Ernest Franceschi, Jr. v. John Chiang

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERNEST JOSEPH FRANCESCHI, JR., No. 14-56493

Attorney, an individual,

Plaintiff-Appellant, D.C. No.

2:14-cv-01960-

v. CAS-SH

BETTY T. YEE, President of

California Franchise Tax Board in OPINION

her Official Capacity; GEORGE

RUNNER, Board Member of

California Franchise Tax Board in

his Official Capacity; JEAN

SHIOMOTO, Director of California

Department of Motor Vehicles in her

Official Capacity; MICHAEL COHEN,

Board Member of California

Franchise Tax Board in his Official

Capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Christina A. Snyder, District Judge, Presiding

Argued and Submitted November 15, 2017

Pasadena, California

Filed April 11, 2018

2 FRANCESCHI V. YEE

Before: Michael Daly Hawkins, Barrington D. Parker,*

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Parker

SUMMARY**

Tax

The panel affirmed the district court’s judgment in an

action under 42 U.S.C. § 1983, challenging the

constitutionality of California Revenue and Tax Code

§ 19195 (which establishes a public list of the top 500

delinquent state taxpayers) and California Business and

Professions Code § 494.5 (which provides for suspension of

the driver’s license of anyone on the top 500 list). The district

court found the statutory scheme constitutional and dismissed

the action under Federal Rule of Civil Procedure 12(b)(6).

The panel first held that the taxpayer was not deprived of

procedural due process based on his contention that he had

an inadequate opportunity to be heard prior to license

revocation. The panel explained that California provides tax

delinquents with a constitutionally adequate procedure to

challenge the amount of their tax delinquency, either before

or after the deprivation of a driver’s license.

*

The Honorable Barrington D. Parker, United States Circuit Judge for

the U.S. Court of Appeals for the Second Circuit, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

FRANCESCHI V. YEE 3

The panel next held that the taxpayer was not deprived of

substantive due process based on his claims that the statutory

scheme impermissibly burdened taxpayer’s right to choose a

profession, and that the scheme is retroactive. The panel

observed that revocation of a driver’s license does not operate

as a complete prohibition on one’s ability to practice law.

The panel also explained that § 494.5 does not operate

retroactively because it does not sanction taxpayer for past

conduct, but for his current refusal to discharge his tax

obligations.

The panel was unpersuaded by the taxpayer’s equal

protection claim, that the challenged statutes impermissibly

single out taxpayers who fall within the class of California’s

500 largest tax delinquents, resulting in unequal treatment of

similarly situated individuals. The panel found a rational

basis for state action against a citizen for failing to pay two

years’ worth of past-due taxes (as taxpayer had done), given

California’s legitimate and significant interest in the prompt

collection of tax revenue.

Finally, the panel rejected the taxpayer’s contention that

the combined effect of the challenged statutes is to single out

the largest 500 tax debtors for legislative punishment,

amounting to a bill of attainder. The panel explained that

membership in the group of taxpayers subject to suspension

turns on the continuing fact of nonpayment, which a

delinquent taxpayer can rectify.

4 FRANCESCHI V. YEE

COUNSEL

Ernest J. Franceschi Jr. (argued), Franceschi Law

Corporation, Los Angeles, California, pro se Plaintiff-

Appellant.

Matthew C. Heyn (argued), Deputy Attorney General;

Stephen Lew, Supervising Deputy Attorney General; Paul D.

Gifford, Senior Assistant Attorney General; Office of the

Attorney General, Los Angeles, California; for Defendants-

Appellees.

OPINION

PARKER, Circuit Judge:

This action challenges the constitutionality of Section

19195 of the California Revenue and Taxation Code and

Section 494.5 of the California Business and Professions

Code. Section 19195 establishes a public list of the top 500

delinquent state taxpayers who owe in excess of $100,000.

In turn, Section 494.5 provides for suspension of the driver’s

license of a taxpayer on the delinquent list until full payment

of the tax obligation is arranged.

Appellant Ernest J. Franceschi, Jr., Esq. is a major tax

delinquent. Anticipating the suspension of his driver’s

license after the publication of the next edition of the top 500

list—which would include him—Franceschi sued, under

42 U.S.C § 1983, challenging Sections 19195 and 494.5 on

various federal constitutional grounds. The District Court

rejected his claims and dismissed the complaint. See

Franceschi v. Chiang, No. 2:14-cv-01960-CAS-SH, 2014

FRANCESCHI V. YEE 5

WL 12069866 (C.D. Cal. Aug. 4, 2014). Franceschi appeals

and we affirm.

I. BACKGROUND

Franceschi is an attorney who has been licensed to

practice law in California since 1984. Appellee Betty Yee is

the chairwoman of the California Franchise Tax Board (the

“FTB”); appellees George Runner and Michael Cohen are

members of the FTB; and appellee Jean Shiomoto is the

director of the California Department of Motor Vehicles.

Despite being a member of the bar for many years,

Franceschi failed to file any California state income tax

returns between 1995 and 2012 and failed to pay any state

income taxes, penalties, or interest for those years,

contending that he owed none. For each of those years, the

FTB gave written notice of proposed deficiency assessments

of taxes, interest and penalties (an “NPA”).

California’s Revenue and Taxation Code sets forth a

framework under which a delinquent taxpayer, like

Franceschi, has multiple opportunities to challenge deficiency

assessments. Cal. Rev. & Tax Code § 19031, et seq. At the

outset, the FTB is required to send the taxpayer notice of the

proposed deficiency assessment for any tax deficiency it

proposes to assess. Id. § 19033(a). The taxpayer may then

file a protest within sixty days. Id. § 19041(a). If the

taxpayer files a protest, the FTB must reconsider the

assessment and, if the taxpayer so requests, grant the taxpayer

a hearing on the deficiency. Id. § 19044(a). If the deficiency

is not resolved at this stage, a taxpayer has further recourse by

appealing to the State Board of Equalization. Id. § 19045.

After the State Board of Equalization rules on the matter, a

6 FRANCESCHI V. YEE

still dissatisfied taxpayer can then petition the State Board of

Equalization for rehearing. Id. § 19048.

Still further, a taxpayer has an additional opportunity to

be heard on the validity of his or her tax delinquency by

paying the taxes and filing a claim for refund with the FTB.

Id. § 19382. Utilization of this procedure here would have

permitted Franceschi to both challenge the original

assessments and to retain his driver’s licence while doing so.

If the FTB denied the claim he could have sued for a refund

in California Superior Court. Franceschi concedes that he did

not avail himself of any of these multiple remedial

procedures.

If, however, a taxpayer like Franceschi fails to protest the

NPA within sixty days, the proposed deficiency assessment

becomes final. Id. § 19042. Once the assessment becomes

final, the FTB can demand payment and the amount owed

becomes a lien on the taxpayer’s real property in California.

Id. §§ 19049, 19221.

The FTB compiles a list of the top 500 tax delinquents in

the state (the “Top 500 List”). Id. § 19195(a). Specifically,

Section 19195 directs the FTB to “make available as a matter

of public record at least twice each calendar year a list of the

500 largest tax delinquencies in excess of one hundred

thousand dollars ($100,000)[.]”1 Id. Prior to placing a

delinquent taxpayer on the Top 500 List, the FTB is required

to provide thirty days’ notice to the taxpayer. Id. § 19195(d).

1

The Top 500 List includes the taxpayer’s name and address, the

amount of tax delinquency, the taxpayer’s occupation, and the type, status,

and license number of any occupational or professional license held by the

tax delinquent. Id. § 19195(c).

FRANCESCHI V. YEE 7

If within thirty days after this notice, the delinquent taxpayer

does not remit the amount due or make arrangements with the

FTB for payment, the delinquent taxpayer is named on the

Top 500 List. Id.

Important for this appeal, effective January 1, 2012,

Section 494.5 was enacted to provide that a state

governmental licensing entity “shall suspend” a license if a

licensee’s name is included on the Top 500 List.2 Cal. Bus.

& Prof. Code § 494.5(a)(1). Specifically, Section 494.5

provides that, on at least ninety days’ notice, the California

Department of Motor Vehicles “shall suspend” the driver’s

license of any licensee whose name is included on the Top

500 List. Id. § 494.5(a)(2), (b)(1), (f)(1).3 Within this notice

period, a delinquent taxpayer can challenge inclusion and

seek to avoid revocation of a driver’s license by

(1) presenting a written submission that the tax delinquency

was paid, (2) entering into a payment agreement, or

(3) demonstrating financial hardship. Id. § 494.5(h).

Franceschi’s cumulative tax deficit encompasses the years

1995 through 2012. After the enactment of Section 494.5 in

2012, the FTB, in April 2012, March 2013, and March 2014,

served him with NPAs for the years 2010 through 2012.

Franceschi then had sixty days to protest these additional

proposed deficiencies. He took no steps to do so.

2

Section 494.5 was originally passed in 2012 but was amended in

2013, in a manner not relevant here.

3

Furthermore, the State Bar of California “may recommend to refuse

to issue, reactivate, reinstate, or renew a license and may recommend to

suspend a license if a licensee’s name” is included on the Top 500 List.

Id. § 494.5(a)(3), (b)(1).

8 FRANCESCHI V. YEE

Franceschi alleges that he received notice from the FTB

dated February 2014 indicating that he was to be included in

the next publication of the Top 500 List because he owed

$242,276.73 in back taxes. Franceschi further alleges that he

anticipated that the DMV would suspend his driver license

after the next publication of the Top 500 List.

In an effort to forestall his suspension, Franceschi sued

under 42 U.S.C. § 1983, asserting claims for violations of his

procedural and substantive due process rights, and the Equal

Protection Clause.4 In addition he claimed that the 2012

enactment of Section 494.5 constituted a bill of attainder. See

Franceschi, 2014 WL 12069866, at *1. Franceschi also

sought a preliminary injunction seeking to prohibit the

publication of his name on the Top 500 List and the

suspension of his driver’s license. During the pendency of

this action, after the District Court denied Franceschi’s

application for interlocutory relief, the DMV suspended his

driver’s license.

The defendants moved to dismiss Franceschi’s lawsuit

under Federal Rule of Civil Procedure 12(b)(6). The District

Court concluded that the statutory scheme Franceschi

challenged was constitutional. It held, among other things,

that Franceschi had received adequate notice and an

opportunity to be heard before his license was suspended. It

also determined that the application of Sections 19195 and

494.5 to him did not violate his substantive due process rights

by impermissibly burdening his right to practice his

profession or having retroactive effect, did not violate his

4

Franceschi also brought a claim for violation of the Privileges or

Immunities Clause which the District Court dismissed. On appeal, he

abandons this claim.

FRANCESCHI V. YEE 9

equal protection rights, and did not constitute a bill of

attainder. Id. at *1–*13. Accordingly, the District Court

denied Franceschi’s request for injunctive relief and

dismissed his lawsuit.

This appeal followed. We review de novo the District

Court’s decision to dismiss Franceschi’s complaint under

Rule 12(b)(6). See Manzarek v. St. Paul Fire & Marine Ins.

Co., 519 F.3d 1025, 1030–31 (9th Cir. 2008).

II. DISCUSSION

A. Procedural Due Process

Franceschi’s procedural due process claim has two

elements. He must plausibly allege: “(1) a deprivation of a

constitutionally protected liberty or property interest, and

(2) a denial of adequate procedural protections.” Hufford v.

McEnaney 249 F.3d 1142, 1150 (9th Cir. 2001) (citation

omitted). Most licenses are constitutionally protected

property and cannot be taken away without procedural due

process required by the Fourteenth Amendment. See Bell v.

Burson, 402 U.S. 535, 539 (1971). “[T]he Due Process

Clause applies to the deprivation of a driver’s license by the

State[.]” Dixon v. Love, 431 U.S. 105, 112 (1971).

The essence of procedural due process is that “individuals

whose property interests are at stake are entitled to ‘notice

and an opportunity to be heard.’” Dusenbery v. United

States, 534 U.S. 161, 167 (2002) (quoting United States v.

James Daniel Good Real Prop., 510 U.S. 43, 48, (1993)). It

is well-established that because due process is a flexible

concept, “[p]recisely what procedures the Due Process Clause

requires in any given case is a function of context.” Brewster

10 FRANCESCHI V. YEE

v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971,

983 (9th Cir. 1998); see also Morrissey v. Brewer, 408 U.S.

471, 481 (1972).

On appeal, Franceschi advances two main arguments why

the challenged statutory scheme provides inadequate process

prior to the deprivation of his driver’s license. First, he

argues that Section 494.5 does not provide an adequate

opportunity to be heard prior to license revocation. Second,

he argues that Section 494.5’s payment plan and financial

hardship exemptions are illusory. Neither of these

contentions has merit.

The Supreme Court has held that a driver’s license can be

revoked without a pre-revocation hearing. See Dixon,

431 U.S. at 112–15. Franceschi has no response to Dixon. He

nevertheless goes on to argue that he should have been

afforded a pre-deprivation hearing. Specifically, Franceschi

argues that at such a pre-deprivation hearing, he would have

been able to demonstrate that his actual tax delinquency was

below the threshold $100,000 for inclusion on the Top 500

List when time-barred assessments, interest and penalties on

time-barred assessments are excluded.5

5

Specifically, Franceschi argues that a substantial amount of his tax

delinquency is time-barred by Section 13680 of the California Revenue &

Taxation Code, which establishes a ten year statute of limitations.

However, this is incorrect. Section 13680 is inapplicable because it only

concerns the collection of gift and estate taxes, not the collection of

income taxes, as the District Court correctly concluded. See Cal. Rev. &

Tax. Code § 13680 (referring to the “collection of any tax imposed by this

part” (emphasis added)); see generally Cal. Rev. & Tax. Code, Part 8

(referring to “Gift and Death taxes”). We note that to the extent that

Franceschi can advance a credible argument that his tax delinquency is

time-barred, he is free to do so in a refund action.

FRANCESCHI V. YEE 11

Franceschi’s arguments overlook the fact that he had a

readily available, constitutionally valid, pre-deprivation

opportunity to prevent the suspension of his license. After

receipt of the notice of revocation and before his license was

suspended, Franceschi could have challenged his threatened

suspension by paying his taxes and filing a refund claim with

the FTB. See Cal. Rev. & Tax Code § 19382. The payment

of his tax liability would have allowed him to retain his

driver’s license. He would then have the opportunity to file

a refund claim and challenge the original tax assessment. In

the event the FTB denied his refund claim, he could still

obtain relief by suing for a refund in California Superior

Court.

Courts have consistently held that pay first, litigate later

procedures such as these satisfy due process in the context of

tax collection. See Todd v. United States, 849 F.2d 365, 369

(9th Cir. 1998) (collecting Supreme Court cases holding that

in the federal context, “taxpayers do not have the right to a

hearing prior to collection efforts by the IRS”); see also Bob

Jones Univ. v. Simon, 416 U.S. 725, 746–48 (1974); Aronoff

v. Franchise Tax Bd., 383 P.2d 409, 410 (Cal. 1963) (“The

due process clause does not guarantee the right to judicial

review of tax liability before payment.” (quoting Modern

Barber Colls. v. Cal. Emp’t Stabilization Comm’n, 192 P.2d

916, 919 (Ca1. 1948))). More generally, where tax liability

is involved, postponement of a judicial inquiry is not a denial

of due process if the opportunity for an ultimate judicial

determination of the tax liability is adequate. See Phillips v.

Comm’r of Internal Revenue, 283 U.S. 589, 595 (1931)

(observing that when an “adequate opportunity is afforded for

a later judicial determination of the legal rights, summary

proceedings to secure prompt performance of pecuniary

obligations to the government have been consistently

12 FRANCESCHI V. YEE

sustained”). California, therefore, provides tax delinquents

with a constitutionally adequate procedure to challenge the

amount of their tax delinquency, either before or after the

deprivation of a license under Section 494.5.

Moreover, as noted, Franceschi had multiple opportunities

to challenge the tax deficiencies that the FTB proposed at the

time of their assessment and well before he faced license

suspension. For each of the years from 1995 through 2012,

for which Franceschi failed to file a tax return, he received

written notices of proposed deficiency assessments. Further,

Franceschi does not contest that he received these notices and

in fact concedes that he became obligated to the FTB as far

back as 1995. These procedures afforded him multiple

opportunities to challenge the validity of the assessments that

led to the revocation of his driver’s license. For whatever

reason, he failed to avail himself of any of them. What

Franceschi seeks is a forum in which to dispute his tax

delinquencies well after the time they become final.

Franceschi does, however, have access to such a forum, but

must satisfy his tax deficiencies first.

This result is congruent with the three-part procedural due

process test that the Supreme Court established in Mathews

v. Eldridge, 424 U.S. 319 (1976). See, e.g., Gant v. Cty. of

Los Angeles, 772 F.3d 608, 619 n.12 (9th Cir. 2014). Under

Mathews we consider (1) “the private interest that will be

affected by the official action”; (2) “the risk of an erroneous

deprivation of such interest through the procedure used, and

the probable value, if any, of additional or substitute

procedural safeguards”; and (3) the government’s interest in

minimizing the cost and burden of additional or substitute

procedures. 424 U.S. at 335.

FRANCESCHI V. YEE 13

First, the private interest at issue here is a driver’s license

and, while subject to a level of constitutional protection, a

driver’s license is not a fundamental right and can be

suspended without a prior hearing. See Dixon, 431 U.S. at

113–15. Second, the risk here that the challenged statutory

scheme will result in the erroneous deprivation of a protected

interest is low. The facts supporting the suspension have

already been established through prior proceedings with

adequate process involving multiple opportunities to

challenge the deficiency assessments. Cf. Air N. Am. v. Dep’t

of Transp., 937 F.2d 1427, 1438 (9th Cir. 1991) (“[T]he due

process clause does not require a hearing when . . . there are

no factual questions to resolve.”). Franceschi nonetheless

argues that he did not have the same incentive to challenge

the deficiency assessments before Section 494.5 established

that his license could be revoked. To the extent that

Franceschi suggests that his lack of incentive to challenge the

initial assessments created a greater risk of erroneous

deprivation, we think that risk is adequately mitigated by the

availability of a refund action under Section 19382. Finally,

California obviously has a strong interest in revenue

collection, and the challenged statutory scheme appropriately

reflects the importance of this interest. See Jolly v. United

States, 764 F.2d 642, 646 (9th Cir. 1985). In sum, we readily

conclude that the Mathews factors have been met and that

Franceschi was not denied procedural due process.

B. Substantive Due Process

Franceschi contends that the statutory scheme set forth in

Sections 19195 and 494.5 violates his substantive due process

rights in two respects: first, by impermissibly burdening his

chosen profession, and, second, by acting retroactively.

Neither argument has merit.

14 FRANCESCHI V. YEE

1. Burden on Profession

The Due Process Clause of the Fourteenth Amendment

includes “a substantive component that protects certain

individual liberties from state interference[.]” Mullins v.

Oregon, 57 F.3d 789, 793 (9th Cir. 1995); see also Martinez

v. City of Oxnard, 337 F.3d 1091, 1092 (9th Cir. 2003) (per

curiam) (observing that the Due Process Clause protects

individuals from state action that “interferes with rights

implicit in the concept of ordered liberty” (internal quotation

marks and citation omitted)). The range of liberty interests

that substantive due process protects is narrow and “[o]nly

those aspects of liberty that we as a society traditionally have

protected as fundamental are included within the substantive

protection of the Due Process Clause.” Mullins, 57 F.3d at

793. Substantive due process has, therefore, been largely

confined to protecting fundamental liberty interests, such as

marriage, procreation, contraception, family relationships,

child rearing, education and a person’s bodily integrity, which

are “deeply rooted in this Nation’s history and tradition.”

Moore v. East Cleveland, 431 U.S. 494, 503 (1977); see also

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851

(1992).

A “right” to drive to work does not resemble any of these

categories. To be sure, the liberty component of the Due

Process Clause includes a generalized right to choose one’s

field of employment, but that right is subject to reasonable

government regulation. Conn v. Gabbert, 526 U.S. 286,

291–92 (1999) (collecting cases). “[I]t is well-recognized that

the pursuit of an occupation or profession is a protected

liberty interest that extends across a broad range of lawful

occupations[,]” although the precise contours of this liberty

interest have not been defined. Dittman v. California,

FRANCESCHI V. YEE 15

191 F.3d 1020, 1029 (9th Cir. 1999) (quoting Wedges/Ledges

of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 65 n.4 (9th Cir.

1994)). What is clear is that, as observed by the Supreme

Court, “the line of authorities establishing the liberty interest

[in pursuing a profession] ‘all deal[] with a complete

prohibition of the right to engage in a calling[.]’” Id. (quoting

Conn, 526 U.S. at 292).

Franceschi argues that the enforcement of Sections 19195

and 494.5 violates his liberty interest in the pursuit of his

profession because the ability to drive is essential to a

“meaningful” pursuit of the practice of law and, thus, the

suspension of an attorney’s driver’s license for reasons

unrelated to public safety and solely attributable to tax

indebtedness materially interferes with his constitutionally

protected liberty interest to practice law without

inconvenience.

This contention has no merit for the obvious reason that

the revocation of his driver’s license does not operate as a

complete prohibition on his ability to practice law, which it

must to violate substantive due process. Franceschi attempts

to sidestep this straightforward requirement by arguing that

a driver’s license is “indispensable” to the practice of law

while at the same time conceding that “it may be possible to

get to some courts on a bus or other public transportation.”

He nevertheless argues doing so would be burdensome and

time consuming. No doubt an inability to drive oneself

around Los Angeles could make the practice of law more

difficult. However, Franceschi still has access to public

transit, taxis, or services such as Lyft or Uber. Accordingly,

whatever burden may exist does not amount to a “complete

prohibition” on Franceschi’s ability to practice law, and thus,

does not rise to a violation of substantive due process. See

16 FRANCESCHI V. YEE

Lowry v. Barnhart, 329 F.3d 1019, 1023 (9th Cir. 2003)

(holding that an “indirect and incidental burden on

professional practice is far too removed from a complete

prohibition to support a due process claim”).

To resist this conclusion, Franceschi cites Arizona Dream

Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014), for

the proposition that the inability to obtain a driver’s license

will likely result in irreparable harm. However, Arizona

Dream Act Coalition is inapposite. There, the plaintiffs were

undocumented immigrants who were brought to the United

States as children and were allowed to remain pursuant to a

federal program then in existence (the Deferred Action for

Childhood Arrivals program). Id. at 1057–58. Arizona

officials implemented a policy that denied driver’s licenses to

these individuals. Id. at 1058. The plaintiffs sought a

preliminary injunction prohibiting the implementation of the

policy, arguing that it violated the Equal Protection Clause

and the Supremacy Clause. Id. The district court concluded

that the policy violated the Equal Protection Clause but

nonetheless denied the request for a preliminary injunction.

Id. In reversing, this Court concluded that the plaintiffs

demonstrated a likelihood of success on their equal protection

claim and were likely to suffer irreparable harm unless the

policy was enjoined because the lack of a driver’s license

“diminished their opportunities to pursue their chosen

professions.” Id. at 1068.

Here, Franceschi contends that in Arizona Dream Act

Coalition, this Court implicitly recognized that the

deprivation of a driver’s license does not need to amount to

a “complete prohibition” on the ability to pursue a profession

for substantive due process purposes. All that needs to be

shown, he contends, is that it operates as a “limitation” or

FRANCESCHI V. YEE 17

“diminishes opportunity” to pursue a chosen profession.

However, Arizona Dream Act Coalition says nothing of the

sort. On the contrary, Arizona Dream Act Coalition involved

an equal protection claim and sheds little light on

Franceschi’s substantive due process claim. Concluding that,

where plaintiffs have shown a likelihood of success on the

merits of their equal protection claims, the denial of a driver’s

license would cause irreparable harm as required to support

the issuance of an injunction, does not establish that the

denial of a driver’s license would amount to a substantive due

process violation. Concededly, the revocation of

Franceschi’s driver’s license will complicate his law practice.

But this complication is not a substantive due process

violation since it does not amount to a complete prohibition

on his ability to practice law. See Lowry, 329 F.3d at 1023.

Even if Sections 19195 and 494.5 operated as a de facto

complete prohibition on Franceschi’s ability to practice

law—which they do not—the sections would still withstand

constitutional scrutiny. A state may regulate entry into a

profession, so long as the regulation is rationally related both

to a legitimate state interest and to the applicant’s fitness or

capacity to practice the profession. Dittman, 191 F.3d at

1030. When reviewing a challenge to a legislative act that

does not infringe on a fundamental right, rational basis review

applies, under which we need only determine “whether the

legislation has a ‘conceivable basis’ on which it might

survive constitutional scrutiny.” Id. at 1031 (quoting Lupert

v. Cal. State Bar, 761 F.2d 1325, 1328 (9th Cir. 1985)).

Here, the ability to practice law in California is not a

fundamental right, and Section 494.5 is related to a legitimate

state interest: the collection of tax revenue. The government

obviously has a powerful interest in the prompt collection of

18 FRANCESCHI V. YEE

revenue. See Phillips, 283 U.S. at 597. The “[f]ailure to

honor legal commitments and obligations is a proper ground

for refusing to issue a certificate as to the possession of the

requisite character and moral fitness” for the practice of law.

Dittman, 191 F.3d at 1032 (alteration in original) (citation

omitted). It is therefore rational for California to require that

those who practice law be current on tax obligations as a

condition of licensure, as their failure to do so could speak to

moral character. See id.; c.f. People v. Cully, 675 N.E.2d

1017, 1024 (Ill. Ct. App. 1997) (noting that “[i]f the licensee

culpably does not repay [his student loan], this calls his moral

character into question and could constitute conduct that

defrauds or harms the public”). Accordingly, the challenged

statutory scheme does not impermissibly burden Franceschi’s

chosen profession.

2. Retroactivity

Franceschi argues that the statutory scheme—and

specifically Section 494.5’s 2012 enactment—violates

substantive due process by operating retroactively to impose

a penalty that did not exist at the time his tax deficiencies

were first assessed in 1995. A statute does not operate

retroactively “merely because it is applied in a case arising

from conduct antedating the statute’s enactment, or upsets

expectations based in prior law.” Landgraf v. USI Film

Prods., 511 U.S. 244, 269 (1994) (internal citation omitted).

A statute operates retroactively when it “attaches new legal

consequences to events completed before its enactment.” Id.

at 269–70; see also Gen. Motors Corp. v. Romein, 503 U.S.

181, 191 (1992).

Section 494.5 does not operate retroactively because it

does not sanction Franceschi for past conduct: the incurrence

FRANCESCHI V. YEE 19

of past-due tax obligations. Rather it is his current refusal to

discharge his tax obligations that exposes him to license

revocation. In other words, the effective date of Section

494.5 is not dispositive because Section 494.5’s sanction is

dependent on a taxpayer’s current conduct (whether a

taxpayer takes steps to discharge a past-due tax obligation)

and not on past conduct (the incurrence of a past-due tax

obligation). Consequently, Section 494.5 does not attach new

legal consequences to events completed before its enactment.

Moreover, after Section 494.5 was enacted, Franceschi

received additional proposed assessments in April 2012,

March 2013, and March 2014, all of which he ignored. For

these reasons, this substantive due process claim fails.

C. Equal Protection

The Fourteenth Amendment provides that “[n]o state shall

. . . deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend. XIV, § 1.

Governmental conduct, such as revocation of a driver’s

license, that “neither proceeds along suspect lines nor

infringes fundamental constitutional rights” is subject to

rational basis review and, as such, does not violate the Equal

Protection Clause “if there is any reasonably conceivable

state of facts that could provide a rational basis for the

classification.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307,

313 (1993) (citation omitted); see also Armour v. City of

Indianapolis, 566 U.S. 673, 680 (2012).

Franceschi argues that Section 494.5, together with

Section 19195, impermissibly singles out taxpayers who fall

within the class of California’s 500 largest tax delinquents

(provided they owe more than $100,000). Franceschi

contends that because this selection criteria has the effect of

20 FRANCESCHI V. YEE

meting out unequal treatment to similarly situated

individuals, it is arbitrary and unreasonable.6

We have no difficulty in concluding that a citizen’s

failure for nearly twenty years to pay unusually large amounts

of past-due taxes supplies a rational basis for the state’s

action. This is especially so because legislatures have

particularly “broad latitude in creating classifications and

distinctions in tax statutes.” Armour, 566 U.S. at 680

(quoting Regan v. Taxation With Representation of Wash.,

461 U.S. 540, 547 (1983)).

California has a legitimate—and significant—interest in

the prompt collection of tax revenue. See Jolly, 764 F.2d at

646. As the District Court correctly concluded, the California

legislature’s decision to single out the 500 individuals and

corporations with the largest tax delinquencies via Section

19195 and then impose sanctions on that group through

Section 494.5 is rationally related to California’s legitimate

interest in the prompt collection of tax revenue. Although the

California legislature could have established an incrementally

higher or lower threshold for tax delinquency, that the

legislature chose a $100,000 cutoff does not render the

statutory scheme unconstitutional. See Beach Commc’ns, 508

U.S. at 316 (noting that “the fact [that] the line might have

been drawn differently at some points is a matter for

legislative, rather than judicial, consideration” (alteration in

6

For the first time on appeal, Franceschi argues that the public

disclosure of his alleged tax liability on the Top 500 List violates his right

to privacy under the California Constitution. We decline to reach this

contention. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)

(observing that, as a general rule, the court does not consider arguments

that are raised for the first time on appeal).

FRANCESCHI V. YEE 21

original) (quoting U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166,

179 (1980))). For these reasons, Franceschi’s equal

protection claim fails.

D. Bill of Attainder

Franceschi next contends that Sections 19195 and 494.5

together constitute a bill of attainder. The Constitution

provides that “[n]o State shall . . . pass any Bill of

Attainder[.]” U.S. Const. art. I, § 10, cl. 1.7 A bill of

attainder is “a law that legislatively determines guilt and

inflicts punishment upon an identifiable individual without

provision of the protections of a judicial trial.” SeaRiver

Mar. Fin. Holdings Inc. v. Mineta, 309 F.3d 662, 668 (9th

Cir. 2002) (quoting Nixon v. Adm’r of Gen. Servs., 433 U.S.

425, 468 (1977)); see also Fowler Packing Co., Inc. v.

Lanier, 844 F.3d 809, 817 (9th Cir. 2016).

The key features of a bill of attainder are “that the statute

(1) specifies the affected persons and (2) inflicts punishment

(3) without a judicial trial.” SeaRiver, 309 F.3d at 668 (citing

Selective Serv. Sys. v. Minn. Pub. Interest Research Grp.,

468 U.S. 841, 847 (1984)). The “clearest proof” is required

before courts can conclude that a legislative enactment is as

a bill of attainder. Id. (citing Communist Party of United

7

The United States Constitution contains two sections prohibiting the

passage of a bill of attainder, one aimed at the federal government (Article

I, Section 9, Clause 3) and one aimed at the states (Article I, Section 10,

Clause 1). The same analysis applies to both sections. See SeaRiver Mar.

Fin. Holdings Inc. v. Mineta, 309 F.3d 662, 672 n.6 (9th Cir. 2002); see

also Fowler Packing Co., Inc. v. Lanier, 844 F.3d 809, 816 n.5 (9th Cir.

2016). Accordingly, we rely on cases interpreting either section in

assessing the constitutionality of Sections 19195 and 494.5.

22 FRANCESCHI V. YEE

States v. Subversive Activities Control Bd., 367 U.S. 1, 83

(1961)).

Not every law which burdens some persons or groups is

a bill of attainder; after all, practically every law burdens

someone. “How the class is designated and what purposes

the law furthers governs the specificity analysis[.]” United

States v. Munsterman, 177 F.3d 1139, 1142 (9th Cir. 1999).

“If a law merely designates a properly general characteristic

. . . and then imposes upon all who have that characteristic a

remedial measure reasonably calculated to achieve a

nonpunitive purpose,” there is no attainder. Id. (quoting

Laurence H. Tribe, American Constitutional Law § 10-4 at

643 (2d ed. 1988)). Franceschi contends that the combined

effect of Sections 19195 and 494.5 is to single out the largest

500 tax debtors for legislative punishment and for these

reasons the sections constitute a bill of attainder. This

contention has no merit.

In considering whether a statute singles out a person or

class, we look to various established guideposts. See

SeaRiver, 309 F.3d at 669. “First, we look to whether the

statute or provision explicitly names the individual or class,

or instead describes the affected population in terms of

general applicability.” Id. (citation omitted). Sections 19195

and 494.5 do not expressly name Franceschi. He does not

contend that when the provisions were enacted anyone in the

legislature had him in mind as opposed to the thousands of

other residents who were persistently delinquent in their

taxes. To the contrary, Section 19195 is couched in general

terms and Section 494.5 simply refers to Section 19195.

Accordingly, this factor weighs against the conclusion that

the Sections constitute a bill of attainder.

FRANCESCHI V. YEE 23

Second, we determine “whether the identity of the

individual or class was ‘easily ascertainable’ when the

legislation was passed.” Id. (quoting United States v. Brown,

381 U.S. 437, 448–49 (1965)). The group of the 500 largest

tax delinquents with delinquencies over $100,000 was no

doubt ascertainable at the time Section 494.5 was enacted, as

the list could have been calculated. But this fact adds little to

the analysis because the list was fluid. Such taxpayers may

have paid their taxes, prevailed in litigation, died, or filed for

bankruptcy. Thus, at the time Section 494.5 was enacted,

there was manifest uncertainty as to who would be affected.

“Third, we examine whether the legislation defines the

individual class ‘by past conduct [that] operates only as a

designation of particular persons.’” Id. (alteration in original)

(quoting Selective Serv. Sys., 468 U.S. at 847). “Thus, this

third inquiry seeks to determine whether the statute is

retrospective, or whether it carries the potential to encompass

a larger class than the individual or group allegedly targeted.”

Id. at 670.

As noted, the Top 500 List is not static. Section 19195

directs the FTB to update the list twice a year, and the

500 largest tax delinquents will not necessarily remain the

same on different versions of the List. In this way, Sections

19195 and 494.5 can affect a growing number of persons over

time and their effect is not limited to any particular group in

existence at the time of the statute’s enactment. Accordingly,

this factor weighs against the conclusion that Sections 19195

and 494.5 specify the affected persons.

Franceschi, however, argues that the Top 500 List’s

fluidity is “of no moment” because the category itself, the

“Top 500 tax delinquents,” remains constant even though

24 FRANCESCHI V. YEE

particular members “come and go” from the list. In support,

Franceschi cites Brown, 381 U.S. 437. This argument makes

no sense. If names “come and go” from a list, then the list

does not remain constant. Moreover, Franceschi

misunderstands both Brown and the specificity requirement.

In Brown, the Supreme Court held that a statute that imposed

criminal liability upon Communist Party members who

became officers in labor unions was a bill of attainder.

Brown, 381 U.S. at 456)62. In doing so the Supreme Court

rejected the argument that the challenged statute did not

constitute a bill of attainder because it did not “inflict[] its

deprivation” upon named individuals but instead targeted the

membership of the Communist Party. Id. at 461 (“We cannot

agree that the fact that [the challenged statue] inflicts its

deprivation upon the membership of the Communist Party

rather than upon a list of named individuals takes it out of the

category of bills of attainder.”). However, the Supreme Court

in Brown held that certain individuals were targeted, and, as

such, the specificity requirement was clearly met there. See

id. at 452 (“The moment [the challenged statue] was enacted,

respondent was given the choice of declining a leadership

position in his union or incurring criminal liability.”).

Tellingly, the statute in question in Brown had a trailing five-

year disqualification period: it disqualified from holding

union office not just present members of the Communist

Party but also any one who within the previous five years had

been a member of the Communist Party, an easily

ascertainable group. See id. at 458. The situation here is

different. Franceschi does not dispute that the group of

taxpayers who find themselves subject to suspension is not

static. And even more importantly, these taxpayers have the

power to escape license revocation by fulfilling their tax

obligations.

FRANCESCHI V. YEE 25

“Finally, we review whether the past conduct defining the

affected individual or group consists of ‘irrevocable acts

committed by them.’” SeaRiver, 309 F.3d at 669 (quoting

Selective Serv. Sys., 468 U.S. at 848). “If the defining act is

irrevocable, the individual or class may not escape the effect

of the legislation by correcting the past conduct, thereby

exiting the targeted class.” Id. at 671 (citing Selective Serv.

Sys., 468 U.S. at 851). Sections 19195 and 494.5 do not

focus on irrevocable conduct. The non-payment of

delinquent taxes is the action that led Franceschi (and others)

onto the Top 500 List and to license suspension. A taxpayer

can escape publication on the Top 500 List (and the attendant

consequences) by, among other ways, making other payment

arrangements with the FTB for full satisfaction of the tax

delinquency, filing for bankruptcy protection, or making

payment arrangements satisfactory to the FTB. See Cal. Rev.

& Tax. Code § 19195(b). Franceschi argues that it “appears”

that the exemptions and releases from a Top 500 List are

granted or denied in a “completely arbitrary and capricious

manner,” and that, as such, the methods which the statute

provides for exiting the list are “largely illusory.” However,

Franceschi does not allege that he ever applied for or was

denied a release from the Top 500 List, arbitrarily or

otherwise. In the absence of plausibly pleaded allegations of

arbitrary and capricious administration of the Top 500 List,

we need not entertain his bare argument on appeal that the list

is administered in such a manner.

In sum, far from being triggered by past and ineradicable

actions, license suspension as a result of Sections 19195 and

494.5 turns on the continuing fact of nonpayment, something

which a delinquent taxpayer can rectify. Selective Serv. Sys.,

468 U.S. at 851 (citing Communist Party, 367 U.S. at 81).

Because all the relevant guideposts point against Franceschi,

26 FRANCESCHI V. YEE

and because he has unquestionably not adduced the “clearest

proof” that the statutory scheme constitutes a bill of attainder,

we reject his contention that the statutory scheme constitutes

a bill of attainder.8

III. CONCLUSION

For these reasons, we AFFIRM the judgment of the

District Court.9

8

Because Franceschi fails to show that Sections 19195 and 494.5

meet the specification prong of a bill of attainder claim, we need not

consider whether the statutory scheme inflicts punishment or fail to

provide a judicial trial. See Fowler Packing Co., 844 F.3d at 809

(explaining that where one element is not satisfied, “we need not address

whether [the statutes] satisfy the other two elements of a bill of attainder

claim”).

9

We GRANT Franceschi’s unopposed motions, filed February 24,

2015 and February 27, 2015, to take judicial notice of orders in other

proceedings. See United States v. Navarro, 800 F.3d 1104, 1109 n.3 (9th

Cir. 2015). We also GRANT Appellees’ unopposed motion, filed April

30, 2015, to take judicial notice of legislative history pertaining to Section

494.5. See Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012).