Ed. 126 (1920) (employee of U.S. Post Office directed to deliver mail by truck and deemed competent by federal authorities cannot be convicted under state law for driving without a state license); Southland Corp. v. Keating, 465 U.S. 1, 104 S. Ct. 852, 79 L. Ed. 2d 1 (1984) (California statute nullifying certain arbitration clauses preempted by the Federal Arbitration Act). Further, as a matter of federal-state comity, state governments rationally can decide to avoid interference with the actions of the federal government.
To exempt federal lawyers reflects what could be deemed a rational decision to decline to attempt to direct the federal government on how it should ensure that its attorney-employees remain fit to fulfill their obligations to the federal government. That function rationally could be reserved to the federal government. See 28 C.F.R. Part 77 (1997) (Department of Justice rules regulating how federal attorneys may communicate with parties represented by counsel); 28 C.F.R. ' 77.12 (1997) (foregoing rules "preempt and supercede the application of state laws and rules ... to the extent that they relate to contacts by attorneys for the government ... with represented parties").
It would also be rational for this Court to recognize that federal lawyers receive ongoing continuing legal education through the federal departments with which they work. It was equally rational for the Court to conclude that, because federal attorneys practice in specialized fields, they could be excused from general MCLE programs. Instead, it would have been rational to assume that these attorneys remain up-to-date about developments in the fields in which they practice. Indeed, federal government attorneys could be seen as practicing at the forefront of such changes as they litigate issues in connection with recently-adopted federal statutes. It also would be rational to conclude that the "client" for whom full-time federal employees work the United States Government is in a position to design, specify and implement appropriate continuing legal education to serve its purposes and to take action where a particular employee's performance suffers from a failure to remain up to date.
The amici do not, as a policy matter, favor the exemptions set forth in the
MCLE Statute and the MCLE Rule. They will continue to oppose them in future
legislative or rule-making proceedings. The issue before this Court is different. Thus,
the MCLE Statute and the MCLE Rules satisfy the constitutional standards. Mandatory
continuing legal education is a significant benefit to attorneys and clients alike. The
program should be upheld so that it can continue to benefit attorneys and clients
throughout California.
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Respectfully submitted,
DATED: October 10, 1997.
BLANC WILLIAMS JOHNSTON & KRONSTADT, LLP
JOHN A. KRONSTADT
By: ____________________________
JOHN A. KRONSTADT
SIDLEY & AUSTIN
CATHERINE VALERIO BARRAD
By: ____________________________
CATHERINE VALERIO BARRAD
Attorneys for Amici Curiae
Los Angeles County Bar Association,
San Diego County Bar Association,
San Fernando Valley Bar Association,
Orange County Bar Association,
Sacramento Bar Association,
Women Lawyers Association of Los Angeles