Warden v. State Bar

• Citation: 53 Cal.App.4th 510,62 Cal.Rptr.2d 32
• Decision Date: 13 March 1997
• Docket Number: No. A072485,A072485
• Court: California Court of Appeals
• Parties: Previously published at 53 Cal.App.4th 510 53 Cal.App.4th 510, 65 USLW 2602, 97 Cal. Daily Op. Serv. 1915, 97 Daily Journal D.A.R. 3503 Lew WARDEN, Plaintiff and Appellant, v. The STATE BAR OF CALIFORNIA et al., Defendants and Respondents.

Page 32

62 Cal.Rptr.2d 32

Previously published at 53 Cal.App.4th 510

53 Cal.App.4th 510, 65 USLW 2602, 97 Cal. Daily Op. Serv. 1915,

97 Daily Journal D.A.R. 3503

Lew WARDEN, Plaintiff and Appellant, v. The STATE BAR OF CALIFORNIA et al., Defendants and Respondents.

No. A072485.

Court of Appeal, First District, Division 5, California.

March 13, 1997.

Review Granted June 5, 1997.

Lew Warden, San Jose, in Propria Persona.

Diane C. Yu, Starr Babcock, Colin P. Wong, State Bar of California, Office of General Counsel, for Respondent.

PETERSON, Presiding Justice.

Attorney Lew Warden (Warden) appeals from a judgment in favor of the State Bar of California (Bar) and two of its employees rejecting his constitutional challenges to certain aspects of the mandatory continuing legal education (CLE) program (BUS. & PROF.CODE, § 6070)¹.

We conclude we must reverse the trial court's order, which granted judgment against Warden's constitutional challenge to his involuntary enrollment as an inactive Bar member, effectively suspending his license to practice law for failure to comply with the CLE program. We will hold the Bar's CLE program is unconstitutional because it violates the equal protection rights of members of the Bar who are not exempted from the program. The exemptions from the CLE program allowing currently licensed Bar members who are also officers and elected officials of the state, or retired judges, or certain professors of law, actively to practice law--while representing clients in private practice without complying with the CLE program--simply lack any constitutionally required rational basis. The CLE program as so constituted violates the equal protection rights of attorneys who are treated less favorably without any rational basis for the less favorable treatment. We, therefore, reverse and remand for entry of declaratory relief and an order reinstating appellant's right to practice law.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The CLE Program

In 1989, the Legislature enacted legislation sponsored by the Bar which ultimately provided, "The [Bar] shall request the California Supreme Court to adopt a rule of court authorizing the [Bar] to establish and administer a mandatory [CLE] program" which would require that "within designated 36-month periods, all active members of the [Bar] shall complete at least 36 hours" of approved legal education activities, including four hours of legal ethics and four more of either ethics or law practice management. (§ 6070, subd. (a).) If such a rule were adopted, "the [Bar] shall establish and administer" such a program, and any Bar member who failed to satisfy the program's requirements "shall be enrolled as a inactive member pursuant to rules adopted by the Board of Governors of the State Bar [Board]." (Ibid.) ²

Although section 6070, subdivision (a) by its terms applied to "all active members of the [Bar]," ³ the statute in its final form also provided a large number of exemptions from the CLE requirements, some of which are in issue here. Section 6070, subdivision (c) specified that "retired judges, officers and elected officials of the State of California," as well as full-time professors at accredited law schools, and full-time state employees acting within the scope of their employment, "shall be exempt" from the section's provisions.

The following year, our Supreme Court, required to conform, inter alia, with the statutory exemption requirements of section 6070, adopted California Rules of Court, rule 958 (rule 958). ⁴ Rule 958(b) provided that the Bar "shall establish and administer a minimum [CLE] program, beginning on or after January 1, 1991," under rules which "may provide for," among other things, "staggering of the education requirement for implementation purposes...." Rule 958(c) contained all the exemptions required by section 6070, added an exemption for full-time federal employees acting within the scope of their employment, and required that eight of the thirty-six hours of CLE "shall address legal ethics or law practice management..., [four hours of which shall be] in legal ethics." Furthermore, "Each active member shall report his or her compliance to the [Bar] under rules adopted by [its Board]." (Rule 958(c).) In all other salient respects, rule 958 tracked the mandate of section 6070.

The Bar's Minimum CLE Rules and Regulations (regulations) provide the purpose of the CLE requirement is "to assure that, throughout their careers, California attorneys remain current regarding the law, the obligations and standards of the profession, and the management of their practices." (§ 1.0.) In addition to the ethics and law practice management requirements, the regulations expanded on section 6070 and rule 958 by specifying that of each thirty-six hours of educational activities at least one "shall relate to prevention, detection, and treatment of substance abuse and emotional distress," and another one hour "shall relate to elimination of bias in the legal profession." (Regs., §§ 2.1, 2.1.2, & 2.1.3.) Compliance is established by a self-reporting procedure. (Id., § 12.0.)

The regulations defined exempt state and federal employees as those "who do not practice law in California except" as state or federal employees. (§§ 6.1.4 & 6.1.5.) Section 6.3 established a good cause exemption from or modification of the requirements. ⁵ Section 14.2 of the regulations provides that enrollment as an inactive member for failure to comply with CLE requirements "is administrative in nature and no hearing is required."

The Bar has issued guidelines "as advisory interpretations of the [CLE regulations]" (guidelines) which, inter alia, amplified the definitions of certain categories of attorneys exempted from CLE requirements. ⁶ (See guidelines, 1st p.)

B. Warden's Refusal to Comply

Warden, who was then 73 years old, was required as an actively enrolled member of the Bar to comply with the CLE program in accordance with section 6070. On April 23, 1993, the Bar sent him a noncompliance 60-day notice (regs., § 13.2), warning that he would be enrolled as an inactive member if he did not submit proof of compliance by June 22. On June 29, he was sent a final notice, advising him that on July 17 his name would be submitted to the Board with the recommendation that he be enrolled as an inactive member of the Bar effective July 19, 1993, until he complied with his CLE requirements.

On July 9, 1993, Warden wrote to the CLE compliance coordinator of the Bar contending that the CLE program was unconstitutional, and that he could not be forbidden from practicing law for refusing to comply. On July 23, a senior administrative assistant of the Bar's Legal Unit acknowledged receipt of Warden's letter, which had been referred to the Bar's Office of General Counsel for response. On July 30, the Bar sent Warden a notice of enrollment on administrative inactive status, advising him that effective July 19, 1993, he was ineligible to practice law until the Bar received proof of CLE compliance.

On September 23, 1993, Warden wrote a letter threatening to sue the Bar for damages if it did not "forthwith recall [its] suspension order." On October 22, Assistant General Counsel Rossi responded to Warden's letters by outlining the manner in which the CLE program, including the noncompliance provisions, had been "developed at the direction of the Legislature and the California Supreme Court." She also indicated Warden's October 7 " 'Claim of Damage' " had been forwarded to the Board for review.

After the Board denied his claim, Warden filed a complaint against the Bar and its employees for compensatory and punitive damages, declaratory relief, injunction, and mandate. Warden alleged, inter alia, that the CLE program, as "created" and as applied, violated his right to equal protection, by exempting certain members of the Bar from its requirements.

The Bar moved for summary judgment or summary adjudication of issues. (Code Civ.Proc., § 437c.) After a hearing, the court granted summary adjudication of all seven issues the Bar had placed before it, thus disposing of all aspects of Warden's constitutional challenge. Warden filed a motion for reconsideration. (Code Civ.Proc., § 1008.) After the court filed its summary judgment order, Warden filed a new trial motion. (Code Civ.Proc., § 657.) After hearings, the court denied both of Warden's motions. Warden filed a timely notice of appeal.

II. DISCUSSION

Warden contends the Bar's CLE program and its exemptions violate his equal protection rights. ⁷ The Bar contends its CLE program and the exemptions thereto may only be reviewed to determine whether they have a rational basis, and the Bar suggests the program and some of its exemptions may have a rational basis. We agree with the Bar regarding the scope of review, and apply only a lenient "rational basis" test. Even under that test, however, we find no rational basis sufficient to support the CLE program and its exemptions.

A. Standing

We face an initial question as to standing. The Bar did not contend in either the trial court or in its briefs filed on appeal that Warden lacked standing to challenge the CLE program and its exemptions on equal protection grounds. On our own motion, we requested supplemental briefing on this issue. After reviewing the supplemental briefing by Warden and the Bar, we conclude Warden does have standing to challenge the CLE program and its exemptions on equal protection grounds, because he alleges his own rights to equal protection were violated by the operation of the program and exemptions from the program for other attorneys, which taken together unfairly discriminated against him without any rational basis for the discrimination.

In the leading case from this district regarding the standing requirement for mounting an equal protection challenge, Burns v. State Compensation Ins. Fund (1968) 265 Cal.App.2d 98, 71 Cal.Rptr. 326, the appellant made an...