U.S. v. Clark
| Decision Date | 04 June 1998 |
| Docket Number | No. SA CR 97-99-GLT (SF).,SA CR 97-99-GLT (SF). |
| Citation | 4 F.Supp.2d 940 |
| Parties | UNITED STATES of America, Plaintiff, v. Virginia CLARK, Defendant. |
| Court | U.S. District Court — Central District of California |
Michael J. McCabe, San Diego, CA, for defendant.
ORDER DENYING DEFENDANT'S DISMISSAL MOTION
The Court holds California's unauthorized practice of law statute, Business and Professions Code § 6126, is assimilated as a federal crime on a military installation under the federal Assimilative Crimes Act, 18 U.S.C. § 13(a).
Defendant Virginia Clark is charged with practicing law without a license while defending the military court-martial of three Marines. The government alleges a violation of California Business and Professions Code § 61261, chargeable under the Assimilative Crimes Act (the "ACA")2 since Defendant's conduct occurred in part on a federal enclave.
The government contends Defendant is a law school graduate, but never has been admitted to any bar. The government charges Defendant purportedly represented three Marines through the early stages of their court-martial, holding herself out as a qualified lawyer,3 until removed for an apparent conflict of interest. Her non-lawyer status was discovered thereafter.
Defendant has moved to dismiss the complaint arguing California's unauthorized practice statute, § 6126, cannot be assimilated to become a federal crime under the ACA. This is a case of first impression. The Court concludes § 6126 is a prohibitory criminal statute which provides a gap-filling criminal code where Congress has not exclusively made such conduct punishable, and is properly assimilated under the ACA.
For a state statute to be assimilated as a federal crime under the ACA it must be criminal, prohibitory, and no act of Congress makes the conduct punishable to the exclusion of state law. See generally United States v. Palmer, 956 F.2d 189, 191 (9th Cir.1992) ().
Although the ACA on its face makes no distinction between criminal and civil punishment statutes, the Ninth Circuit generally understands the ACA to assimilate only a state's criminal laws.4 United States v. Carlson, 900 F.2d 1346, 1348 (9th Cir.1990). This "accomplishes the [ACA's] objective of providing a criminal law for federal enclaves while at the same time effectuating the policy of conformity to local law." United States v. Best, 573 F.2d 1095, 1099 (9th Cir.1978). Thus, in the Ninth Circuit, for California's § 6126 to be assimilated, it must be a criminal statute. The question whether a statute is criminal is best resolved by looking at how the state classifies and punishes a violation of the statute.
California classifies the unauthorized practice of law as criminal.5 A violation of § 6126 is a misdemeanor. A misdemeanor is either a "crime" or a "public offense" which is synonymous with "a crime." Burks v. United States, 287 F.2d 117 (9th Cir.1961). The statute is subject to criminal punishment. In California, "[e]xcept in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both." Cal.Penal Code § 19; see also People v. Vanderpool, 20 Cal.2d 746, 750, 128 P.2d 513 (1942). Moreover, § 6126 has been used by California as the basis of criminal prosecution and conviction.6 See, e.g., Bay v. Superior Court (People), 7 Cal. App.4th 1022, 9 Cal.Rptr.2d 339 (1992); Burris v. Superior Court of Tulare County, 43 Cal.App.3d 530, 117 Cal.Rptr. 898 (1974). The Court concludes § 6126 is a criminal statute.
In the Ninth Circuit, not every criminal law may be assimilated by the ACA. Only criminal laws which are prohibitory rather than regulatory are assimilable. Carlson, 900 F.2d at 1348.7 "[A]pplicable state laws governing an activity must be examined in detail before they can be characterized as regulatory or prohibitory." California v. Cabazon Band of Mission Indians, 480 U.S. 202, 211 n. 10, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). In making this distinction courts are encouraged to examine a state's underlying interests. Id. at 209, 107 S.Ct. 1083. "[I]f the intent of a state law is generally to prohibit certain conduct, it [is prohibitory] ... but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as [regulatory]". Id.
Two public interests underlie § 6126's restriction against unlicensed practice of law. See Russell v. Dopp, 36 Cal.App.4th 765, 773, 42 Cal.Rptr.2d 768 (1995). First, California has an interest in requiring attorneys to be licensed so the public is protected from being advised and represented by unqualified persons. Gerhard v. Stephens, 68 Cal.2d 864, 917-918, 69 Cal.Rptr. 612, 442 P.2d 692 (1968). Representation of a criminal defendant by an unlicensed person is so objectionable that it is a per se deprivation of the defendant's constitutional right to counsel. See McShane v. United States, 366 F.2d 286 (9th Cir.1966). Second, California has an interest in stopping the unlicensed practice of law to protect the integrity of the judicial process. Alexander v. Robertson, 882 F.2d 421, 423-425 (9th Cir.1989). In furtherance of these two public interests, the unlicensed practice of law in California is prohibited, not simply regulated. See, e.g., Crawford v. State Bar of Cal., 54 Cal.2d 659, 666, 7 Cal.Rptr. 746, 355 P.2d 490 (1960) (); Drake v. Superior Court, 21 Cal.App.4th 1826, 1827, 26 Cal.Rptr.2d 829 (1994)(same); Howard v. Superior Court for Los Angeles County, 52 Cal.App.3d 722, 726, 125 Cal.Rptr. 255 (1975) (same).
After applying the Ninth Circuit's regulatory/prohibitory distinction to § 6126, the Court concludes the California unauthorized practice of law statute is prohibitory.
The ACA establishes a gap-filling criminal code for federal enclaves only "if no act of Congress makes such conduct punishable." United States v. Marcyes, 557 F.2d 1361, 1365 (9th Cir.1977); see also Williams v. United States, 327 U.S. 711, 724, 66 S.Ct. 778, 90 L.Ed. 962 (1946). In making this determination the Supreme Court has directed:
[courts] must first ask the question that the ACA's language requires: Is the defendant's "act or omission ... made punishable by any enactment of Congress." If the answer to this question is "no," that will normally end the matter.... If the answer to the question is "yes," however, the court must ask the further question whether the federal statutes that apply to the preclude application of the state law in question ... The primary question (we repeat) is one of legislative intent: Does applicable federal law indicate an intent to punish conduct such as the defendant's to the exclusion of the particular state statute at issue?
Lewis v. United States, ___ U.S. ___, 118 S.Ct. 1135, 1141, 140 L.Ed.2d 271 (1998).
Although two federal enactments touch on the topic, under the Lewis test no act of Congress makes the unlicensed practice of law punishable to the exclusion of § 6126.
First, by executive order, Rule for Courts-Martial ("RCM") 502(d)(3) defines who is authorized to practice law in a court-martial proceeding. Under this rule, civilian counsel may practice if admitted to the bar of a Federal court, the bar of the highest court of a State, or otherwise authorized.8 RCM 502, however, is not an act of Congress nor a criminal rule. RCM 502 does not attempt to make unlicensed practice of law punishable. Thus, RCM 502 does not represent an "act of Congress [which] makes such conduct punishable," and does not prevent assimilation of California's unlicensed practice statute.
Second, a military court apparently could punish unauthorized practice of law under its criminal contempt powers.9 Article 48 of the Uniform Code of Military Justice provides: "A court-martial, provost court, or military commission may punish for contempt any person who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder." 10 U.S.C. § 848.10
Under appropriate circumstances, practicing law without a license in a military court could be considered a disorder which disturbs judicial proceedings. Under Article 48 a disorder disturbing the proceedings pertains to:
[Conduct] so rude and pronounced as to amount to a positive intrusion upon and interruption of the proceedings of the court.
United States v. Burnett, 27 M.J. 99, 105 (1988). It is true that cases applying Article 48 usually refer to the military contempt power as limited to overt disruptive behavior. See, e.g., United States v. Gray, 14 M.J. 551 (A.C.M.R.1982). Nevertheless, Defendant's alleged conduct was an affront to the judiciary and an abuse of her "clients" rights. Although Defendant's conduct does not fall within a traditional application of Article 48, a military judge could probably find Defendant's conduct punishable under the military contempt statute. Therefore, defendant's conduct is potentially punishable under a federal statute.
However, nothing in Article 48 or its legislative history indicates it was intended to so occupy the field as to exclude the assimilation of a state unauthorized practice statute. The generalized language of the contempt power does not appear to exclude a specific statutory provision defining a specific crime. The Court concludes the contempt Article does not preclude assimilation of California's § 6126.
Congress, in enacting the ACA, sought to accomplish three goals: establish a gap-filling criminal code for federal...
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U.S.A v. Clark, 98-50371
...of California, is properly assimilated into federal law. The district court held that it was in a published opinion, United States v. Clark, 4 F.Supp.2d 940 (C.D. Cal. 1998), and we agree. Section 6126 is penal, it is prohibitory, and it is not precluded by generally applicable federal law ......