Warden v. State Bar of California
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Warden v. State Bar of California |
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
vs. THE STATE BAR OF CALIFORNIA,
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No. S060702 |
APPELLANT LEW WARDEN'S REPLY
TO RESPONDENTS' OPENING BRIEF
On Review of Opinion of the Court of Appeal
First Appellate District, Division Five
Appeal From Judgment of the Superior Court
of the State of California, County of Alameda
Honorable Sandra L. Margules & James R. Lambden
| LEW WARDEN Tucson, Arizona 85749 Plaintiff and Appellant |
Appellant Lew Warden had been an actively practicing attorney and member of the State Bar of California since 1953. (CT 245: 8-20, 415:3-416:1.) In July, 1993, appellant, with 410 other members of the State Bar, was summarily suspended from practice by the Board of Governors of the State Bar for failing to complete 12 hours of approved study during the first year the State Bar's Minimum Continuing Legal Education program (herein "MCLE") was in effect. (CT 245:8-20, 415:3-416:1; 419:27-420:6, 421:5-16.)
Respondents and petitioners are the California State Bar, Lorna Maynard, an administrator for the MCLE program, and Carole Rossi, an attorney employed by the State Bar's Office of General Counsel, who, by appellant's allegations and proofs, fraudulently sidetracked his written protest challenging the constitutionality of MCLE so that the first scheduled suspensions of non-complying members would not be sidetracked. (CT 245:8-20,415:3-416:1.)
On May 2, 1994, appellant filed complaint in the Alameda County Superior Court (CT 1-12) alleging that MCLE, both as written and as applied, violated the due process and equal protection clauses of the state and federal constitutions. (CT 2:26-3:27, 4: 13-7:8, 7:21-8:5, 9:10-21.) Among other things, appellant sought damages under state tort law and the Federal Civil Rights Acts. (CT 10:7-14.)
Respondents moved the court for summary judgment and summary adjudication of issues. (CT 26-412.) Appellant made factual and legal opposition. (CT 414-546, 722-780.) The court made an order deciding all issues against appellant. (CT:783-785.) Appellant's motions for reconsideration and new trial were denied (CT 783-785, 838-840, 842-849, 908-909), judgment for respondents was entered (CT 811-812), and appellant filed timely notice of appeal. (CT 916-917.)
On March 13, 1997, the Court of Appeal, First Appellate District, Division 5, filed opinion unanimously holding that MCLE violated the equal protection clauses of the State and Federal Constitutions by "forcing some attorneys . . . who represent individual clients in private practice, and not others, to comply with the program for reasons having no rational relationship to a legitimate state interest". (Op, p. 32.) The court rejected appellant's other equal protection, due process, and damage claims. (Op, p. 32, fn. 27.) One justice filed a concurring and dissenting opinion in which he "concurred wholeheartedly" that the exemptions violated equal protection (Con/Dis, p. 1), but contended the court should strike the offending exemptions and save the program. (Ibid.)
Appellant made timely petition to this Court for review of so much of the Court of Appeal's decision as rejected his claims that he was denied due process of law and should be entitled to pursue his actions for damages on remand. Respondents also petitioned for review, contending that the Court of Appeal should should not have undertaken a "serious and genuine judicial enquiry" into the rationality of the exemptions and the state's interest in granting them. By order dated June 5, 1997, the Court granted respondents' petition for review and denied appellant's.
Respondents in Opening Brief (p. 8, fn 14) hopefully state that appellant's due process and damage claims are not before the court. However, this is not the case. In granting review, this Court did not limit the issues. Rule 29.2(a) expressly provides that the Court may review and decide any and all issues in the cause. Should appellant fail to raise these issues here so that this Court might dispose of them justly, a reviewing federal court will hold that they have been waived. Appellant does not waive these or any issues embraced by the cause below. We submit that for this Court to refuse to hear appellant's cause as presented herein would in itself constitute a denial of due process of law. (Marbury v. Madison (1803) 1 Cranch 137, 162-163, 178-180, 2 L.Ed. 60, 63; Barbier v. Connolly (1884) 113 U.S. 27, 31.)
A. Does the State Bar's MCLE program, as suggested by the California Legislature (Bus. & Prof. 6070), as authorized by this Court (Rule 958), and as promulgated by the State Bar, deny appellant and other members of the State Bar similarly situated the equal protection of the laws by exempting from MCLE's mandatory requirements each and all of the following classes of other members of the State Bar who may practice law to the same extent, in competition with, or as adversaries of, members of the State Bar who are not exempted from MCLE requirements:
1. Elected officers and officials of the State of California, including members of the Legislature?
2. Retired California judges?
3. Retired judges from other jurisdictions?
4. Professors of law schools accredited by the California State Bar?
5. Professors of law schools accredited by the American Bar Association?
6. Full-time employees of the State of California acting within the scope of their employment?
7. Full-time employees of the Federal Government acting within the scope of their employment?
8. Administrative Law judges?
9. Attorneys employed by the District Attorneys and Public Defenders of the several Counties of the State?
10. Such other members as administrators of the State Bar might choose to exempt upon a showing of "good cause", where there is no limiting definition of what constitutes "good cause"?
B. Where there is no question of the professional competency of appellant and other members of the State Bar similarly situated, is an act of the Legislature which abridges their rights to practice law and facially violates the equal protection clauses of the State and Federal Constitutions, subject to judicial review by the "strict scrutiny" test urged by appellant, the "serious and genuine judicial enquiry" rational relationship test applied by the Court of Appeal, or the "any conceivable statement of facts" test proposed by respondents?
C. Is the "rational relationship" test, derived as it is from the constitutional doctrine of separation of powers and mandating due judicial deference to the acts of legislatures, relevant to a rule of court promulgated by this Court pursuant to its traditional and constitutional authority to regulate attorneys who practice law in California?
D. Do the provisions of Bus. & Prof. C., sec. 6070, and Rule 958, granting the State Bar authority to suspend appellant and other members of the State Bar from practice for failure to comply with MCLE's study program, constitute an unconstitutional delegation of Legislative and/or Judicial power?
E. Did the State Bar, in suspending appellant, and other members similarly situated, from practice for insubstantial reasons, i.e., failure to comply with MCLE rules, deny appellant, and other members similarly situated, substantive due process of law?
F. Did the State Bar, in suspending appellant and other members of the Bar similarly situated from the practice of law for alleged failure to comply with MCLE rules without first affording a hearing, deny him and other members procedural due process of law?
G. Did the State Bar, in suspending appellant and other members of the State Bar similarly situated from the practice of law for failure to comply with MCLE rules, impose an excessive fine or cruel or unusual punishment?
H. Did the State Bar, in granting certain members of the State Bar similarly situated a compliance period of 36 months, while granting other members only 24 months, and yet other members including appellant only 12 months, within which to meet their initial MCLE requirements, and then suspending appellant and other members similarly situated from the practice of law at the end of the 12 month period for failure to comply with MCLE, deny him and other members similarly situated the equal protection of the laws?
I. Did the State Bar, in fixing different compliance periods and suspending appellant and other attorneys similarly situated after only 12 months instead of the full 36th month period suggested by Bus. & Prof. C. sec. 6070 and mandated by California Rule of Court rule 958, violate the express provisions of the statute and the rule?
J. Does appellant have actions for damages against the State Bar and the individual employee-defendants under the Federal Civil Rights Acts for fraud and deprivation of constitutionally guaranteed rights?
The events which precipitated this litigation occurred in 1993. Appellant, then 73 years of age, had been a practicing active member of the State Bar, in good standing and without censure, public or private, since 1953. (CT 245:8-20, 415:3-416:1.) In July, 1993, appellant, along with some 410 other members of the State Bar, was summarily suspended from practice by the Board of Governors of the State Bar for failing to prove that he had completed 12 hours of MCLE approved study by the end of the first year the program was in effect. (CT 419:27-420:6, 421:5-16.)
When appellant first became aware of MCLE in 1992 he had no knowledge of the program other than that all member of the State Bar would have three years within which to complete a study program of some kind. (CT 246:20-247:12, 247:12-16, 248:11-18, 249:718; see Bus. & Prof. C., sec. 6070 and California Rule of Court 958.) Because of his age and the imminence of his retirement, appellant planned to defer compliance on the assumption that he would either be retired or deceased before the three year compliance period expired. (CT 247:12-18, 248:7-10.) However, in the latter part of April, 1993, appellant received a notice from the State Bar, dated April 23, 1993, that he was in non-compliance and informing him that he would be suspended from practice if he failed to comply. (CT 251:24-252:9, 315:21-316: 368.) This untoward turn of events caused him to research the matter. (CT 249: 12-18, 252:10-21.) Appellant then became convinced that the program was unconstitutional, and resolved to either induce the State Bar to back off from its threat to suspend him from practice or to challenge MCLE's constitutionality in court. (CT 249: 23-24, 255: 17-24.)
On July 9, 1993, after several unsuccessful attempts to discuss the matter with the MCLE administrator who had written to him advising non-compliance and suggesting that he contact her, appellant wrote to her questioning the constitutionality of the program and protesting the threatened suspension. (CT 370-371, 418:18-419:2.) The record does not disclose just when the State Bar received appellant's July 9, 1993, letter, but it was undisputably established that it was in the hands of two MCLE administrators, respondent Lorna Maynard, her superior, Phyllis Culp, and and one of the State Bar's general counsel, respondent Carole Rossi, by July 16, 1993, in time for the Board of Governors to have acted upon it before ordering his suspension had the Board been made aware of the protest, it being established that appellant's delinquency was not reported to the Board until July 17, 1993, and that his suspension was not ordered until July 19, 1993. (CT 369, 372.)
Appellant was not able to establish when, if ever before he served his Claim of Damage, the Board of Governors was informed of appellant's protest, but, in answers to appellant's interrogatories, respondent Maynard disclosed that on July 16, 1993, she and her senior, Phyllis Culp, met in person, conferred telephonically with Rossi, and faxed Rossi a copy of appellant's letter of July 9, 1993. (CT 449:21-26, 450:12-16.) Thereafter, they falsified the record by Maynard sending appellant a letter, copy to Rossi, dated July 23, 1993, 4 days after the Board's order of suspension, and 7 days after they had in fact received appellant's protest, advising appellant that his questions concerning the constitutionality of MCLE were being referred to the State Bar's General Counsel for response, so phrasing the letter as to make it appear that such reference occurred on July 23, 1993, a full week after the reference in fact took place. (CT 373, 450:18-451:17.)
The State Bar's letter of July 23, 1993, is fairly construed as a representation that the State Bar would consider his letter of protest and would not suspend him from practice until the dialogue the first MCLE administrator had invited and appellant believed would take place was concluded. (CT 420:6-14.)
It is an inference from these circumstances for a trier of fact to determine that the purpose of respondents' deception was to make it appear that appellant's July 9th letter protesting the constitutionality of MCLE had not been received and considered until after the Board had already suspended him from practice. (CT 451:6-17.) It is also an inference for a trier of fact to determine that respondents acted thusly so that the suspensions scheduled for decision by the Board of Governors, which were the first had under the newly instituted program, might proceed without interruption due to the Board's having to give attention to appellant's protest, and for the purpose of protecting MCLE and their employments from appellant's constitutional challenge. (CT 451: 18-452:5.)
Appellant contends these unanswered facts and circumstances are sufficient to establish a conspiracy and fraudulent conduct, actionable under the Federal Civil Rights Acts, to deprive him of constitutionally guaranteed rights. (CT 451:18-452:5.)
It was not until October 22, 1993, over three months after appellant had been suspended on or about July 19, 1993 (CT 372), a month after appellant had written Maynard and the State Bar a second protest letter (CT 374-375), and two weeks after appellant had served the Board with his Claim of Damage (CT 424: 22-25) and his challenge to MCLE's constitutionality and the State Bar employees' misconduct could no longer be concealed, that the State Bar's General Counsel (Rossi) replied to appellant's July 9, 1993, initial letter of protest. (CT 376-377, 419: 10-19.)
No hearing, formal or otherwise, was afforded appellant by the State Bar, either before or after his automatic suspension. (CT 419:27-420:5,) MCLE rule 14.2 expressly provides that no hearing is necessary. (CT 418:27-418:1; cf. Bell v. Burson (1971) 402 U.S. 535, 539; Conway v. State Bar (1989) 47 Cal.3d 1107, 1113.)
Appellant also established that, as a part of its enforcement practices, the State Bar causes courts to believe that members suspended for MCLE violations have been disbarred. At a point of time not disclosed by respondents, the State Bar sent notices of appellant's suspension, along with the names of some 412 other members suspended for the same reason, to some 588 different courts and bar associations. (CT 421:5-17.) No rule authorized this incredible procedure. (CT 422:7-11.) Equally credibly, the names of the attorneys suspended for MCLE deficiencies were set forth on a form which included the names of other attorneys who had been disbarred or otherwise disciplined by order of the Supreme Court. (CT 448:16-22; RT 09/14/95, 20: 10-21:10), a circumstance which led a Federal District Court judge to believe that appellant had been disbarred. (CT 257:8-18; 453:24-454:14.) This latter incident caused appellant great humiliation and embarrassment. (CT 454:15-19; cf. RT 09/15/95, 20:10-21:10.)
No order issued from this Court--the sole body authorized to suspend, disbar, or otherwise discipline members of the State Bar--directing that such action be taken against appellant and other lawyers similarly affected. (CT 264:4-12.)
Keller v. State Bar (1989) 47 Cal.3d 1152, 1160.
In re Shattuck (1929) 208 Cal. 6, 12.
Appellant contends that this smear to his reputation, and the reputations of all other California attorneys similarly affected, is actionable and sincerely believes should be expressly repudiated by the Court.
United States v. Lovett (1946) 328 U.S. 303, 314.
Marriage of Flaherty (1982) 31 Cal.3d 637, 652-653.
Endler v. Schutzbank (1968) 68 Cal.2d 162, 177-178.
It is apparent from the State Bar's opening brief that it is more interested in saving a hypothetical, unarticulated and undefined "baby" than it is in saving the "bathwater" by attempting to justify MCLE's obvious multiple constitutional defects. But just what is the "baby" the State Bar is so anxious to preserve? Only two candidates come to mind: (1) the large and expensive bureaucratic apparatus the State Bar has erected to administer the program and (2) the costly private "provider" enterprises, the best of which were well-attended prior to MCLE and which now, due to the rush of entrepreneurs to partake of the bonanza, have a degree of uncertain prosperity. (Cf. the Court of Appeal's cogent comments on the disparate and bizarre provider offerings approved by the State Bar for MCLE credit. Op., p. 29.) It is questionable if either "baby" constitutes a "governmental interest" justifying these invasions of basic constitutional rights.
By the nature of this case this Court appears to have three general options for its disposition: (1) to reject this appeal in its entirety and pass the constitutional issues on to the federal jurisdiction; (2) to declare the program unconstitutional on one or more of the grounds raised by appellant, with a recommendation that the State Bar propose a constitutionally correct rule to the Court or the Legislature; or (3) to somehow or other supervise the cobbling of a rule which would comply with Equal Protection and Due Process standards and at the same time allow the bureaucracy to endure in its present form.
Unless we completely misread the State Bar's brief, we believe it is pressing for the third alternative.
However, appellant believes that in this era where the ability of the people to pay for the staggering multitude of governmental enterprises is of major public concern, it is appropriate to rethink such matters as the efficiency of or even need for a particular bureaucratic apparatus. As we have learned to our sorrow, once in place, a bureaucracy takes on a life of its own and does not readily surrender its perquisites and powers. Another factor, which we assume is of no small significance to the Court, is the degree to which the Court wishes to expend its valuable and limited resources attending to the State Bar's tumultuous affairs.
Although the State Bar has not considered or prepared any studies determining whether exempted members are more competent, knowledgeable, or current in legal ethics, office management, the law, or the obligations and standards of the profession than nonmembers, or whether the program has improved the competency of non-exempt members (CT 438:22-439:5, 439:17-440:10), we now have the experiences of over a hundred thousand California lawyers for the past 5 years to draw upon. And, in view of the ostensible self-governing character of the State Bar, it would seem entirely appropriate that this Court, should it deem the program unconstitutional in significant particulars, should so declare and remand it to the State Bar for further study and in-put from the membership before returning to this Court for approval of another rule.
At no time has appellant raised any objection to the concept of continuing legal education per se. However, although the obvious unconstitutional elements of this program and the remedies appropriate to appellant are the sole legal issues presented by this appeal, appellant, and doubtless many other California lawyers, hopes that this Court, as the nominal author of the rule and its ultimate administrative authority, should it decide to not refer the matter back to the Legislature, will take the occasion to direct the State Bar to produce a truly effective and constitutionally correct program which will provide a reasonable measure of benefit to the public at a minimum of expense and burden to California lawyers and their clients. (Cf., the program for physicians noted by the Court of Appeal, Op, p. 29, fn. 24, or the more familiar procedures followed by the Department of Motor Vehicles for the periodic relicensing of California drivers suggested by appellant in his complaint. CT 8:13-9:8.) Appellant sincerely believes, and many California lawyers agree, that the present program, irrespective of its constitutional deficiencies, is a grossly overblown, inefficient and costly imposition upon the lawyers of this state and their clients, a Potemkin Village monument to the concept of political correctness which does nothing to serve the public interest, and which, in fact, on occasion has threatened major harm to the administration of justice and the people of this State. (Cf. People v. Ngo (1996) 14 Cal.4th 30.)
Despite the depth and cogency of the Court of Appeal's analyses of the want of rational bases for or state interest in the discriminations it considered and the limitations on its power to "save" MCLE by simply striking those exemptions, we agree with the State Bar that the Legislature merely directed the State Bar to "request" the Supreme Court to authorize a CLE program. (Bar PetRev, pp. 20-22; OB 23.)
We might suppose the Court of Appeal took this approach out of deference to this Court, or because it lacked the authority to directly invalidate a rule of the Supreme Court, or on the assumption that this Court, in enacting Rule 958, had merely acceded to the State Bar's desires and the Legislature's "request" by deeming it a legislatively mandated program. But whatever considerations guided the Court of Appeal's approach to review of this rule and the State Bar's conduct, it is clear that this Court had the ultimate authority to write the enabling rule de novo irrespective of the Legislature's or the State Bar's wishes. And it ineluctably follows that this Court has plenary authority to review its own rule for constitutionality, necessity, wisdom, reasonableness, effectiveness or alternatives to the modes of compliance and enforcement.
In California, the power to regulate the practice of law reposes exclusively in the California Supreme Court.
Santa Clara County Counsel Attys Assn. v. Woodside (1994) 7 Cal.4th 525, 542-543.
Saleeby v. State Bar (1985) 39 Cal.3d 547, 557.
Hustedt v. Worker's Comp. Appeals Bd. (1981) 30 Cal.3d 329, 336-337, 340.
Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 728, 731.
Brotsky v. State Bar (1962) 57 Cal.2d 287, 300.
See Conway v. State Bar (1989) 47 Cal.3d 1107, 1127-1129, Justice Kaufman's dissent, joined by Justice Mosk.
This Court's overriding plenary authority in mandating MCLE is complete refutation of the State Bar's contention that the Court of Appeal erred in its application of the "rational basis" test which, as the State Bar correctly points out--but without apparent recognition of the implications of its admission--is a rule derived from the separation of powers doctrine (Bar PetRev, p. 13; OpB, p. 13), a rule of judicial deference to the acts of the Legislature which has no relevance to this Court's power to review its own rules.
City of New Orleans v. Dukes (1976) 427 U.S. 297, 303.
Werner v. Southern Cal. etc. Newspapers (1950) 35 Cal.2d 121, 131.
Verreos v. City and County of San Francisco (1976) 63 Cal.App.3d 86.
Bus. & Prof. C., sec. 6070, by its express terms, is a "request" by the Legislature that the Supreme Court adopt a rule authorizing the State Bar to adopt and administer a mandatory continuing legal education program. The Supreme Court acceded to this "request", incorporating by reference the exemptions of the statute, adding an exemption for federal lawyers, and authorizing the State Bar to grant additional exemptions. (CT 426:1420, 431:14-432:14.) (N.B. We are uncertain if the federal lawyer exemption and the provision investing the State Bar with authority to grant additional exemptions were at the State Bar's request or were written into the rule by the Court sua sponte.)
Appellant submits that this Court's power to review its own rules regulating attorneys, as with its power to adopt them in the first place, is plenary, and not subject to any separation of powers restraints or rules of deference to legislative enactments. In short, under the circumstances of this case, this Court's sole obligation is to the state and federal constitutions. (People v. Longwill (1975) 14 Cal.3d 943, 951, fn. 4.)
California Rule of Court 958, among others, by reference to Sec. 6070, exempts the following classes of active members of the State Bar from compliance with the mandatory MCLE program: (1) elected officers and officials of the State of California, including members of the State Legislature, (2) retired California judges, (3) professors of law schools accredited by the State Bar or the American Bar Association, (4) full-time employees of the State of California acting with the scope of their employment, (5) district attorneys, and (6) public defenders. (N.B. Although the Legislature did not exempt district attorneys and public defenders from MCLE in so many words, sec. 6070(b) provides that "Programs provided by the California District Attorneys Association or the California Public Defenders Association . . . are deemed to be legal education activities approved by the State Bar or offered by a State Bar approved provider". Consequently, the State Bar, and ultimately this Court, has no educational control over these two classes of State Bar members who, thus, are effectively exempt from State Bar MCLE regulation.) Rule 958 added full time employees of the Federal Government acting within the scope of their employment to the list of exemptions (CT 432:1-2), and authorized the State Bar to grant additional exemptions (CT 349, 432: 3-4), a dubious delegation of power. (See Conway v. State Bar (1989) 47 Cal.3d 1107, 1120, fn 7.)
When the Board of Governors promulgated the MCLE rules, it deleted the "California" modifier of the sec. 6070 exemptions for judges, added Administrative Law judges to the list of exempt classes, and provided for other individual exemptions on showings of "good cause". (MCLE Rule 6, CT 357-358, 433:11-24.) No guidelines or definitions of what constitutes "good cause" were established. (Rule 6.2, CT 357-358; MCLE Guidelines, CT 363-364; CT 437:1-8.)
Finally, concluding the listing of exemptions, a State Bar committee, by an "interpretation" of MCLE Rule 6 (6.1.1), exempted from MCLE's burdens members of the State Bar who are retired judges of other jurisdictions. (CT 363, 435:17-24.)
All exempted members, except State and Federal employees and Administrative Law judges who are limited to practice law only within the scope of their employment (MCLE Rules 6.1.4, 6.1.5; CT 357-358), are authorized to practice law to the same extent as non-exempt members. (CT 426:21-27, 427:15-21, 428:10-15, 429:1116, 430:16-21, 432:19-23, 434:19-26, 435:17-25; 437: 9-21, 438:416.) All exempted members, except Administrative Law judges, commonly practice law in competition with or as adversaries of nonexempt members. (CT 438:11-16; RT 09/14/95, 10:16-25, 18:24-19:3.)
In their opening brief, respondents claim that "[t]here is no dispute between the parties" that the purpose of MCLE is "to maintain and elevate the educational levels of the state's lawyers and to protect the public from professional incompetence." (OB 1.) However, respondents take undue liberties with both appellant's contentions and the record. The plain language of the MCLE Rules and Regulations, Rule 1.0, is that
Continuing legal education is required of all active members of the State Bar of California not specifically exempted from this requirement to assure that, throughout their careers, California attorneys remain current regarding the law, the obligations and standards of the professions, and the management of their practices.
In his opposition to respondents' motion for summary disposition, appellant demonstrated how each such exemption granted by the Legislature, the Supreme Court, and the State Bar, was not rationally related to the stated objective of the MCLE program, i.e., to maintain the currency of California lawyers. (CT 426:21-431:7, 432:24-433:10, 434:27-435:8, 436:4-20; RT 09/14/ 95, 11:15-12:15.) Indeed, we submit, the concept of "currency", as well as the State Bar's new thought that the purpose of MCLE is to improve competency, is utterly inconsistent with exemptions based upon past education or experience. Whether that purpose is to maintain currency in law and ethics or to improve the level of competency of California lawyers, the problems of discrimination are essentially the same.
Each exemption, both in and of itself and, a fortiori, all exemptions taken in the aggregate, constitutes an invidious discrimination against appellant and other members of the Bar similarly situated, discriminations which are prohibited by the equal protection clauses of the Federal and State constitutions. (CT 438:17-21, 440:12-441:2, 444:11-18; infra, pp. CITE.)
As the Court of Appeal correctly noted, the State Bar did not produce any evidence purporting to show the purpose or the reasonableness of or the necessity for any of such exemptions, which in fact were politically inspired. (Op, pp. 11, 13-14; Con/ DisOp, p. 5; RT 09/14/95, 9:25-11:28; RT 11/22/95, 8:17-10:12.)
The State Bar attempts to mislead the Court when it contends that the exemptions were granted by the Legislature to serve what the Legislature found was a legitimate public purpose. In fact, the Legislature made no findings of public purpose for either the program or the exemptions, speculations of counsel for the State Bar to the contrary notwithstanding. Indeed, the State Bar knows full well--which the Court of Appeal could not know because the information is peculiarly within the knowledge and control of the State Bar and the State Bar failed to fairly advise the court--that the State Bar had acceded to the advice of its lobbyist that there was some political opposition to a program which applied equally to all California lawyers, and agreed to the submission of the legislation as enacted for the sole purpose of eliminating or reducing political opposition to the program.
Although the State Bar criticized the Court of Appeal for attributing "alleged improper motivation" (Pet/Rev. pp. 2, 4-5, 19-20, 24-25; see RT 09/14/95, 9:25-11:28; RT 11/22/95, 8:17-10: 12) for the Legislature's extensive exemptions, it omitted to advise the court of its own role in the matter. And while the information referred to below probably would not have been available to the Court of Appeal from its review of the legislative history documents, there is no doubt that the State Bar made a conscious political decision to invite the Legislature to authorize a program burdened with massive exemptions, rather than to stand its ground and afford the Legislature fair opportunity to authorize a program that was constitutionally correct. (We may reasonably conclude that the State Bar in doing so was motivated by a desire to have the bill passed before the rank and file of Bar membership, who, unlike the exempted groups, have no spokesman other than the State Bar, could develop organized opinion on the proposal.)
Thus, when the State Bar first proposed MCLE to the State Legislature, it was introduced by Assemblyman Harris in a form which had no exemptions. (Assembly Bill 2618.) But Senator David Roberti, then President Pro Tem of the State Senate, a powerful voice to be sure but still only one legislator, expressed a desire that State officials and employees be exempt. (Testimony by Larry Doyle, State Bar lobbyist, in arbitration proceedings in Brosterhous v. State Bar, a marathon litigation prompted by another of the State Bar's dubious adventures in politics and social engineering schemes which subsequently was visited by this Court in Brosterhous v. State Bar (1995) 12 Cal.4th 315 22.
Mr. Doyle testified:
The exceptions were the -- were the product of the legislative negotiation process. Essentially, there were decisions made that for the -- if the bill were to be enacted, it would have to be enacted with certain exclusions.
Mr. Doyle did not recall which particular exemptions were considered by the Board of Governors, but, he testified,
In most cases, we will discuss the prospects before hand with the members of the Board of Governors and let them know that this may be coming and if it does obtain their -- if it comes, what do we do? And in those -- that happened in a number of cases with Senate Bill 905. But not necessarily in all.
Mr. Doyle specifically recalled that the exemption for state employees went back to the Board of Governors for consideration:
That was one of the ones we discussed before the -- prospectively, as part of the issue. The Board of Governors knew very well that it was going to be coming because it was something that Senator David Roberti, Senate Pro. Tem. of the State Senate, had insisted upon relative to the predecessor bill, 2618, by Assemblyman Harris. So we knew Senator Roberti would probably be asking for the exclusion of all public employees from the provisions of the bill.
The proceedings of the Board Committee on Professional Standards and Admissions of the State Bar had on May 12, 1989, number 0018766-0018770 of the Brosterhous documents, record that Mr. Doyle, at the request of Chairman McDonnell, discussed the question of exempting "all government lawyers", and that "it was the sense of the Board Committee that, if it is required by political necessity in order to obtain MCLE legislation, the Board Committee does not object to exceptions being made to classes of members to be covered by the legislation . . . ."
We respectfully submit that the State Bar, whether as a responsible litigant represented by officers of the court, or as the "administrative arm" of this Court, should forthrightly concede the correctness of the Court of Appeal's conclusion that the exemptions from this program were driven by perceptions of political considerations in the minds of the State Bar's governing body, and not argue for a fictitious presumed rational basis on the part of the Legislature. And, if it does not choose to make such concession, we ask the Court to judicially notice the records of its own "administrative arm" per Evidence Code, sec. 452.
We submit that it is not seemly for the State Bar to advance positions which it knows are not true or to attack the Court of Appeal for its correct conclusion based upon a limited access to information held by the State Bar. The Court of Appeal's reference to the State Bar's failure to produce any declarations under penalty of perjury (Op, p. 16) was right in point. And, despite its attempt to divert attention from the truth of the matter by construing the Court of Appeal's comments as an attack on this Court's integrity (Pet/Rev, pp. 19-20; OB, pp. 3, 21) and its complaint that the court reached its conclusion without giving the State Bar opportunity to reply (Pet/Rev, pp. 23-24), the State Bar had ample opportunity to provide the court with MCLE's complete legislative history. It could have (a) fairly responded to the court's comments in oral argument, or (b) asked the court for leave to submit data on the question, or (c) petitioned the court for rehearing, none of which it dared or bothered to do.
The Court of Appeal completely demolished the State Bar's claim that the purpose of MCLE is to protect the public from lawyers who serve individual private clients by pointing out many of the classes of attorneys who are subject to the burdens of MCLE and who do not commonly, if ever, represent individual clients, e.g., lawyers employed by cities and counties, district attorneys, universities, colleges and school districts, banks and other corporations. (Op, pp. 15-16, 19, 28-30.) To which list can be added house and outside counsel for insurance companies, district hospitals, title companies, research attorneys for trial court judges (query clerks for appellate justices?), attorneys for municipal utility districts, public corporations, public defenders, and even attorneys employed by General Counsel for the State Bar. (CT 296:5-9, 449:12-20.) Further, the Court of Appeal correctly pointed out, there are lawyers who are members of the favored classes who in fact represent individual private clients in the same manner as non-exempt lawyers. (Op., p. 16; CT 437:9-438:16.)
Had the Legislature conducted hearings or floor debates, or made findings of Legislative purpose and the supposed public need which prompted its enactment of Bus. & Prov. 6070, there would be a factual basis to which the State Bar could repair for rational support its arguments. (E.g., American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 372-374.) But respondents do not contend that such events actually took place, and hence there is no basis or reason for this Court to extend due deference to the presumed wisdom of another branch of government; any "wisdom" implicit in this program sprang entirely from the State Bar's brow, a source to which this Court plainly is not required to defer by separation of powers or any other theory.
There is no evidence showing that MCLE, as the Court of Appeal noted, furthers its stated purpose of maintaining the currency of California lawyers in law, or enhances their competency. (Op, p. 14-15; cf. People v. Ngo (1997) 14 Cal.4th 30, 36-37.) The record herein shows that the State Bar has admitted that prior to the adoption of the MCLE program it did not consider any study tending to show a need for CLE, and that since the program has been in effect, it knows of no studies tending to show that MCLE has improved the competency of California lawyers. (CT 438:22-439:5, 439:17-440:10.)
The State Bar, for the first time, advances the stigmatizing argument that attorneys representing individual clients are more in need of continuing education than the exempted classes of attorneys. Which is to say, a priori--for the State Bar has no evidence to support this remarkable proposition--that the nonexempt members of the State Bar are less competent and less ethical than their more favored colleagues. (Cf. Heckler v. Matthews, 465 U.S. 465, 728, 739-740; Mississippi University for Women v. Hogan (1982) 458 U.S. 718, 725.)
Counsel for the State Bar supposes that it is reasonable to assume that law professors, retired judges, government attorneys and legislators are more knowledgeable in law and ethics than lawyers representing individual or institutional private clients. But, as the Court of Appeal pointed out, such suppositions are neither rational nor in accord with common experience. Unless the law schools have changed remarkably over the years, it is our recollection that the work of law school professors was more historical and analytical than detailed and current as required by competitive practice. Nor is there any reason to suppose that a retired judge coming from another jurisdiction is more knowledgeable in California law than any other individual passing the California Bar examination. And it certainly will come as a surprise to California lawyers practicing with mediators and retired judges that they are more knowledgeable in law than the lawyers who present their cases before them; what the retired judge brings to the table are his skills and experience in such matters as encouraging compromise, penetrating specious arguments of counsel, and arriving at dispositive decisions in an adversarial environment. And it is a dubious speculation indeed that a government lawyer is more knowledgeable in law and ethics than his privately employed adversary whatever programs and peer reviews the government lawyer may or may not have been exposed to.
The State Bar's elitist speculations brings to mind Justice Jackson's eloquent comments in Railway Express v. New York (1949) 336 U.S. 106, 112-113, and quoted with approval by this Court in Hays v. Wood (1979) 25 Cal.3d 772, 786-787:
I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of the regulation. This equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there
is no more effective guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing so opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.
Justice Jackson further commented (336 U.S. 115):
As a matter of principle and in view of my attitude toward the equal protection clause, I do not think differences of treatment under law should be approved on classification because of differences unrelated to the legislative purpose. The equal protection clause ceases to assure either equality or protection if it is avoided by any conceivable difference that can be pointed out between those bound and those left free. This Court has often announced the principle that the differentiation must have an appropriate relation to the object of the legislation or ordinance.
Assuming, arguendo, that the rational relationship test is applicable at all, the State Bar, by claiming that the Court is obliged to accept any speculation offered by counsel, has reduced it to the absurdity that it, in reality, is no test at all. Which is why the State Bar is offended by the Court of Appeal's view that it should conduct a "serious and genuine judicial inquiry"? We submit that the State Bar has totally ignored the "reasonable" component of the test's " reasonably conceivable basis" for the discrimination, as well as the requirement that there be a "rational relationship" between the discrimination and a "legitimate governmental purpose".
Because we are concerned with the scope of review by California courts of California statutes and rules, and because we are confident that the United States Supreme Court would regard appellant's vested right to practice law as a fundamental right mandating strict scrutiny of these manifestly discriminatory statute and rules, we will not respond to the State Bar's selective attributions to federal decisions concerning the parameters of the rational basis test other than to compare the State Bar's contentions with Nordlinger v. Hahn (1992) 505 U.S. 1, 11, where the Court stated that there should be a "plausible" policy reason for the classification, and that the relationship of the classification to its goal must not be "not so attenuated as to render the distinction arbitrary or irrational". It is California precedent which controls this particular issue and extended analysis of the federal decisions would unduly detract from the time available to appellant to discuss the relevant issues of this case.
Mathews v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 719, 730, 738, relied upon by the State Bar (OpB, p. 14), said:
[T]he Constitution does not require uniform treatment, only a reasonable basis for the legislative classification. [Citation.] It is the duty of the Legislature to determine whether the facts justify such a classification and the burden of the challenger to show that the legislative conclusion is arbitrary.
Here, the Legislature made no fact findings relative to either the particular classifications or their relationship to a legitimate governmental objective. Because of the manner in which the State Bar managed the presentation of its proposed legislation, these subjects were never considered by the Legislature. The State Bar agreed to this particular grant of authority, exemptions and all, and the Legislature gave it what it asked for.
It is noteworthy that in Mathews the Court did not rely upon the claims of counsel, as the State Bar urges here, but rather reviewed other Legislative acts to find a "reasonable basis" for the classifications there at hand. (6 Cal.3d 738-739.)
Nor does American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 372, cited by the State Bar for its "any conceivable basis" argument (Op.Brief, p. 15), support the State Bar's extravagant claims. Indeed, the quoted language neither appears by express text nor by reasonable implication in American Bank & Trust, which upheld the periodic payment of medical malpractice judgments. Rather, the Court there pointed to the "numerous" legislative hearings, the Legislature's "thorough" investigation, and the express findings of the preamble to MICRA (36 Cal.3d 372-373) to find a rational basis for the discrimination.
In Werner v. Southern Cal. etc., Newspapers (1950) 35 Cal. 2d 121, 131-132, the Court said that where the discrimination is "actually and palpalpably unreasonable and arbitrary"--as the Court of Appeal obviously found it to be in the instant case-- the classification may be overthrown, that a "classification is reasonable . . . only if there are differences between the classes and the differences are reasonably related to the purposes of the statute", and that "a statute cannot be limited to a specific class without reason." Certainly these propositions cannot be considered by a court without its undertaking some kind of reasoned analysis, a "serious and genuine judicial inquiry".
Appellant has found no California case, and the State Bar has cited none, which holds that a court reviewing a palpably discriminatory statute must accept as rational bases the speculations of counsel which are inconsistent, irrational, or without a reasonable factual foundation, whether as determined by the Legislature or within the common knowledge of the court.
Indeed, the very definition of "arbitrary" refutes the State Bar's argument. Webster's Collegiate Dictionary (1946) defines "arbitrary" as "1. Depending on will or discretion; discretionary; as, an arbitrary decision. 2. Fixed or arrived as through will or caprice; decisive but unreasoned; as, too arbitrary as a critic. 3. Despotic; absolute; as an arbitrary ruler." In fine, a statement is arbitrary if one says it is true but it plainly is not.
Although appellant believes that because his 40 year vested right to practice law was a constitutionally protected "fundamental" right or interest, the Court of Appeal should have strictly scrutinized MCLE's numerous exemptions and the legitimacy of the governmental purposes they purportedly served, the cases are clear that where a statute does not even meet the less rigorous rational relationship test, the enquiry ends there.
Eisenstadt v. Baird (1971) 405 U.S. 438, 447, fn. 7.
Newland v. Board of Governors (1977) 19 Cal.3d 705, 711, fn. 8.
As the Court of Appeal correctly held, however the rational relationship test is phrased, a court's obligation under the rule is to conduct a "serious and genuine judicial inquiry". (Op., p. 9, citing Cooper v. Bray (1978) 21 Cal.3d 841, 848, and Newland v. Board of Governors (1977) 19 Cal.3d 705, 711.)
The genesis for this apt phrase seems to be Dorrough v. Estelle (5th Cir. 1974) 497 F.2d 1007, 1001, where the court, reviewing a number of Supreme Court opinions of the early 1970s (ibid, fn. 15), wrote:
Today, however, whatever it may have been in the past, the rational relationship standard is relatively strict. Recent Supreme Court cases teach that the test calls for a serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals.
Cooper v. Bray, supra, and Newland v. Board of Governors, supra, were approved by this Court at least as recently as Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 163, where the Court, in approving MICRA's $250,000 limitation on non-ecomonic damages in medical malpractice cases, carefully pointed out:
We have not invented fictitious purposes that could not have been within the contemplation of the Legislature [citing Brown v. Merlo (1973) 8 Cal.3d 855, 865] nor ignored the disparity in treatment which the statute in realistic terms imposes. (Id. at p. 862.)
In Fein, as in the other MICA cases, the Court plainly deferred to the Legislature because of the extended hearings and express findings the Legislature had made. Here, by way of distinction, the Legislature enacted the legislation the Board of Governors had, rightly or wrongly, requested. The Legislature merely gave the State Bar what it had asked for and made no independent policy or fact determinations.
The Court of Appeal plainly gave this case its serious and considered attention as required by the precedents of this Court. Yet the State Bar, for no better reason than that the court did not accede to its will, having arrogated to itself the power to request the Legislature to recommend massive violations of basic principles of equality and to deprive appellant and many other members of the State Bar of their most basic rights to gainful employment, now arrogantly accuses the Court of Appeal of having given "lip service" to its judicial obligations. Manifestly, the State Bar would prefer the courts to give "lip service" to the Constitution.
With the exception of the three classes of exemptions discussed by the Court of Appeal, the State Bar has made no effort to justify all such exemptions or to quantify the number of lawyers in each of the other favored classes. Instead, it has confined its rationalizations to the exemptions for legislators, law professors, retired judges and government lawyers, and has inconsistently sought to minimize the impact of even those. Thus, the State Bar has variously argued that "fewer" than 1% (p. 8), 5% (p. 6), .2% (p. 7), or 4.41% are exempt. (Pet/Rev pp. 6-8.) And, in opening brief, claims that the retired judges exemptions total "only 144 (.14%)", officers and elected officials total "48 (.05%)", and the law professors total 376 (.4%), and that "only" 1,408 nonexempt members have been suspended from practice to date. (OB, pp. 6-7.) Nor has the State Bar proffered any data on the numbers of lawyers in the remaining exempt classes, or who are employed by government agencies at the state and local levels who are presumed to have their own in-house training programs--programs which are completely outside the State Bar's control--or who practice in law firms which have their own in-house, and, thus, to some degree or other, less burdensome programs.
And understandably so, for when taken in the aggregate, the exemptions granted by the Legislature and the Supreme Court at the behest of the State Bar constitute the most massive, entirely unprecedented, and totally unjustifiable pattern of self-serving discriminations by members of government, in favor of themselves and other members of government--persons who, with the possible exception of law school professors, if we might be excused for reverting to 18th century modes of expression, may well be described as "the King's men"--that has ever been reported in American jurisprudence!
Nor does it satisfy that "only" appellant and 1407 other California lawyers have been barred from practicing their profession because of this constitutionally flawed program. We submit that it is a salutary article of our national faith that whenever the rights of one man is diminished, the rights of all men are threatened.
Appellant knows of no authority--and the State Bar evidently does not either, else it would have cited some--which supports the State Bar's implicit contention that the constitutionality of an invidiously discriminatory rule or statute is to be measured by the number of individuals who have acquiesced to its burdens or accepted its benefits. (Cf. Teachers v. Hudson (1985) 475 U.S. 292, 305.)
As this Court did in Hays v. Wood (1979) 25 Cal.3d 772, 791, the Court of Appeal found that there was no rational basis for the CLE exemptions involve here. (Op., pp. 13-14.) And the State Bar's attempt to justify "line drawing" which it imputes to the Legislature by characterizing the Court of Appeal's determination as "a dangerous" precedent misses the mark, for, in view of Hays v. Wood, supra, it not unprecedented, and hardly "dangerous" in any case. We submit that the State Bar's attack on such constitutional rights as equal protection and due process of law, and its contention that this Court should entirely abandon its most basic function (People v. Longwill (1975) 14 Cal.3d 943, 951, fn. 4) to "invented fictitious purposes" that could not have been, because they in fact were not, "within the contemplation of the Legislature" (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 163) to be the true dangers to our constitutional form of government.
While one might possibly concede that an intelligently crafted and uniformly applied MCLE program could, hypothetically, reasonably serve a legitimate governmental purpose by assuring the continued competency of all California lawyers, the present program, in exempting those lawyers who, as respondents now claim, "are less likely to engage in private practice or handle client funds" and "may be better trained and experienced" than their disfavored adversaries and competitors, falls far short of such objective. We do have reservations, however, whether a mandatory CLE system is needed because the legal system is so laden with disincentives to professional incompetency, the court system is so structured as to minimize injuries to the public resulting from incompetency, and the competitive nature of the profession is such as to compel an actively practicing lawyer to remain reasonably current in the law applicable to his area of practice. Certainly the marginal competency of any group of California attorneys ought not be presumed.
Indeed, it is remarkable that the State Bar devotes only two pages of its brief in attempting to rationalize MCLE's unprecedented favoritism, and even then discusses only 3 of the 10 distinct classes of favored members of the State Bar, but instead devotes the vast bulk of what surely must be regarded as an important brief, railing against appellant and at least two justices of the Court of Appeal whom the State Bar perceives to be in conspiracy to "accomplish the destruction of an education system". (OB, pp. 29-30.)
The Court of Appeal did not question that a properly constituted CLE program could be in the public's interest or consider that the educational programs mandated by the State Bar may not in fact serve that interest. However, as discussed by the Court of Appeal in rejecting the State Bar's claim that the exemptions were justified because the non-exempt attorneys served individual clients, the court suggested that, if uniformly applied, the exemptions of attorneys who did not represent individual clients might be justified. (Op, 11, 15-16.) We respectfully disagree with this hypothetical conclusion and think this Court should do likewise.
We submit that it is the reductio ad absurdism of elitism to presume that the lawyers of this State who represent individual clients are less knowledgeable, less dedicated, or less ethical than those lawyers who serve governmental and private institutions. And if one might get the impression, such as from the State Bar's reporting of discipline imposed on errant attorneys, that only lawyers who represent individual clients do not meet acceptable standards, one should also consider that governmental institutions may well have less public methods of dealing with unacceptable professional standards of their employees.
Appellant respectfully submits that the question of professional competency ought to be exclusively the business of the courts, and not driven by theoretical notions of political correctness or expediency. We submit that this Court and the lower courts of this State have a profound interest in maintaining the competency of all lawyers practicing law in this state, particularly those who appear before the courts. We submit that the courts not only are or should be invested with the authority to deal with incompetent or unethical lawyers, but they are in the best position to observe breaches of minimum competency and ethical standards. Thus, a rational MCLE program might be triggered by judges and justices, following appropriate procedural devices, ordering deficient attorneys to pursue designated study programs.
As to the wholesale exemption of government lawyers, this Court pointed out in People v. Ngo, supra, p. 37, that it is not reasonable to suppose that the Legislature would "have exposed the state to incompetent representation by its own in-house counsel." Ergo, the effect of MCLE on professional competency is, at best, minimal.
But even if the Legislature and the employers of the other classes of exempt attorneys do not care if their counsel "remain current" in the law, the courts before whom ill-prepared, poorly informed, or ethically insensitive counsel appear, surely have a deep and abiding interest in their currency in law and ethics. Unprepared or ethically indifferent lawyers inevitably either waste the court's time, jeopardize their client's interests, or, consciously or otherwise, lead the court into error, and surely plague their adversaries. And it should not be supposed that because an attorney represents the State of California, or is a retired judge or a law school professor, such exempted attorney is more knowledgeable in the immediate matter before the court or more attentive to legal ethics than his non-exempt adversary.
Indeed, because of the enormous powers they wield, the expense and procedural obstacles to review of their actions, and the deference the reviewing courts extend to their determinations, the public is particularly vulnerable to government lawyers and administrative law judges who may not be up to speed on or indifferent to the various legal principles applicable to their fields of endeavor. Hence, their exemption is of particularly dubious rationality from the points of view of the publics they serve and the courts who review their processes.
Classifications which "impinge upon the exercise of a fundamental right" or a "fundamental interest", are "presumptively invidious". In such a case, the State must "demonstrate that its classification has been precisely tailored to serve a compelling governmental interest."
Plyler v. Doe (1981) 457 U.S. 202, 216-217.
Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 16-17.
In re Antazo (1970) 3 Cal.3d 100, 110-111.
Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578-579.
Article I, Sec. 1, of the California Constitution provides:
All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
This Court has often held that the right of an individual to practice his profession, once established, is a "fundamental right" entitled to constitutional protection:
Unterthiner v. Desert Hospital Dist. (1983) 33 Cal.3d 285, 294-296: A physician's right to be admitted to a hospital is a "fundamental right" protected by the Due Process clause.
Anton v. San Antonio Community Hospital (1977) 19 Cal.3d 802, 823: A physician's hospital privileges are a "vested fundamental right" protected by the Due Process clause.
Weber v. City Council of Thousand Oaks (1973) 9 Cal.3d 950, 958: ". . . if the statutory scheme imposes . . . a classification which infringes on a fundamental interest, such as the right to pursue a lawful occupation . . . the classification must be closely scrutinized and may be upheld only if it is necessary for the furtherance of a compelling state interest."
Bixby v. Pierno (1971) 4 Cal.3d 130, 143: "By carefully scrutinizing administrative decisions which substantially affect vested, fundamental rights, the courts of California have undertaken to protect such rights, and particularly the right to practice one's trade or profession, from untoward intrusions by the massive apparatus of government."
Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 579: ". . . the state may not arbitrarily foreclose to any person the right to pursue an otherwise lawful occupation. Any limitation on the opportunity for employment impedes the achievement of economic security, which is essential to the pursuit of life, liberty and happiness; courts sustain such limitations only only after careful scrutiny."
Endler v. Schutzbank (1968) 68 Cal.2d 162, 169-170: ". . . the Fourteenth Amendment protects the pursuit of one's profession from abridgment by arbitrary state action. We therefore begin with the settled proposition that a "[s]tate cannot exclude a person from . . . any . . . occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment." [And, at 68 Cal.2d 169, n. 4:] It has long been recognized that the `right to follow any of the common occupations . . . is . . . a large ingredient in the civil liberty of the citizen.'"
Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 75: "The right to practice one's profession is sufficiently precious to surround it with a panoply of legal protections."
Hallinan v. Committee of Bar Examiners (1966) 69 Cal.2d 447, 452, fn. 3.
See Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 309, citing Lerner v. Los Angeles City Board of Education (1963) 59 Cal.2d 382, as involving the "fundamental right of the pursuit of one's profession."
See Keller v. State Bar (1989) 47 Cal.3d 1152, 1183 & fn. 7, concurring opinion by Justice Kaufman joined by Justices Panelli and Agliano that the practice of law is a "vested fundamental right".
We respectfully submit that this Court should recognize the views of over 50 of its brethren and squarely hold that the right to practice law, once established, is a "vested fundamental right" fully protected by the due process and equal protection clauses of the State Constitution.
The right to engage in "the common occupations of life" is protected by the Fourteenth Amendment of the federal Constitution as a "liberty". (Meyer v. Nebraska (1923) 262 U.S. 390, 399-400.) See Moore v. East Cleveland (1976) 431 U.S. 494, 503 & fns 10-12, for other modes of expressing the bases for "heightened solicitude under the Equal Protection Clause", e.g., San Antonio Independent School Dist. v. Rodriquez (1973) 411 U.S. 1, 33-34, "explicitly or implicitly guaranteed by the Constitution"; Duncan v. Louisiana (1968) 391 U.S. 145, 149-150, n. 14, "necessary to an Anglo-American regime of ordered liberty".
The Court of Appeal misunderstood the historical bases relied upon by the Court in Supreme Court of New Hampshire v. Piper (1984) 470 U.S. 274, 280-281, in holding that the practice of law, once established, is a "fundamental right". The Privileges and Immunities Clause protects those "fundamental" rights, including the right to pursue a professional occupation, which inhered in the people at the dawn of our nation.
Corfield v. Coryell (CCED Pa. 1825) 6 F.Cas 546 (No. 3230).
Calder v. Bull (1798) 3 Dallas 386, 388.
Slaughter-House Cases (1872) 16 Wall. 36, 75-79.
That is to say, if the right to practice law then was "fundamental", it is now protected by the Privileges and Immunities Clause, and if it was among the privileges and immunities of the people when our nation was founded, it is a "fundamental right" now.
Nor are the cases upholding the practice of law as a "fundamental" right restricted to those dealing with the Privileges and Immunities Clause, as the Court of Appeal, accepting the State Bar's unsupported claim, concluded.
Thus, the right to work for a living is one of the "common occupations" extant when the federal republic was founded, is protected as a "liberty" under the Equal Protection Clause of the Fourteenth Amendment.
Butchers Union v. Crescent City Co. (1883) 111 U.S. 746, 762: "The right to follow any of the common occupations of life is an inalienable right; it was formulated as such under the phrase `pursuit of happiness'. . . ." (Concurring opinion by Mr. Justice Bradley.)
Gordon v. Committee on Character and Fitness (1979) 397 N.E. 2d 1309, 1312: "It is now beyond dispute that the practice of law, despite its historical antecedents as a learned profession somehow above that of the common trades, is but a species of those commercial activities within the ambit of the clause."
See also:
Barbier v. Connally (1884) 113 U.S. 27, 31.
Yick Wo v. Hopkins (1885) 118 U.S. 356, 370.
Allgeyer v. Louisiana (1896) 165 US. 578, 589-590.
Cf. Article I, Sec. 1, of the California Constitution, supra.
Other cases have found that the right to practice one's profession comes within the "liberty" and "property" concepts of the Fifth Amendment."
Green v. McElroy (1958) 360 U.S. 474, 492.
Lebbos v. Judges of Super. Ct., Santa Clara County (9th Cir. 1989) 883 F.2d 810, 818, squarely held that the right to practice law is a "liberty or property interest in pursuing `the common occupations or professions of life'" which are protected by substantive due process.
In Griswold v. Connecticut (1964) 381 U.S. 479, 486-499, in his concurring opinion, Justice Goldberg extensively discussed the considerations underlying a determination that a right is "fundamental".
See also:
Ex Parte Garland (1866) 4 Wall. 333, 379.
Schware v. Board of Bar Examiners (1956) 353 U.S. 232, 239, fn. 5.
Willner v. Committee on Character (1962) 373 U.S. 96, 102-103.
Baird v. State Bar of Arizona (1971) 401 U.S. 1, 8.
This, of course, does not mean that the practice of law may not be subject to regulation by the State. (Supreme Court of New Hampshire v. Piper, supra, pp. 283-284, fn. 16.) But it does mean that such right is entitled to receive "heightened solicitude" by the courts, and that governmental restrictions of that right should
be subject to "heightened review" standards under the Equal Protection Clause. (Nordlinger v. Hahn (1992) 505 U.S. 1, 10; Plyler v. Doe (1981) 457 U.S. 202, 217, fn. 11, "strict scrutiny".)
And this is entirely proper, for, as stated by Mr. Justice Frankfurter in his concurring opinion in Schware v. Board of Bar Governors, supra, 353 U.S. 247,
all the interests of man that are comprised under the constitutional guarantees given to "life, liberty and property" are in the professional keeping of lawyers.
It is the lawyers who represent individual clients, not the lawyers who represent the government, who traditionally--and necessarily so, for it has never been recorded that government lawyers have ever sought to minimize their clients' authority--have stood against the massive powers of the state bureaucracy. On this historical fact alone, the discriminations imposed by the State Bar must be disavowed by this Court.
The Court of Appeal (Op. 8-9) erroneously concluded that Lupert v. California State Bar (9th Cir. 1985) 761 F.2d 1325, 1327, had held that the right to practice law, as an already established profession, was not a fundamental right. But Lupert involved only the pre-admission pro. per. complaint of a party who had failed to pass the so-called Baby Bar examination required of students enrolled in schools unaccredited by the State Bar. Further, the court in Lupert did not make any enquiry into precedents for its conclusion other than to uncritically distinguish Supreme Court of New Hampshire, supra, on the ground that it was a Privileges and Immunities case.
Respondents also cite Giannini v. Real (9th Cir. 1990) 911 F.3d 354, 358, as its only other authority against appellant's contention that his right to practice law was a "vested fundamental right" entitled to full constitutional protection. But, peculiarly enough, the Court in Giannini cited Lupert as its sole authority and ignored its Circuit's previous holding in Lebbos v. Judges referenced above. Giannini also was a pre-admission action by an applicant who had failed the Bar examination.
Respondents, and the courts below have carefully avoided recognizing appellant's extended citation of authorities and arguments that his is a "vested fundamental rights" case and that these two 9th Circuit cases therefore are not in point irrespective of their lack of authority.
With the possible exception of the beginning years of an attorney's career when he is struggling to establish himself in his profession, the period of time immediately before retirement where his physical powers are at an ebb, are the most important to an attorney, particularly to those in solo practice who do not have institutional support for their last years when their income producing activities have ceased. Yet it is those attorneys, including appellant, who were the most vulnerable to the destruction of their income-producing abilities, against whom the State Bar, with its ukase, "comply or die", struck.
Ostensibly pursuant to its authority to "stagger", the State Bar created 3 classes of membership by alphabetical designation and gave each class different dates and time periods within which to meet their initial educational requirements. (MCLE Rule 3, CT 334-335.) The first class, i.e., members whose last names begin with the letters A to G, was given 36 months within which to complete 36 hours of approved study within a compliance period of between February 1, 1992, and January 31, 1995. (MCLE Rule 3.2, CT 335; 441:24-442:6.)
The second class, i.e., members whose last names begin with the letters H to M, was given 24 months within which to complete 24 hours of approved study within a compliance period of between February 1, 1992, and January 31, 1994. (MCLE Rule 3.3, ibid.)
The third class, i.e., members whose last names begin with the letters N to Z, was given 12 months within which to complete 12 hours of approved study within a compliance period of between February 1, 1992, and January 31, 1993. (MCLE Rule 3.4, ibid.) Appellant was in this third class. (CT 441:13-23.)
The effect of these classifications was to allow members in the more favored classes the right to practice law for a periods of two and one years more, respectively, than the least favored class before suspending them from practice for non-compliance. (CT 441:24-443:1.) Because of his age, then 73, and probable retirement before the 36 month period had expired, appellant, as were other members of similar age, was especially disadvantaged by this scheme because it collapsed his time for pre-retirement production of income. (CT 274:10-275:18, 300:9-20, 303:2-20; RT 09/14/95, 12:16-13:9.) We submit that although the practice of law per se may not be a suspect classification, age is, and this classification scheme plainly particularly disadvantaged appellant because of his age.
Respondents did not produce any evidence or argument purporting to show either the purpose of or the necessity for this particular classification scheme, which appellant contends violated the 36 month compliance period set by Bus. & Prof. 6070(a) and Rule 958. (RT 09/14/95, 14-18.)
Irrespective of the question of whether the discrimination discussed in the immediately preceding section rises to the constitutionally prohibited level, there can be no doubt that appellant and numerous other members of the State Bar were denied compliance rights which plainly were established by statute and rule of court. And, equally plainly, the State Bar had available other methods by which this program could be phased in, such as establishing three-year compliance periods keyed to birth dates, or requiring annual progress reporting so that the State Bar could track the program and make such logistic adjustments as might be necessary, or even to allow larger proportions of self-study time while provider facilities were expanded.
But whatever problems the "stagger" authorization was intended to meet--and the State Bar has never disclosed what those problems were--appellant, as were the other disfavored attorneys, plainly had been granted the right to perform 36 hours of study at any time within three years, right up to the last day before the 3 year period expired.
Although Sec. 6070 and Rule 958 required that suspensions for failure to comply with MCLE's myriad and trivial compliance rules (see People v. Ngo, supra, p. 34) should be according to rules adopted by the State Bar, the State Bar neatly sidestepped this requirement, and, in a style reminiscent of George Orwell's "1984", promulgated a rule that no hearing would be required because enrollment as involuntarily inactive is "administrative in nature." (MCLE Rule 14; CT 347, 445:14-18, 446:10-15.)
The State Bar produced no evidence or made any statements to show that suspension without prior notice or hearing was author even contemplated by either the Legislature or this Court or was reasonable or necessary to effect a legitimate state purpose.
Appellant's established right to practice law was a property right which could not be infringed upon without the State Bar having first afforded him due process of law. (Greene v. McElroy (1958) 360 U.S. 474, 492: The right to practice one's profession is protected by the Due Process clause. The property is his employment; the liberty is his freedom to practice his chosen profession.)
To enroll a member as inactive is to make it unlawful for him to practice law and is the same, in substance and effect, as suspending him from practice. (Conway v. State Bar (1989) 47 Cal. 3d 1107, 1111.)
At the time of appellant's suspension, the Legislature had provided for hearings for members the State Bar proposed to involuntarily enroll as inactive members for reasons other than failure to comply with MCLE. (E.g., Bus. & Prof. 6007(c), Rule 789, et seq. Bus. & Prof. 6049.1(b), Rule 800, et seq., and the State Bar Court system, which provide for hearings instituted by the State Bar against members for disciplinary reasons, was in place.
The State Bar did not produce any evidence or argument to show why such procedural safeguards, typical of due process procedures, were not incorporated into the MCLE program. Nor did the State Bar produce any evidence tending to show that the sanction of summary suspension, imposed upon appellant and other members of the State Bar similarly situated for failure to comply with MCLE, was reasonable or necessary to further the stated purpose of the program or any other state purpose.
Appellant, by his pre-suspension correspondence with the State Bar, plainly desired, and was entitled to have, a hearing on the question of the constitutionality of MCLE. (Coe v. Armour Fertilizer Works (1914) 237 U.S. 413, 424.)
It is common knowledge that only the California Supreme Court is constitutionally authorized to suspend or disbar attorneys, not the State Bar, and then only after meeting the mandates of due process of law, a proposition which this Court has, all too often, had occasion to emphasize in State Bar matters (e.g., Conway v. State Bar (1989) 47 Cal.3d 1107, 1127-1134; Keller v. State Bar (1989) 47 Cal.3d 1152, 1160; Saleeby v. State Bar (1985) 39 Cal.3d 547, 557.) Even in such a routine matter as suspension for failure to pay dues, it is the Supreme Court which issues the order of suspension, not the State Bar.
Thus we see no reason to impute such an obvious error to either the Legislature or this Court. Rather we think the decision to deny alleged MCLE violators basic due process hearing protections--especially in view of the State Bar's drastic sanction and outrageous broadcasting of notices thereof across the entire land to every court except the California Supreme Court-was calculated with shocking disregard for the rights of the lawyers of this State and the consequences to their clients, the courts, and the public. (Vide People v. Ngo, supra.)
The State Bar admitted that this procedure was followed for the purpose of coercing dissidents into compliance (CT 423: 20424:14), but we think "coercion" is too soft a term; rather, we believe it was done thusly in order to terrorize members into compliance.
The State Bar and its individual officers, agents and employees who conceived and executed this scheme ought to be held fully responsible for their outrageous conduct. They either were lawyers or had legal counsel immediately available to them and must be presumed to have had some knowledge of the one of this fundamental principle, the bed rock upon which our society is based. (Cf. Chalkboard, Inc. v. Brandt (9th Cir. 1989) 902 F.2d 1375, 1380: "This principle is so well established that reasonable [police] officers would have known of it.") Their conduct should neither be excused, nor glossed over, nor hidden from the light of day, but should be explicitly censured by this Court.
The State Bar's apparently unauthorized rule that no pre-suspension hearing is required because the suspension proceeding is "administrative in nature", not only is a non sequitur and contrary to procedural due process, it also, because of the extreme sanction of suspension, violates substantive due process standards. Substantive due process mandates that the state may not deprive one of life, liberty or property for arbitrary or insubstantial reasons. (Planned Parenthood v. Casey (1992) 505 U.S. 833, 846-851.)
While the State, in the interest of protecting the public welfare and morals, plainly is privileged to establish reasonable and uniform standards for the admission to and practice of a profession, its police powers are not unlimited.
Willner v. Committee on Character (1962) 373 U.S. 96, 102: A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment." Schware v. Board of Bar Examiners, 353 U.S. 232, 238-239. As the Court said in Ex parte Garland, 4 Wall. 333, 379, the right is not "a matter of grace and favor."
Certainly the failure to complete one hour per month of State Bar approved study, particularly in the absence of any showing of attorney-incompetency, or any of the several other alleged omissions which can trigger the State Bar's en masse and virtually automatic suspension sanction, must be considered trivial. (Cf. People v. Ngo, supra.) And equally certainly, compliance with a constitutionally correct CLE program could readily be enforced by considerably less drastic sanctions and procedures, such as orders to show cause and monetary fines.
The destruction of one's business for a relatively trivial offense violates the Excessive Fines Clause of the Eight Amendment (Alexander v. United States (1993) 509 U.S. 544, 558-559), and Article I, Sec. 17 of the California Constitution.
The sanction imposed on appellant and other members of the State Bar for failure to comply with MCLE, especially under the circumstances of this case, was unreasonable. The penalty simply did not fit the offense.
Appellant established without dispute that respondents' conduct had caused him to suffer monetary damages (CT 272:1-277:4, 385, 391:7-26, 416:3-5.) It also was undisputed that he had suffered humiliation and embarrassment from being characterized as a "disbarred" lawyer. (CT 257:8-18; 453:24-454:14-19; cf RT 09/15/ 95; 20:10-21:10.) In In re Marriage of Flaherty (1982) 31 Cal.3d 637, 652-652, this Court expressed concern that the sanctioning of an attorney for filing a frivolous appeal might "stain his personal and professional future". See also Wisconsin v. Constantineau (1970) 400 U.S. 433. 436-437; and Endler v. Schutzbank (1968) 68 Cal.2d 162, 180.)
Such facts are sufficient to establish a cause of action under 42 U.S.C. sec. 1983, of the Federal Civil Rights Acts.
Memphis Community School Dist. v. Stachura (1985) 477 U.S. 299, 305-307.
Wisconsin v. Constantineau (1970) 400 U.S. 433, 436-437.
Endler v. Schutzbank (1968) 68 Cal.2d 162, 177-178.
It is settled that a Sec. 1983 action may be heard in the California state courts. (Williams v. Horvath (1976) 16 Cal.3d 834; Brosterhous v. State Bar (1995) 12 Cal.4th 315.)
The fraudulent conduct by respondents in sidetracking his constitutional protests by respondents and depriving him of opportunity to have his complaints heard by the State Bar or the suspension action enjoined, is actionable under state tort law.
Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012.
Younan v. Equifax, Inc. (1980) 111 Cal.App.3d 498, 512-513.
Appellant prays the Court to find and order (1) that the State Bar's MCLE program, both as written and as applied to appellant and all other California attorneys similarly situated, violates the Due Process and Equal Protection clauses of the Federal and State Constitutions, (2) that appellant has viable causes of action for damages against all respondents under both State and Federal law, (3) that the State Bar be directed to send appropriate notices to each member or former member of the State Bar who has been suspended for MCLE violation, or their estates, and to all courts and bar associations and other entities to which it sent notices of suspension of appellant and other members for failure to comply with MCLE, advising that such notices were improvidently and misleadingly mingled with notices of suspensions or disbarments for disciplinary reasons or incompetency and may have been misconstrued by recipients as disbarment notices, with appropriate apologies by the Board of Governors to all affected members or their estates, and (4) that appellant's action be remanded to the Alameda County Superior Court for trial.
Respectfully submitted on August 19, 1997.
/s/ Lew Warden
Lew Warden, Appellant
in Pro. Per.