Friedman v. Gates

• Decision Date: 28 October 2019
• Docket Number: G057078
• Court: California Court of Appeals Court of Appeals
• Parties: JEROLD D. FRIEDMAN, Petitioner and Appellant, v. MICHAEL E. GATES et al., Respondents, CITY OF HUNTINGTON BEACH, Real Party in Interest.

JEROLD D. FRIEDMAN, Petitioner and Appellant, v. MICHAEL E. GATES et al., Respondents,CITY OF HUNTINGTON BEACH, Real Party in Interest.

G057078

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

October 28, 2019

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 30-2018-01016038)

OPINION

Appeal from a judgment of the Superior Court of Orange County, Robert J. Moss, Judge. Affirmed. Request for judicial notice. Denied.

The Animal Law Office and Christine Kelly for Petitioner and Appellant.

Brian L. Williams, City Attorney, and Daniel S. Cha, Deputy City Attorney for Respondents and Real Party in Interest.

* * * Petitioner Jerold D. Friedman is an attorney who graduated from a law school that is not accredited by the American Bar Association (ABA). He challenges the constitutionality of a provision in Huntington Beach's City Charter requiring that candidates for the elected position of City Attorney must have graduated from an ABA-accredited law school. The trial court found the provision constitutional and denied his petition for writ of mandate. For the reasons explained below, we affirm.

I.FACTS

A. Background Information on Law School Accreditation

The ABA is a voluntary bar association, and one of its many functions is to review, evaluate, and accredit law schools. "The ABA's process for evaluating law schools is extensive and involves many detailed standards for law school organization and administration, the educational programs offered, the faculty, admissions, the library, and the law schools' actual physical facilities." (In re Doering (2008) 275 Neb. 1004, 1010; see Staver v. American Bar Assn. (M.D. Fla. 2001) 169 F.Supp.2d 1372, 1374 [describing ABA's law school accreditation process].) "'Using these standards, law schools are inspected and, importantly, reinspected on an ongoing basis.'" (Florida Board of Bar Examiners ex rel. Barry University School of Law (Fla. 2002) 821 So.2d 1050, 1055.)

ABA accreditation is meaningful: ABA-accredited law schools "qualif[y] for federal student loans," and "many states require graduation from an ABA-accredited law school to become a member of the[ir] bar." (Whittier College v. American Bar Assn. (C.D. Cal., May 7, 2007, No. CV 07-1817 PA) 2007 WL 1624100, at *1.) All together, the ABA has accredited over 200 law schools, 21 of which are in California.

The California State Bar's Committee of Bar Examiners (CBE) also accredits law schools. In addition to the 21 ABA-accredited law schools in California,which the CBE deems accredited by virtue of their ABA-accredited status, the CBE has accredited 21 other law schools (CBE-accredited schools). Graduates of CBE-accredited schools may take the California bar exam, but not the bar exams in many other states.

Historically, graduates from ABA-accredited schools have enjoyed vastly higher passage rates on the California bar exam than graduates of CBE-accredited schools. For example, 54 percent of graduates of ABA-accredited schools in California passed the July 2016 bar exam, compared with only 13 percent of graduates of CBE-accredited schools.

B. The Huntington Beach City Charter

Real Party in Interest the City of Huntington Beach is a charter city. Its Charter, originally adopted in 1937, creates the elected position of City Attorney,¹ and it lists the position's various duties, which include: advising the City Council and City officers in all legal matters pertaining to their offices; prosecuting criminal violations of the Charter, city ordinances, and certain misdemeanors; representing the City in all litigation to which the City is a party; and preparing proposed ordinances and resolutions. The City Attorney also oversees the City's legal department.

Until about a decade ago, the Charter required prospective City Attorney candidates to be licensed to practice law in California and to have practiced law for at least three years. In 2009, however, the City Council appointed a commission to overhaul the Charter. The commission recommended a host of revisions, including updates to the eligibility requirements to run for the elected offices of City Attorney, City Clerk, and City Treasurer. Among other suggestions, the commission recommended revising the Charter to require City Attorney candidates and appointees to "havegraduated from a law school accredited by the American Bar Association." It also recommended adding a provision that "[i]f no candidate meets the qualifications for office of the . . . City Attorney, the City Council shall fill that position by appointment until the next municipal general election in which a qualified candidate is elected."

In a report discussing its recommendations, the committee explained: "The Commission considered making [the] three offices [of City Attorney, Clerk, and Treasurer] appointed, and is not recommending that change. However, with support from the three department heads currently serving in these positions, Section[s] 309-311 [of the Charter] have been modified to strengthen the qualifications for these offices."

The commission later sent a memorandum to the City Council explaining its recommendations further and addressing questions raised by the City Council. Among other matters, the memorandum explained: "Why were the qualifications for City Attorney, City Clerk, & City Treasurer changed? . . . [¶] Staff conducted a thorough survey of other cities with appointed or elected posts. HB's charter, which has not been updated in many years, contained relatively weak requirements for these positions, in comparison to other cities with elected positions. Furthermore, these positions have evolved to become more professional, and the holder of the post is a department head. Those who fill assistant positions just below the department head must meet significant professional requirements. The commission sought to improve the expectations for such an elected department head while avoiding the danger of reducing the available field. Management experience emerged as quite important because a department head is not a sole operator, and must supervise people some of whom may have greater professional qualifications than themselves." The committee's memorandum further explained: "If no qualified candidate was elected, . . . [a]n appointee would have to meet the same qualifications as those required of a person elected to the office."

Huntington Beach voters approved the proposed Charter revisions in the November 2010 general municipal election. As a result, the Charter now requires that "[t]o become and remain eligible for City Attorney the person elected or appointed shall, have graduated from a law school accredited by the American Bar Association," among other requirements.

C. Friedman's Attempted Candidacy

Friedman graduated from the University of West Los Angeles, which is a CBE-accredited law school, but not ABA-accredited. He was admitted to the California bar in June 2013. The record is silent on when Friedman graduated from the University of West Los Angeles or how many times he sat for the bar exam.

In 2018, Friedman decided to run for Huntington Beach City Attorney and submitted a "Qualification Affidavit for the Office of City Attorney" form to the City Clerk. In his affidavit, Friedman certified under penalty of perjury that he is a resident of and registered voter in Huntington Beach, is an attorney licensed in California, and has practiced law in California for at least five years. In the section of the affidavit where he was asked to certify he "graduated from a law school accredited by the American Bar Association," Friedman wrote: "[U]nconstitutional[.] [S]ee letter attached." Enclosed was a three-page letter from Friedman's attorney arguing the ABA-accredited-law-school eligibility requirement is unconstitutional.

That same day, Respondent Robin Estanislau, the City Clerk, sent Friedman a letter informing him she is bound to uphold the Charter and he cannot run for the City Attorney's office because he did not graduate from an ABA-accredited law school. Respondent Michael E. Gates ran and was elected City Attorney.

D. Procedural History

Friedman filed a petition for writ of mandate and complaint for declaratory and injunctive relief directly in the California Supreme Court, alleging the Charter'sABA-accredited-law-school eligibility requirement violates equal protection principles and constitutes an unconstitutional bill of attainder. Friedman asserted he has a fundamental right to run for and hold public office, and the eligibility requirement violates the state and federal equal protection clauses by invidiously discriminating against attorneys who did not graduate from ABA-accredited schools. The Supreme Court transferred the matter to this court for consideration, and this court in turn transferred the matter to the superior court to hold a hearing on whether Friedman is entitled to relief.

The trial court denied the petition. Citing Clements v. Fashing (1982) 457 U.S. 957 (Clements), the court first noted candidacy is not a fundamental right and found the City Attorney eligibility classifications "need only be drawn in such a manner as to bear some rational relationship to a legitimate state end." The court then reasoned "that the California State Bar, which regulates the admission of individuals to practice law in this state, recognizes the efficacy of the American Bar Association (ABA)'s requirements for law school accreditation, [and] exempted accredited law schools from certain requirements imposed upon state but not ABA accredited law schools. There is an objective correlation between a student's ability to pass the state bar examination...