Warden v. State Bar of California

• Decision Date: 26 August 1999
• Docket Number: No. S060702.,S060702.
• Citation: 21 Cal.4th 628,982 P.2d 154,88 Cal.Rptr.2d 283
• Court: California Supreme Court
• Parties: Lew WARDEN, Plaintiff and Appellant, v. The STATE BAR OF CALIFORNIA et al., Defendants and Respondents.

88 Cal.Rptr.2d 283

982 P.2d 154

21 Cal.4th 628

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

No. S060702.

Supreme Court of California.

August 26, 1999.

Rehearing Denied October 20, 1999.

Lew Warden, in pro. per., for Plaintiff and Appellant.

Mark D. Greenberg, Oakland, as Amicus Curiae on behalf of Plaintiff and Appellant.

William H. Mellor III, Clint Bolick and Donna G. Matias, for Institute for Justice as Amicus Curiae on behalf of Plaintiff and Appellant.

Stephen R. Barnett, Berkeley, as Amicus Curiae on behalf of Plaintiff and Appellant.

Diane C. Yu, Starr Babcock, Colin P. Wong, Lawrence C. Yee, San Francisco, Robert M. Sweet, Marina Del Rey, Marie Moffat; Cooper, White & Cooper, James M. Wagstaffe, Mark L. Tuft and Andrew I. Dilworth, San Francisco, for Defendants and Respondents.

Law Offices of Amitai Schwartz, Amitai Schwartz; Freidman, Ross & Hersh, Jeffrey S. Ross, San Francisco; Joel D. Schiff, Los Angeles; Altshuler, Berzon, Nussbaum, Berzon. & Rubin, Fred H. Altshuler, San Francisco; Littler, Mendelson and Richard J. Loftus, Jr., San Jose, for the Bar Association of San Francisco, Santa Clara County Bar Association and Beverly Hills Bar Association as Amici Curiae on behalf of Defendants and Respondents.

Blanc, Williams, Johnston & Kronstadt, John A. Kronstadt; Sidley & Austin and Catherine Valerio Barrad, Los Angeles, for Los Angeles County Bar Association, San Diego County Bar Association, San Fernando Valley Bar Association, Orange County Bar Association, Sacramento Bar Association and Women Lawyers Association of Los Angeles as Amici Curiae on behalf of Defendants and Respondents.

GEORGE, C.J.

In this proceeding, plaintiff Lew Warden, an attorney and member of the State Bar of California (State Bar or Bar), challenges the constitutional validity of this state's mandatory (or minimum) continuing legal education (MCLE) program, established pursuant to statute and court rule and administered by the State Bar. Among other claims, plaintiff contends that the current MCLE program violates his right to the equal protection of the laws, because a number of categories of currently licensed attorneys — retired judges, officers and elected officials of the State of California, and full-time law professors at accredited law schools — are exempt from the MCLE requirements.

The trial court rejected plaintiffs constitutional claims and granted summary judgment in favor of defendants (the State Bar and a number of its employees). On appeal, the Court of Appeal reversed the judgment, concluding that the challenged exemptions from the MCLE program are arbitrary and irrational and thus invalid even under the "rational relationship" equal protection standard that the Court of Appeal found applicable in this setting. Further, the majority opinion in the Court of Appeal, expressing the view of two justices, went on to conclude that the proper remedy for the equal protection violation it had found was the invalidation of the MCLE program in its entirety. The third Court of Appeal justice, while agreeing with the majority that the exemptions were constitutionally flawed, concluded that the appropriate remedy for the equal protection violation was to eliminate only the invalidated exemptions, thereby preserving the MCLE program and extending its requirements to the formerly exempt categories of attorneys as well as to all nonexempt attorneys.

We granted the State Bar's petition for review to consider whether (1) the MCLE program violates federal or state equal protection principles by exempting the specified categories of attorneys from the MCLE requirements, and (2) if so, what the appropriate remedy should be. As explained hereafter, we conclude that, although the wisdom of some or all of the exemptions from the MCLE program may be questioned as a matter of policy, the challenged exemptions may not be found unconstitutional under a proper understanding of the applicable equal protection standard as established by the governing decisions of both the United States Supreme Court and this court. In light of this determination, there is no need to reach the question of the appropriate remedy were the exemptions to be unconstitutional.

I

The MCLE program in California — a consumer protection measure "intended to enhance the competency of attorneys practicing law in this state" (People v. Ngo (1996) 14 Cal.4th 30, 36, 57 Cal.Rptr.2d 456, 924 P.2d 97) — is a product of legislative action, court rule, and State Bar regulations.¹ In 1989, the Legislature enacted Business and Professions Code section 6070, which required the State Bar to request this court to adopt a rule of court authorizing the Bar to establish and administer an MCLE program. (Bus. & Prof.Code, § 6070, subd. (a).)² The statute specified a number of details concerning the rule that the State Bar was to request, including a provision that a member of the Bar who failed to satisfy the MCLE requirements would be enrolled as an inactive member and thus be unauthorized to practice law in this state until these requirements were met. (Ibid.)

Section 6070 also includes a separate subdivision — subdivision (c) — that exempts certain categories of attorneys from the reach of the statute, providing that "retired judges, officers and elected officials of the State of California, ... full-time professors at law schools accredited by the State Bar of California, the American Bar Association, or both, [and] ... [f]ull-time employees of the State of California, acting within the scope of their employment, shall be exempt from the provisions of this section."³ Following the passage of section 6070, the State Bar requested this court to adopt an MCLE rule. After considering public comment, this court adopted rule 958 of the California Rules of Court, effective December 6, 1990. That rule requires the State Bar to establish and administer an MCLE program, beginning January 1, 1991, "under rules adopted by the Board of Governors of the State Bar." Rule 958, like section 6070, specifies a number of details relating to the MCLE program, and exempts some attorneys from the MCLE requirements. Under rule 958, (1) attorneys exempt under section 6070, (2) full-time federal employees, acting within the scope of their employment, and (3) attorneys "exempt under rules adopted by the Board of Governors of the State Bar" are not subject to the MCLE requirements mandated by the rule.⁴

Contemporaneously with the adoption of California Rules of Court, rule 958, the Board of Governors of the State Bar adopted a detailed set of rules and regulations to govern the operation of the MCLE program. (See State Bar Min. Cont. Legal Ed. Rules and Regulations, §§ 1.0-17.0, adopted by the Bd. of Governors of the State Bar on Dec. 8, 1990, and amended Sept. 1, 1995 (hereafter State Bar MCLE Rules and Regulations).) The regulations set out the five prescribed categories exempted from the MCLE requirements pursuant to section 6070 and rule 958 — (1) retired judges, (2) officers and elected officials of the State of California, (3) full-time professors at accredited law schools, (4) full-time employees of the State of California, and (5) full-time federal employees — and provide that the last two categories refer to public employees "who do not practice law in California except as employees of the State of California ... [or] of the United States Government...." (State Bar MCLE Rules & Regs., §§ 6.1.4, 6.1.5.) In addition, the regulations include a provision — entitled "Good Cause Exemption From or Modification of Requirement" — that authorizes any member of the State Bar to "submit an application setting forth good cause for an exemption from compliance with or modification of any of the [MCLE] requirements, including an extension of time for compliance, in accordance with a procedure to be established by the Committee on Minimum Continuing Legal Education." (State Bar MCLE Rules & Regs, § 6.3.)⁵

II

Under the provisions of rule 958, California Rules of Court, plaintiff, an actively enrolled member of the State Bar, was obligated to comply with the MCLE program. He acknowledges, however, that he did not do so. On April 23, 1993, the Bar, pursuant to its regulations (State Bar MCLE Rules & Regs, § 13.2), sent plaintiff a "Non-Compliance Notice," advising plaintiff of what he was required to do to comply with the MCLE requirements and informing him that he had 60 days from the date of the notification to comply with the requirements; the notice informed plaintiff that he would be enrolled as an inactive member if he did not submit proof of compliance by June 22, 1993. On June 29, the Bar sent plaintiff a final notice, advising him that his name would be submitted to the Board of Governors on July 17, 1993, with a recommendation that, effective July 19, 1993, he be enrolled as an inactive member of the Bar until he complied with the MCLE requirements.

On July 9, 1993, plaintiff wrote to the MCLE compliance coordinator of the State Bar, asserting that the MCLE program was unconstitutional and that he could not be prohibited from practicing law for refusing to comply with its requirements. On July 23, a senior administrative assistant of the Bar's legal unit acknowledged. receipt of plaintiffs letter, which had been forwarded by the Bar's Office of General Counsel for response. On July 30, the Bar sent plaintiff a notice of enrollment on administrative inactive status, informing him that effective July 19, 1993, he was ineligible to practice law in California until the Bar received proof of his compliance with the applicable MCLE requirements.

On September 23, 1993, plaintiff responded to the notice that he had been enrolled as an inactive member by a letter to the State Bar, expressing his "profound disagreement" with the MCLE program and threatening to sue the Bar and its employees for damages if it did not "forthwith recall...