Raffaelli v. Committee of Bar Examiners, S.F. 22841

CourtUnited States State Supreme Court (California)
Writing for the CourtMOSK; WRIGHT
Citation7 Cal.3d 288,101 Cal.Rptr. 896,496 P.2d 1264
Docket NumberS.F. 22841
Decision Date24 May 1972
Parties, 496 P.2d 1264, 53 A.L.R.3d 1149 Paolo RAFFAELLI, Petitioner, v. COMMITTEE OF BAR EXAMINERS, The State Bar of California et al., Respondents. In Bank

Page 896

101 Cal.Rptr. 896
7 Cal.3d 288, 496 P.2d 1264, 53 A.L.R.3d 1149
Paolo RAFFAELLI, Petitioner,
v.
COMMITTEE OF BAR EXAMINERS, The State Bar of California et al., Respondents.
S.F. 22841.
Supreme Court of California,
In Bank.
May 24, 1972.

Page 898

[496 P.2d 1266] [7 Cal.3d 290] Paolo Raffaelli, in pro. per.

Kenneth D. McCloskey, San Francisco, for respondent.

MOSK, Justice.

By this application for original writ, petitioner Paolo Raffaelli seeks to compel respondent Committee of Bar Examiners to certify him to this court for admission to the practice of law.

The sole ground upon which respondent has refused to certify petitioner [7 Cal.3d 291] is that he is not a citizen of the United States. The question for decision, accordingly, is whether the statutory exclusion of aliens from the practice of law in this state (Bus. & Prof.Code, § 6060, subd. (a)) constitutes a denial of equal protection of the law (U.S.Const., 14th Amend.; Cal.Const., art. 1, §§ 11, 21). In the light of modern decisions safeguarding the rights of those among us who are not citizens of the United States, the exclusion appears constitutionally indefensible. It is the lingering vestige of a xenophobic attitude which, as we shall see, also once restricted membership in our bar to persons who were both 'male' and 'white.' It should now be allowed to join those anachronistic classifications among the crumbled pedestals of history.

Petitioner is a 36-year-old native-born citizen of the Republic of Italy. In 1959 he entered the United States as an exchange visitor. At the completion of the exchange program he returned to Italy for a brief period, then reentered the United States on August 14, 1961. On that date, he avers, he took up residence in California with the intention of abandoning his foreign domicile and establishing his permanent home here. Admitted as a foreign student, petitioner was thereafter authorized to remain in the United States until his education was completed.

Petitioner entered San Jose State College, and graduated in June 1966 with a bachelor's degree in Industrial Relations and Personnel Management. He was then admitted to the School of Law of the University of Santa Clara, and graduated with a law degree in June 1969. In September 1969 he took and passed the California Bar Examination.

Since that time petitioner has been employed as a law clerk by a California law firm, and has married an American citizen. By reason of that marriage he was granted the status of permanent resident alien on September 5, 1971, and will be eligible for naturalization in September 1974.

I

The sole basis for respondent's refusal to certify petitioner to this court is Business and Professions Code section 6060, which provides in subdivision (a) that among the requirements for admission to the California State Bar an applicant must 'Be a citizen of the United States.' 1 Petitioner

Page 899

[496 P.2d 1267] [7 Cal.3d 292] contends that his exclusion on the ground of alienage denies him equal protection of the law.

The principles governing this question were restated last term by the United States Supreme Court in the case of Graham v. Richardson (1971) 403 U.S. 365, 371--372, 91 S.Ct. 1848, 1851--1852, 29 L.Ed.2d 534: 'The Fourteenth Amendment provides, '(N)or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' It has long been settled, and it is not disputed here, that the term 'person' in this context encompasses lawfully admitted resident aliens as well as citizens of the United States and entitles both citizens and aliens to the equal protection of the laws of the State in which they reside. Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886); Truax v. Raich, 239 U.S. 33, 39, 36 S.Ct. 7, 9, 60 L.Ed. 131 (1915); Takahashi v. Fish & Game Comm'n, 334 U.S. (410), at 420, 68 S.Ct. at 1143, 92 L.Ed. 1478. . . .

'Under traditional equal protection principles, a State retains broad discretion to classify as long as its classification has a reasonable basis. (Citations.) . . . But the Court's decisions have established that classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a 'discrete and insular' minority (see United States v. Carolene Products Co., 304 U.S. 144, 152--153, n. 4, 58 S.Ct. 778, 783--784, 82 L.Ed. 1234 (1938)) for whom such heightened judicial solicitude is appropriate. Accordingly, it was said in Takahashi, 334 U.S., at 420, 68 S.Ct. at 1143, 92 L.Ed. 1478, that 'the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits. " (Fns. omitted.)

We recognized these same principles in Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578--579, 79 Cal.Rptr. 77, 86, 456 P.2d 645, 654, concluding that discrimination on the basis of alienage 'invokes a strict standard of review.' We observed that because of the ever-present risk of prejudice 'a special mandate compels us to guard the interests of aliens'; that 'particular alien groups and aliens in general have suffered from such prejudice. Even without such prejudice, aliens in California, denied the right to vote, lack the most basic means of defending themselves in the political processes. Under such circumstances, courts should approach discriminatory legislation with special solicitude.' (Fns. omitted; Id. at p. 580, 79 Cal.Rptr. at p. 86, 456 P.2d at p. 654.) (Accord, Sei Fujii v. State of California (1952) 38 Cal.2d 718, 730--731, 242 P.2d 617.)

It is not only the Basis of the discrimination--alienage--which prompts [7 Cal.3d 293] the concern of the courts: no less significant is the Method by which that discrimination is often practiced, i.e., by totally excluding aliens from engaging in certain occupations. Thus in Purdy & Fitzpatrick we admonished that '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 for the pursuit of life, liberty and happiness; courts sustain such limitations only after careful scrutiny.' (Fn. omitted.) (71 Cal.2d at p. 579, 79 Cal.Rptr. at p. 86, 456 P.2d at p. 654; see also Id. at p. 580, 79 Cal.Rptr. 77, 456 P.2d 645, fn. 30; accord, Sei Fujii v. State of California (1952) supra, 38 Cal.2d 718, 736, 242 P.2d 617.)

Over the years the United States Supreme Court has invoked these principles to strike down, as violations of equal protection of the law, state statutes excluding aliens from a variety of occupations. (See, e.g., Yick Wo v. Hopkins (1886) supra, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (operating a public laundry); Truax v. Raich (1915) supra, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (requirement that four out of five employees be citizens); Takahashi v. Fish & Game Comm'n (1948) supra, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (commercial

Page 900

[496 P.2d 1268] fishing in California offshore waters).) More recently, the courts have extended this constitutional protection both to occupations and to the receipt of governmental social benefits. Thus in Purdy & Fitzpatrick we declared unconstitutional an exclusion of aliens from employment on public works. In Graham v. Richardson (1971) supra, 403 U.S. 365, 91 S.Ct. 1848, the United States Supreme Court invalidated statutes of two states denying welfare benefits to persons who are not citizens or, if aliens, have not resided in this country for 15 years. In Chapman v. Gerard (3d Cir.1972) 456 F.2d 577, the circuit court held unconstitutional an exclusion of alien students from a public scholarship fund. In Dougall v. Sugarman (S.D.N.Y.1971) 330 F.Supp. 265, the district court held that a state statute preventing aliens from applying for competitive civil service positions offended the equal protection clause. And in Hosier v. Evans (D.V.I.1970) 314 F.Supp. 316, that clause was invoked to strike down a refusal to enroll the children of alien temporary workers in the local public school system.

As authority for the proposition that the state may not arbitrarily deny any person the right to engage in 'an otherwise lawful occupation,' our opinion in Purdy & Fitzpatrick (71 Cal.2d at p. 579, fn. 27, 79 Cal.Rptr. 77, 456 P.2d 645) cites Konigsberg v. State Bar of California (1957) 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810. That case, together with its companion, Schware v. Board of Bar Examiners [7 Cal.3d 294] (1957) 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, established the principle, which is controlling here, that a person who seeks to enter upon the occupation of a lawyer comes clothed with the protections of the Fourteenth Amendment. Thus in Schware (at pp. 238--239, 77 S.Ct. at p. 756) the high court explained that '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. (Citations.) A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a Rational connection with the applicant's fitness or capacity to practice law. (Citations.) Obviously an applicant could not be excluded merely because he was a Republican or a Negro or a member of a particular church. Even in applying permissible standards, officers of a State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220.' (Fn. omitted; italics added.) And in Konigsberg...

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    ...alien entitled to be admitted to Connecticut Bar notwithstanding status as alien). See also Raffaelli v. Committee of Bar Examiners, 496 P.2d 1264 (Cal. 1972) and Application of Park, 484 P.2d 1264 (Alas. 1971). The Office currently registers permanent resident aliens. See In re Bhogaraju, ......
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  • Ramirez v. Brown, S.F. 22916
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    ...compelling state interest whatever, and therefore did not reach the question of necessity. (Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 301, 101 Cal.Rptr. 896, 496 P.2d 1264; In re Gary W. (1971) 5 Cal.3d 296, 308, 96 Cal.Rptr. 1, 486 P.2d 10 For the same reason, three fede......
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    • California Court of Appeals
    • March 13, 1997
    ...Bar in support of the CLE program and its exemptions is violated by these exemptions. In Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 291-301, 101 Cal.Rptr. 896, 496 P.2d 1264 (Raffaelli ), our Supreme Court faced a closely analogous problem, where an equal protection challe......
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40 cases
  • Ramirez v. Brown, S.F. 22916
    • United States
    • United States State Supreme Court (California)
    • March 30, 1973
    ...compelling state interest whatever, and therefore did not reach the question of necessity. (Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 301, 101 Cal.Rptr. 896, 496 P.2d 1264; In re Gary W. (1971) 5 Cal.3d 296, 308, 96 Cal.Rptr. 1, 486 P.2d 10 For the same reason, three fede......
  • Warden v. State Bar, No. A072485
    • United States
    • California Court of Appeals
    • March 13, 1997
    ...Bar in support of the CLE program and its exemptions is violated by these exemptions. In Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 291-301, 101 Cal.Rptr. 896, 496 P.2d 1264 (Raffaelli ), our Supreme Court faced a closely analogous problem, where an equal protection challe......
  • Hiatt v. City of Berkeley
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    • March 29, 1982
    ...it is regarded as a suspect classification which is subject to strict judicial scrutiny (Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 101 Cal.Rptr. 896, 496 P.2d 1264; Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529; People v. Rappard (1972) 28 C......
  • Warden v. State Bar of California, No. S060702.
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    ...drawn along lines which rendered it `suspect' in constitutional terms." (See, e.g., Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 291-294, 101 Cal.Rptr. 896, 496 P.2d 1264 [discrimination based on alienage]; Sail'er Inn v. Kirby (1971) 5 Cal.3d 1, 16-20, 95 Cal.Rptr. 329, 485......
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