Petition for Writ of Certiorari — Warden v. California State Bar

Court, U.S.

FILED

991194 JAN 14 2000

No. OBPICE O6 {HE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1999

LEW WARDEN,

Petitioner,

vs

THE STATE BAR OF CALIFORNIA,

LORNA MAYNARD, CAROLE ROSSI,

Respondents.

On Petition For Writ Of Certiorari

To The Supreme Court of the

State of California

PETITION FOR WRIT OF CERTIORARI

Lew Warden

Petitioner Pro Se.

9121 E. Tanque Verde #105-146

Tucson, Arizona 85749

Tel: (520) 760-2809

Fax: (520) 760-2856

QUESTIONS PRESENTED FOR REVIEW

The State Bar of California, pursuant

to a mandatory continuing legal education

program, summarily suspended petitioner’s

license to practice law for non-compliance,

raising the following questions presented

for review:

1. Does a Rule of Court which requires cer-

tain members the State Bar, as a condition

of their right to continue to practice law,

to engage in courses of study approved by

the State Bar, while exempting from such

burden other members who are retired judges,

State officers and elected officials, cer-

tain law school professors, and employees

of the State of California and the federal

government acting within the scope of their

employment, violate the Equal Protection

Clause of the 14th Amendment of the Consti-

tution?

2. Is the right to practice law, once gran-

ted by a state, a fundamental right of a

citizen of that state protected by the Cit-

izenship, Equal Protection, and Due Process

Clauses of the 14th Amendment?

3. By suspending petitioner’s right to

practice law, without first affording him a

hearing, for failing to comply with its con-

tinuing legal education program, did the

California State Bar violate the Due Pro-

cess Clause of the 14th Amendment?

4. By suspending petitioner’s right to

practice law for failing to perform 12 hours

of study approved by the State Bar, did the

California State Bar violate the Due Process

Clause of the 14th Amendment?

(Questions, cont.)

5. By suspending petitioner’s right to

practice law for failing to perform 12 hours

of study approved by the State Bar, did the

California State Bar violate the Excessive

Fines and Cruel and Unusual Punishment

Clauses of the 8th Amendment?

6. Where the enabling statute and rule of

court permit all affected members of the

State Bar of California to perform 36 hours

of approved study within a 36 month period,

did the State Bar of California violate the

Equal Protection Clause of the 14th Amend-

ment by suspending his right to practice

law for failing to perform 12 hours of such

study within a 12 month period while other

members were extended a period of 24 months

within which to perform 24 hours of such

study, and yet other members were extended

the full period of 36 months within which

to perform 36 hours of such study, before

suffering suspension?

7. Should the Court, in the event it finds

petitioner’s constitutionally guaranteed

rights have been infringed in any particular,

direct the California court to allow petiti-

oner’s cause of action for damages under 42

U.S.C. sec. 1983 to proceed to trial?

x*keR

TABLE OF CONTENTS

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THE CASE

STATEMENT OF THE CASE

A. California’s Mandatory Contin-

uing Legal Education program

B. The Impact of The State Bar’s

MCLE Program on Petitioner and

Others Similarly Situated

C. Petitioner’s Contentions in the

Courts Below, and Their Responses

REASONS FOR GRANTING THE WRIT

1. The California Court’s Decision

Conflicts With Decisions of This

Court That the Right to Engage in

the Common Occupations of Life, Inc-

luding the Practice of Law, is a

Fundamental Right Protected by the

Privileges and Immunities, Equal

Protection, and Due Process Clauses

of the 14th Amendment

2. The Decisions of Federal Courts

of Appeal That the Right to Engage

in the Common Occupations of Life,

Including the Practice of Law, is a

Fundamental Right Protected by the

14th Amendment, Are in Conflict

iii

18

20

22

(Table of Contents, cont.) page

3. The California Court’s "Rational

Basis" Test Takes This Court’s State-

ments in FCC vs Beach Communications

to Unreasonable Extreme. 23

4. The California Court’s Decision

Conflicts With Decisions of This

Court That the Right to Pursue a

Lawful Occupation, Once Granted by

the State, May Not Be Suspended With-

out a Prior Hearing 27

5. The Sole Sanction of Suspension

From Practice Is Arbitrary and Dispro-

portionate to The Offense 29

CONCLUSION 30

zx*e

TABLE OF AUTHORITIES

bes : page

Opinions of the United States

Supreme Court:

Alexander v. United States

(1993) 509 U.S. 544 17, 29

Barnard vy. Thorstenn

(1989) 489 U.S. 546 29

517 U.S. 559 (1996) 30

(1972) 408 U.S. 564 28

Central State Uni : P

Ass'n of University Professors

(1999) 119 S.Ct. 1162 22

(1977) 429 U.S. 624 iS, 28, 29

Fertilizer Works

(1914) 237.0.8. 423 28

iv

(Table of Authorities, cont.)

Eisenstadt v. Baird

(1971) 405 U.S. 438

(1993) 508 U.S. 307 ,

(1987) 482 U.S. 641

Meyer v. Nebraska

(1923) 262 U.S. 390

Nordlinger v. Hahn (1992) 505 U.S.

Planned Parenthood v. Casey

(1992) 505 U.S. 833

(1981) 457 U.S. 202 i

a ea. 1519 (1999) _

Spevack v. Klein

(1967) 385 U.S. 511 :

Sunremtoea) 470, U.S 274 9, 16,

_ (1872) 16 Wall. 36

Yick Wo v. Hopkins

(1885) 118 U.S. 356

Opinions of the Federal Courts

of Appeal:

Lebbos v. Judges of Super. Ct.,

Santa Clara County (9th Cir. 1989)

883 F.2d 810

Lup

(9th Cir. 1985)

761 F.2d 1325 9,

to

22,

25

27

22

23

(Table of Authorities, cont.)

Verner v. State of Colorado

(10th Cir. 1983) 716 F.2d 1352

Opinions of State Courts:

Bixby v. Pierno (1971) 4 Cal.3d 130

Hughes v. Board of Architectural

Examiners (1998) 17 Cal.4th 763

Matter of Smith (1997) 189 Ariz. 144,

939 P.2d. 422 15

a’

(1971) 5 Cal.3d 1 20

United States Constitution:

Amendment VIII AZ?» 49

Amendment XIV 16, 20, 21, 26,5 22

Federal Statutes:

42 U.S.C. sec. 1983 8

State Statutes:

California Bus. & Prof. Code

sec. 101 19

sec. 166 19

sec. 6070 £, 5, 6, ia

State Rules of Court:

California Bar Association

MCLE Rules & Regulations +; me Oe FT

Publications:

N.Y. State Bar Assn., Comparison

of the Features of Mandatory Con-

tinuing Legal Education Rules in

Effect as of July 1998 (1998) 18

xkek

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ

of certiorari issue to review the

judgments below.

OPINIONS BELOW

The opinion of the Supreme Court of

the State of California which petitioner

asks this Court to review, was filed and

entered on August 26, 1999. (Appendix A,

pp. 1-65.) It is published as Warden v.

State Bar (1999) 21 Cal.4th 628, 88 Cal.

Rptr.2d 283, 982 Pac.2d 154.

The opinion of the California Court

of Appeal, First Appellate District,

which the California Supreme Court, in

large part, reversed, was filed March 13,

1997. (App. B, pp. 66-121.) It is pub-

lished as_Warden v. State Bar (1997) 62

Cal.Rptr.2d 32.

The summary judgment of the Superior

Court for the State of California, County

of Alameda, which the California Supreme

Court sustained, was filed October 18, 1995.

(App. D, pp. 123-124.) The Superior Court’s

order making findings upon which its judg-

ment is based was filed September 14, 1995.

(App. D., pp. 125-127.) The judgment and

order were not published.

JURISDICTION

The judgment of the California Supreme

-l-

Court was entered on August 26, 1999. Timely

petition for rehearing was denied on October

20, 1999. (App. C, p. 122.)

The jurisdiction of this Court is in-

voked under 28 U.S.C. sec. 1257(a).

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED IN THE CASE

United States Constitution:

Article IV, sec. 2, cl. 1: The Citizens

of each State shall be entitled to all Pri-

vileges and Immunities of Citizens in the

several States.

Amendment V: No person shall be... de-

prived of life, liberty, or property, with-

out due process of law... .

Amendment VIII: Excessive bail shall not

be required, nor excessive fines imposed,

nor cruel and unusual punishment inflicted.

Amendment IX: The enumeration in the Con- J

stitution, of certain rights, shall not be

construed to deny or disparage others re-

tained by the people.

Amendment XIV, Section 1: All persons

born or naturalized in the United States,

and subject to the jurisdiction thereof,

are citizens of the United States and of

the States wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall

any State deprive any person of life, lib-

erty, or property, without due process of

law; nor deny to any person within its

jurisdiction the equal protection of the

laws.

-2-

California Statutes and Rules:

Business & Professions Code

Section 6070, directing State Bar to

request Supreme Court to adopt a

mandatory continuing legal education

program, is set forth in Appendix E,

pp. 128-129.

Section 6125, limiting the practice of

law to active members of the State Bar

is set forth in Appendix E, p. 129.

Rules of Court

Rule 958, authorizing State Bar to est-

ablish and administer a minimum conti-

nuing legal education program, is set

forth in Appendix F, pp. 130-131.

State Bar Rules

State Bar MCLE Rules and Regulations are

set forth in Appendix G, pp. 132-139.

STATEMENT OF THE CASE

A. California’s Mandatory Continuing

Legal Education program.

The proceedings before the California

courts arose out of a mandatory continuing

legal education program (herein MCLE) which

the California Legislature and the Supreme

Court of California in 1989, at the request

of the California State Bar, authorized the

State Bar to establish and administer. (Op’n

Cal. Supreme Court, App. A, pp. 3-9.)

That same year the State Bar adopted

its Rules and Regulations governing the MCLE

program. The expressly stated purpose of the

program was to "assure that, through-out

-3-

their careers, California attorneys [not spe-

cifically exempted] remain current regarding

the law, the obligations and standards of

the profession, and the management of their

their practices." (Rule 1.0, App. G, p. 132,

emphasis added; cf. App. A, p. 3, where the

the California Supreme Court concluded that

MCLE’s purpose is to "enhance competency.")

By subsection (a) of Bus. & Prof. Code

sec. 6070, the California Legislature direc-

ted the State Bar to "request" the California

Supreme Court to adopt a rule authorizing

the State Bar to establish and administer a

MCLE program, which applied to "all active

members of the State Bar." However, subsec-

tion (c) exempted "retired judges, officers

and elected officials of the State of Cali-

fornia, full-time professors at law schools

accredited by the State Bar of California

[or] the American Bar Association...

[and] full-time employees of the State of

California, acting within the scope of their

employment".

Although initially, the State Bar had

asked for a program which applied to all men-

bers of the State Bar, without exception,

when the matter was proposed to the state

Legislature, there was opposition from legis-

lators who "‘didn’t want to be dragged into

a Classroom.’" (Op’n, Court of Appeal, App.

B, p. 81.) The exemptions for retired jud-

ges and law professors followed from expres-

sions of similar sentiments. (Ibid. )

Pursuant to the State Bar’s request,

the California Supreme Court then adopted

Rule 958 incorporating the exemptions spe-

cified by the Legislature, and, in response

to "public comment", adding exemptions for

full-time time employees of the United States

Government acting within the scope of their

-4=-

employment and for such other attorneys as

might be exempted by the State Bar. (App.

A, pp. 5-7.)

Pursuant to Rule 958, the State Bar

adopted its MCLE Rules & Regulations which

incorporated the exemptions specified by

Section 6070(b) and Rule 958. A committee

of the State Bar then interpreted the grant

of exemption to members who are "retired

judges" to extend to retired judges of

courts other than the State of California.

(App. A, pp. 10-11, fn. 5.)

Section 6070(a) and Rule 958(c) speci-

fied that each non-exempt member must con-

plete 36 hours of legal education approved

by the State Bar within designated 36 month

periods, and required that of such 36 hours,

eight must be in law practice management and

legal ethics. (App. E, F, pp. 128, 130.)

Rule 958(c) authorized the State Bar to re-

quire legal education in "other specified

areas." (App. F, p. 130.)

The State Bar MCLE rules added the re-

quirements that at least one of the 36 hours

of approved study must "relate to prevention

detection, and treatment of substance abuse

and emotional distress", and that at least

one of such 36 hours must "relate to elimi-

nation of bias in the legal profession", in-

Cluding but not limited to bias as to "Sex,

color, race, religion, ancestry, national

origin, blindness or other physical disabi-

lity, age, and sexual orientation." (App. G,

Dp. 132; )

The State Bar divided its membership

into three groups, classifying the members

of each group according to the initials of

their last names and requiring that, for

the first year the program was in effect,

-5~

the members of the first group, which in-

cluded petitioner, must complete 12 hours

of study by January 31, 1993, the members

of the second group must complete 24 hours

of study by January 31, 1994, and the men-

bers of the third group would have until

January 31, 1995, to complete the full 36

hours of study for the first three year

period. (App. G, pp. 133-134.)

Both section 6070(c) and Rule 958(d)

provide that a member who fails to "satisfy"

the "requirements" of the program "shall be

enrolled as an inactive member .. . under

rules adopted by the Board of Governors."

(Apps. E, F, pp. 128, 131.) Rule 958(e) ad-

ded that the State Bar shall have the auth-

ority to "set and collect appropriate fees

and penalties." (App. F, p. 131.) However,

although the State Bar Rules specify some

five different acts which constitute non-

compliance (App. G, pp. 136-137), the sole

penalty set for of any one of these acts is

enrollment as an inactive member of the

State Bar. (App. G, p. 137.)

To lawfully practice law in California

one must be an active member of the State

Bar. (App. E, p. 129.

Although the MCLE rules provide for due

process hearings for certain providers of

legal education before their status as app-

roved providers may be revoked (App. G, p.

136), they expressly provide that enrollment

as an in active member for failing to comply

with the rules is "administrative in nature

and no hearing is required." (App. G, pp.

138-129.)

One enrolled as an inactive member for

failing to comply with the MCLE rules is still

required to pay State Bar membership fees.

~A

(App. G, p. 139.)

There are no studies determining whe-

ther exempted members of the State Bar are

more competent, knowledgeable, or current

in the law or the subjects of required legal

study, than non-exempt members. (App. J,

Fact #84, p. 176.)

There are no studies determining whe-

ther the MCLE program has resulted in any

improvement in the competency or currency

of compliant members. (App. J, Fact #88,

p. 177.)

B. The Impact of The State Bar’s MCLE

Program on Petitioner and Others Similarly

Situated.

At the time of his suspension from the

practice of law in July, 1993, petitioner,

then 73 years of age, had been a member of

the California State Bar since 1953, and was

admitted to practice before all California

courts, the federal courts for the Northern,

Central, and Southern Divisions of California,

the Tax Court of the United States, the Court

of Appeals for the Ninth Circuit, and the Uni-

ted States Supreme Court. (App. J, Facts ##1,

2, pp. 153-154.) At all times petitioner had

been in good standing with the State Bar,

without any censure, public or private. (Id.,

Fact #3, p. 154.)

At the time of his suspension, petition-

er’s sole means of earning the livelihoods

of himself and his wife was by the practice

of law. (Id., Fact #4.) Petitioner believed

that Rule 958 and Bus. & Prof. Code sec.

6070 gave him a period of three years within

which to comply with the 36 hours of required

study or retire from the practice of law,

and that the classifications of the initial

~FJa

compliance periods disfavored him and other

similarly situated members over members with

different last name initials. (Id., Fact #138,

pp. 188-189.)

On July 19, 1993, petitioner and some 412

other members of the State Bar were summarily

suspended from practice for failing to comply

with the MCLE rules for the first year the

program was in effect. (Id., Fact #23, p.

159.)

After suspending petitioner and the other

disaffected members, the State Bar sent not-

ices to some 588 courts, agencies, and bar

associations throughout the United States by

a form which lumped members who were suspen-

ded for failing to comply with MCLE require-

ments with other members who had been dis-

barred or otherwise disciplined for ethics

violations, which caused a federal judge to

refer to petitioner as a "disbarred" attorney

when he called the matter in his courtroon.

(Id, Facts ## 23, 24, 123, 124, pp. 159,

184-185. )

On May 2, 1994, petitioner filed comp-

laint in the California Superior Court for

the County of Alameda against the State Bar

and three individual employees, alleging

that he had been summarily suspended from

practice by the State Bar for failure to

comply with its MCLE program, that such sus-

pension violated his rights to procedural

and substantive due process of law and to

the equal protection of the laws and that

he had suffered damages compensable under

section 1983 of the federal Civil Rights

Acts. (App. H, pp. 140-150.)

After extended discovery, respondents

moved for summary judgment, asserting, on

the authority of j

-B-

ale a ly WS ais ty

Bar (9th Cir. 1985) 761 F.2d 1325, 1327-1328,

cert. denied 474 U.S. 916, that there is no

fundamental right to practice law. Respond-

dents further asserted that the pertinent

statute and rules were subject to equal pro-

tection review meeting only the rational

basis standard, that petitioner had received

adequate notice that he would be suspended

if he failed to comply, that a hearing was

not required because there were no issues of

fact to be resolved, and that the State Bar

and its employees were immune from liability

in any event.

Petitioner opposed respondent’s summary

judgment, asserting, on the authority of Sup-

i (1984) 470 U.S.

274, 280-281, and

(9th Cir. 1989) 883

F.2d 810, 818, that the right to practice

law, once established, was a fundamental right

protected by the Privileges and Immunities

and Due Process Clauses of the federal Con-

stitution, that the equal protection issues

called for strict scrutiny but that the dis-

criminations shown could not pass rational

basis muster in any event, that a hearing was

appropriate to resolve the constitutional

issues, and that respondents were not immune

under federal law.

The Superior Court granted summary judg-

ment on all points raised by respondents.

(App. D, pp. 123-127.)

C. Petitioner’s Contentions in the Courts

Below, and Their Responses.

1. Petitioner contended at all stages of the

proceedings below that the State Bar’s MCLE

program and the manner in which it was app-

lied to him and other members of the State

Bar similarly situated violated the Equal

-9-

Protection Clause of the 14th Amendment in

the following particulars:

a. That the exempting of members of the

State Bar who are full-time law professors

of State Bar or American Bar Association

accredited law schools, retired judges of

California courts and the courts of other

jurisdictions, state officers and elected

officials, and full-time employees of the

State of California and the federal govern-

ment, from the burdens of the MCLE program

violated petitioner’s right to the equal

protection of the laws. (App. H, pp. 144-

145; App. I, pp. 151-152; App. J, Facts

##42-57, pp. 164-168; App. K, p. 192; App.

L, p- 194; App. O, pp. 199-201.)

(1) The trial court’s disposition of the

exemptions/equal protection issue.

Without specific reference to the ex-

emptions issue, the trial court found that

there was no evidence that petitioner had

been denied equal protection. (App. D, p.

126.)

(2) The Court of Appeal’s disposition of

the exemptions/equal protection issue.

The three-justice Court of Appeal panel

rejected petitioner’s contention that because

his fundamental right to earn a living by

practicing law had been infringed, a strict

scrutiny test was required. (App. B, pp.

77.) Instead, it decided that its obliga-

tion was to determine whether the classifi-

cation scheme bore a "rational relationship

to a legitimate state purpose." (Ibid. )

However, in doing so, the court held that

it was obliged to conduct a "serious and

genuine judicial inquiry" (Id, p. 78.)

-10-

Thus, the court considered the legis-

lative history of section 6070 and concluded

that the exemptions for officers and elected

officials, retired judges, and law professors

been granted because of the opposition of

members of such groups to being burdened by

compulsory classroom study. (Id., pp. 79-

81.) The court decided that this did not

constitute a "rational" basis for the exemp-

tions, and, finding no other, unanimously

held that the exemptions of law professors,

retired judges, and state officers and elec-

ted officials violated the equal protection

Clause of the federal Constitution. gt oe

pp. 79-89.)

(3) The California Supreme Court’s disposi-

tion of the exemptions/equal protection

issue.

The California Supreme Court, by a 4 to

2 majority, and substantially on the author-

ity of j i

(1993) 508 U.S. 307, 313, 315, held that the

Court of Appeal should have applied a "rati-

onal relationship" test which required it to

ignore the facts of the statute’s legisla-

tive history and to engage in "rational spec-

ulation" in search of "plausible reasons"

or “reasonably conceivable state[s] of "facts"

to explain why a hypothetical legislature

might have granted the exemptions. (App. A,

pp. 38. The majority then found "at least

two ‘plausible reasons’ that rationally

could support each of the exemptions in

question." (Id., 28.)

First, the Court majority decided, it

would not have been irrational to conclude

that the exempted attorneys, "as a general

matter," are less likely than other attor-

neys to represent clients on a full-time

basis, thus making it less vital, for con-

-ll-

sumer protection purposes, that such attor-

neys engage in continuing education. (Id.,

p. 28, italics in original.) Second, it

would not have been irrational to conclude

that the exempted attorneys, by reason of

their particular professional roles and ex-

perience, "as a general matter," would not

need continuing education courses in order

to be familiar with recent legal develop-

ments or to remain competent attorneys.

(Id., pp. 28-29.)

The Court’s majority concluded that on

such "proper understanding and application

of the ‘rational relationship’ equal protec-

tion standard", the exemptions of law pro-

fessors, retired judges, and state officers

and elected officials were "not irrational

or arbitrary". (Id., pp. 38-39, fn. 14.)

While apparently agreeing with peti-

tioner’s contention that it had "plenary

authority" to review its own rule, the Cali-

fornia majority distinguished this Court’s

heightened scrutiny of a court rule in Fra-

zier v. Heebe (1987) 482 U.S. 641, as hav-

ing been pursuant to the Court’s supervisory

authority, and concluded that because it had

adopted the exemptions "at issue" in defer-

ence to the Legislature’s "policy judgments"

of section 6070, it was "clearly appropriate"

to apply the rational relationship standard

here. (Id., pp. 23-26, fn. 9.)

The two dissenting Justices analyzed

the majority’s position, and, in substance,

concluded its assumptions had no foundation

in fact or experience and were therefore

irrational. (Id., pp. 47-43, 61-65.)

b. That suspending petitioner for failure

to complete 12 hours of study within the

first 12 month period the MCLE program was

-12-

— <n eee

4 re)

in effect, while extending to other members

the right to complete 24 hours of study

within a 24 month period, and to yet other

members the right to complete the full 36

hours of mandatory study within the 36 month

period provided by the enabling statute and

rule of court, violated petitioner’s right

to the equal protection of the laws under

the 14th Amendment, and, because of his age,

was particularly damaging to him. (App. H,

Pp. 143-144; App. I, pp. 151-152; App. J,

Facts ##93-97, pp. 178-179; App. K, p. 192;

App. L, p. 194; App. O, p. 202.)

(1) The trial court’s disposition of the

name/compliance classification issue.

Without specifically referring to the

name/compliance classification issue, the

trial court found that there was no evi-

dence that petitioner had been denied equal

protection. (App. D, p. 126.)

(2) The Court of Appeal’s disposition of

the name/compliance classification issue.

The Court of Appeal, without discussion,

rejected petitioner’s contentions based upon

the name/compliance period classifications.

(App. B, pp. 112-113, fn. 27.)

(3) The California Supreme Court’s disposi-

tion of the name/compliance classification

issue.

The Supreme Court referred to the lower

court’s disposition of the initial compli-

ance period discrimination issue but, stat-

ing that it saw "no reason to disturb" the

Court of Appeal’s conclusion, did not dis-

cuss the issue further. (App. A, pp. 16-17,

fn. 6.)

-13-

2. Petitioner contended that the suspension

of his right to practice his profession for

failing to comply with the State Bar’s MCLE

program, and without first affording him the

right to a hearing, violated the Due Process

Clause of the 14th Amendment in the follow-

ing particulars:

a. That his suspension from practice by

the State Bar without affording him the

opportunity of a hearing, violated proce-

dural due process. (App. H, pp. 143-144;

App. I, p. 151; App. J, Facts ##12-17, pp.

156-157; App. K, p. 192; App. L, p. 194;

App. M, p. 195; App. O, p. 202-203.)

(1) The trial court’s disposition of the

procedural due process issue.

Without distinguishing petitioner’s

procedural and substantive due process

Claims, the trial court found that there

was no evidence that petitioner had been

denied due process of law. (App. D, p.

126.)

(2) The Court of Appeal’s disposition of

the procedural due process issue.

The Court of Appeal ruled that, in view

of its determination that the exemptions of

judges, state officials, and law school pro-

fessors violated petitioner’s right to the

equal protection, his due process challenge

was moot. (App. B, p. 113, fn. 27.)

(3) The California Supreme Court’s disposi-

tion of the procedural due process issue.

The California Supreme Court, recogniz-

ing that the Court of Appeal had "declined

to address [petitioner’s] substantive or due

process challenges", concluded that the trial

-14-

court had "properly rejected them" because

they “clearly lack merit." (App. A., 5.17,

fn. 6.) Then, citing citing this Court’s

opinion in Codd v. Velger (1977) 429 U.S.

624, 627-628) and the Arizona Supreme Court’s

opinion in Matter of Smith (1997) 189 Ariz.

144, 939 P.2d. 422, 424, the court held that

petitioner was not entitled to a due process

hearing because he had not claimed that he

had complied with MCLE’s rules and thus there

"were no factual questions to be resolved by

a hearing." (App. A, p. 18, fn. 6.)

b. That the State Bar’s summary suspension

of petitioner’s right to practice law for

for such a trivial reason as failure to con-

plete 12 hours of study within a 12 month

period was excessive punishment intended to

terrorize petitioner and other members into

compliance and a violation of substantive

due process. (App. H, p. 147; App. I, p. 151;

App. J, Fact #122, p. 184; App. L, p. 194;

App. N, p. 196; App. O, p. 198, 201, 203.)

(1) The trial court’s disposition of the

substantive due process issues.

Without distinguishing petitioner’s

procedural and substantive due process

contentions and supporting evidence, the

trial court simply found that there was

no evidence that petitioner had been denied

due process of law. (App. D, p. 126.)

(2) The Court of Appeal’s disposition of

the substantive due process issues.

Without distinguishing petitioner’s pro-

cedural and substantive due process claims,

the Court of Appeal ruled that, in view of

its determination that petitioner’s equal

protection right had been violated, his due

process challenge was moot. (App. B, p.

-15-

113, fn. 27.)

(3) The California Supreme Court’s dispo-

sition of the substantive due process issues.

The California Supreme Court held that

appellant’s substantive due process claim

“clearly lack{ed] merit, supporting its con-

Clusion by quoting the 10th Circuit’s state-

ment in Verner v,. State of Colorado (1983)

716 F.2d 1352, 1353, that a "state can re-

quire an attorney to take reasonable steps

to maintain a suitable level of competency

o « 0 o" Cham. Be: De 22, the. Se)

3. Petitioner contended that his right to

practice law was a vested fundamental right

which enhanced the protections due him under

the Equal Protection, Due Process, and Pri-

vileges and Immunities Clauses of the 14th

Amendment. (App. I, pp. 151-152; App. K, p.

192; App. L, pp. 193-194; App. M, p. 195;

App. O, p. 201-202; App. P, p. 204.)

a. The trial court’s disposition of the fun-

damental right issue.

The trial court made no reference to

petitioner’s claim that his right to practice

law was a vested fundamental right.

b. The Court of Appeal’s disposition of the

fundamental right issue.

The Court of Appeal rejected petiti-

oner’s contention that his right to prac-

tice law was a fundamental right, as held

by this Court in Supreme Court of New Hamp-

shire v. Piper (1985) 470 U.S. 274, 284-288,

on the ground that Piper was decided under

the Privileges and Immunities Clause. (App.

B, 77.) However, the Court of Appeal found

that Piper supported of its disposition of

-16-

the equal protection issue on the ground

that the reasons claimed for the discrimni-

nations were not of sufficient “subpstanti-

ality." (Id., p. 85.)

b. The California Supreme Court’s disposi-

tion of the fundamental right issue.

The California Supreme Court, without

referring to petitioner’s citation of Piper,

rejected his argument that the practice of

law was one of the historical "common occu-

pations" which, once established, is consti-

tutionally protected as a "fundamental"

right. The court opined that this principle

was inapplicable to the equal protection

question because the "line of cases" upon

which petitioner relied arose under the due

process Clause. (App. A, pp. 19-21.) Al-

though the court did not consider this prin-

ciple in rejecting petitioner’s due process

Claims, it did find Piper relevant to the

point that court rules may be reviewed for

constitutionally impermissible classifica-

tions. (Id., p. 24, fn. 9.)

4. In his first brief to the California

Supreme Court, petitioner, citing Alexan-_

der v. United States (1993) 509 U.S. 544,

558-559, contended that the sanction of

suspension from practice violated the 8th

Amendment’s proscription of excessive fines

and punishments. (App. O, p. 203.)

The California Supreme Court did not

respond to or acknowledge the existence of

the excessive sanction issue.

5. In her dissenting opinion, Justice Brown

raised the issue that the MCLE program’s ex-

emptions violated the privileges and immuni-

ties clause of the California constitution.

In his petition for rehearing, petitioner ad-

-17-

vised the court of this Court’s decision in

Saenz v. Roe, 119 S.Ct. 1519, 1525-1526 (1999)

vitalizing the concept of a national citizen-

ship endowed with a body of fundamental rights

common to all citizens of the several states.

By denying rehearing, again by a major-

ity of 4 to 2 (App. C, p. 122), the Califor-

nia Supreme Court tacitly rejected this view.

REASONS FOR GRANTING THE WRIT

This petition involves the limits of a

state’s power to compel its citizens, who

are competently pursuing their lawful occu-

pations, to participate in "educational"

programs, the contents of which are deter-

mined by the state and only marginally, if

at all, relate to maintaining professional

competency, by summary suspension of their

licenses to practice.

As stated by the California Supreme

Court, continuing education programs for

lawyers have been established in some 40

states of the Union. (App. A, pp. 2-3, fn.

1.) What the California court omitted to

note is that none of the programs of the

other states have been on such an elaborate

scale or so blatantly violative of the guar-

antees of the Bill of Rights and 14th Amend-

ment of the federal Constitution as the Cali-

fornia program. (See N.Y. State Bar Assn.,

Comparison of the Features of Mandatory

Continuing Legal Education Rules in Effect

as of July 1998 (1998).)

Continuing education (CE) programs also

are mandated for some 28 of the 38 different

businesses and professions regulated by Cali-

fornia’s Department of Consumer Affairs,

ranging from accountants and accupuncturists

to pharmacists and physicians to social wor-

-18-

kers and veterinarians. (See Bus. & Prof.

Code, secs. 101, 166.) The number of occupa-

tions coming under the Department’s control

and the number of continuing education pro-

grams grow annually. We presume that all

states have similar regulatory agencies, but

are not aware of their CE programs, if any.

The regulation of occupational activity

under the banner of consumer protection must

be seen as the most massive exertion of gov-

ernmental power over the lives of individual

citizens since the institution of compulsory

military service. And given the authority

of the California Supreme Court as the high-

est court of the nation’s largest and most

complex state, the impact of its opinion on

the attitudes of the myriad bureaucracies

of it and the other states is incalculable.

This Court should not dignify this opinion,

and its manifestly diminished regard for the

most basic of individual liberty interests

guaranteed by the federal Constitution by

a "certiorari denied" note.

It was not and is not petitioner’s in-

tent to question the desirability or need

for state regulatory control of the many

occupations which impact a state’s citizens

as consumers--which can mean virtually all

areas of human endeavor. However, it was

and is petitioner’s intent to help assure

that the rights of the individual receive

a fair measure of the protection afforded

by the Constitution from the massive intru-

sive powers of government.

To this end, petitioner submits that

this case is unique, not only because of

the degree to which the California State

Bar, the California Supreme Court, and the

California Legislature have done violence

to the 14th Amendment, but also because it

-19=-

affords the Court opportunity to consider

the Privileges and Immunities, Equal Pro-

tection, Due Process, and Excessive Fines

and Punishments Clauses as a seamless bar-

rier between the massive powers of govern-

ment and the individual’s right to pursue

an established occupation.

1. The California Court’s Decision Conflicts

With Decisions of This Court That the Right

to Engage in the Common Occupations of Life,

Including the Practice of Law, is a Fundamen-

tal Right Protected by the Privileges and Inm-

munities, Equal Protection, and Due Process

Clauses of the 14th Amendment.

Although the California Supreme Court

as recently its 1998 opinion in Hughes v._

Board of Architectural Examiners (1998)_17

Cal.4th 763, 788-790, had recognized that

under both federal and California law "[ijJt

is axiomatic that the right of an individual

to engage in any of the common occupations

of life is among the several fundamental

rights protected by the due process and equal

protection clauses of the Fourteenth Amend-

ment. (See Schware v. Board of Bar Examiners

(1957) 353 U.S. 232, 238-239, Meyer v. Neb-

raska (1923) 262 U. S. 390, 399, Sail’er Inn,

Inc. v. Kirby (1971) 5 Cal.3d 1, 17, Bixby

v. Pierno (1971) 4 Cal.3d 130, 145, fn. 12.)",

but refused to accept that petitioner’s right

to practice law was entitled to such protec-

tions.

Thus, in rejecting petitioner’s claim

that such status called for heightened scru-

tiny of the equal protection issues, the

court, erroneously, distinguished petitioner’s

"line of cases" as arising under the due pro-

cess Clause (App. A, pp. 19-20), but then ig-

nored those cases when it came to briefly con-

sider, and reject, petitioner’s due process

-20-

aati

Claims. (Id., pp. 17-18, fn. 6.)

In fact, the authorities petitioner

cited to establish that the right to pursue

a lawful occupation, once the individual

had been licensed to do so, was a fundamental

right, also arose under the Privileges and

Immunities Clause (Supreme Court Court of —

New Hampshire v. Piper (1984) 470 U.S. 274;

The Slaughter-House Cases

(1872) 16 Wall.

36), and the Equal Protection Clause. (Nord-

linger _v. Hahn (1992) 505 U.S. 1;_Plyler v._

Doe (1981) (1981) 457 U.S. 202; Eisenstadt

v. Baird (1971) 405 U.S. 438; Yick Wo v.

Hopkins (1885) 118 U.S. 356.)

As this Court has made abundantly clear

in Saenz v. Roe (1999) 119 S.Ct. 1519, a

right is fundamental because of its nature

and historical antecedents as well as its

importance to the individual and the nation,

and, as such, is a right of national citizen-

ship.

Furthermore, it would not appear reason-

able that rights held to be fundamental under

the Privileges and Immunities and Due Process

Clauses should, some how or other, become less

fundamental when considered under the Equal

Protection Clause, or that a right possessed

by the citizens of all the states may be tram-

meled by a state because the disaffected indi-

vidual is a citizen of that state.

The California court’s refusal to squ-

arely face petitioner’s "fundamental right"

position was a particularly pointed rejec-

tion of the opinions of this Court inasmuch

as the very case the California court placed

such emphasis upon to support its strained

"rational basis" analysis, FCC v. Beach Com-

munications, Inc. (1993) 508 U.S. 307, 313

-~-indeed in the very passage quoted by the

-21=

court--expressly recognized that where "a

statutory classification . . . infringes fun-

damental constitutional rights," the highly

deferential method of review is not applied.

(See App. A, pp. 24-28.)

The rule, as stated by the Court in Ply-

ler v. Doe (1982) 457 U.S. 202, 216-217, and

from which it has never retreated (see Cent-

ral State Univ. v. American Ass’n of Univer-

sity Professors (1999) 119 S.Ct. 1162, 1163),

is: "Classifications which ‘impinge upon the

exercise of a ‘fundamental right’" are "pre-

sumptively invidious". Where classifications

affect the exercise of a fundamental right,

the State must "demonstrate that its classi-

fication has been precisely tailored to serve

a compelling governmental interest."

Petitioner prays the Court to grant

certiorari that this salutary principle

may be reaffirmed.

2. The Decisions of Federal Courts of

Appeal That the Right to Engage in the

Common Occupations of Life, Including the

Practice of Law, is a Fundamental Right

Protected by the 14th Amendment, Are in

Conflict.

A panel of the Ninth Circuit, in Lebbos

v. Judges of Super. Ct., Santa Clara County

(9th Cir. 1989) 883 F.2d 810, 818, held that

held that the right of a licensed attorney

to practice her profession is a "liberty or

property interest in pursuing ‘the common

occupations or professions of life’" which

are protected under substantive due process.

Another panel of the Ninth Circuit, in

Lupert v. California State Bar (9th Cir.

1985) 761 F.2d 1325, 1327-1328 & fn. 2, a

pre-licensing case, which the Court of Appeal

-22-

found decisive (App. B, p. 77), held that

the right to practice law was not a fun-

damental right. The California Supreme

Court ostensibly avoided the conflict by

omitting to refer to either 9th Circuit

case, and "explained" the "fallacy" in

petitioner’s reasoning by referring to

its own prior opinion in a pre-admission

case mirroring Lupert. (App. A, pp. 21-22.)

3. The California Court’s "Rational Basis"

Test Takes This Court’s Statements in FCC v.

Beach Communications to Unreasonable Extreme.

In order to sustain its own rule, the

California Supreme Court not only had to

ignore the many cases ruling that statutes

infringing fundamental rights are subject to

heightened scrutiny, it also had to extend

the range of "rational basis" analysis be-

yond the limits of reality.

In substance the California court held

that where the Legislative history of a stat-

ute requesting--not mandating--that the court

adopt a rule providing for certain exemptions,

and the court has adopted such a rule, adding

its own exemptions, and the reasons for the

exemptions requested by the legislature are

known to the court, and its own reasons for

adopting the rule and its exemptions are known

to the court--as indeed they must have been--

but are not disclosed, extreme deference must

be extended to a presumed wisdom of the Legis-

lature to the point that the reviewing court

must ignore the known facts and must attri-

bute entirely fictitious purposes to the Leg-

islature to justify the facial discriminations

of its own rule against equal protection chal-

lenge.

The court’s theory was that although it

had plenary authority to adopt the rule, or

to modify or repeal it, it was obliged, for

-23-

the purposes of constitutional review, to

defer to presumed wisdom of the Legislature.

(App. A, pp. 23-26.) Indeed, the court ex-

pressly said that in adopting the exemptions,

it had deferred to the Legislature’s policy

judgments, i.e., it granted the exemptions

only because the Legislature had wanted then.

(App. A, fn. 9, p. 27.) Which was not entir-

ely correct as the court, on its own initia-

tive, had exempted employees of the federal

government even though the Legislature had

not. (App. A, pp. 5-7.)

Thus, although it was historically clear

--and was so known to the courts, the prin-

Cipals, and amicii--that the State Bar had

initially asked the Legislature to adopt an

MCLE rule which applied to all members of the

State Bar without exception, upon encounter-

ing opposition from some legislators who did

not want to be burdened personally, and a

powerful Senator who demanded exemptions for

state employees, the State Bar agreed to ac-

cept a rule providing for exemptions, and the

floodgates opened.

The California Supreme Court majority

found rationality in the three classes of

exemptions it chose to consider--law pro-

fessors, retired judges, and State officers

and elected officials--by indulging in two

suppositions: (1) that "it would not have

been irrational to conclude" that the exemp-

ted lawyers were less likely to represent

clients on a full-time basis, and, therefore,

there was less need to protect their clients

by requiring them to be current in the law;

and (2) that "it would not be irrational to

conclude" that the exempted lawyers, because

of their experience, were less likely to

need continuing education. (App. A, 28-29.)

Not that such suppositions were true,

-24-

not that they had had some basis in fact or

reality, not that they were reasonable, not

that the court had found it rational, only

only that "it would not be irrational" to

so conclude.

What then are lower courts to take to

be the meaning of "any reasonably conceiv-

able state of facts that could provide a

rational basis for the Classification"? (FCC

(1993) 508 U.S.

307, 313, emphasis added.) Are there such

categories as “unreasonably conceivable"

facts and "irrational bases" for discrimi-

natory classifications? And does not the

relevance of "plausible reasons" (ibid. )

necessarily imply the relevance of "jmplaus-

ible reasons", and "rational speculation"

imply the existence of "jrrational specu-

lation"? (Id., p. 314.) If the answers to

these questions are in the affirmative, as

seemingly they must be, then court’s must have

some discretion to so conclude. The import-

ant question, however, is by what objective

criteria to the courts conclude one way or

the other?

It is one thing to defer to a presumed

legislative wisdom where the record, in a

complex regulatory scheme containing discrim-

inatory elements, is devoid of any legisla-

tively declared basis for the discrimination,

as apparently was the situation in Beach.

But where the record shows, as here, that the

legislature decided to discriminate on the

basis of the naked demands of powerful groups,

including its own members, that they be exemp-

ted from the burdens of the legislation, it

is quite another matter for a reviewing court

to close its eyes to reality.

What if the California Legislature had

expressly declared, "We find that these law-

-25-

yers, because of their eminence, status, and

political influence, are exempt." Should

the Court countenance such a naked claim of

privilege on the authority of Beach and the

suppositions of the California Supreme Court?

We submit not, for, as this Court stated

in Plyler v. Doe (1982) 457 U.S. 202, fn. 34,

p. 217: "Legislation imposing special disabi-

lities upon groups disfavored by virtue of

circumstances beyond their control suggests

the kind of ‘class or caste’ system that the

Fourteenth Amendment was designed to abolish."

Petitioner submits that the California

court has taken the "rational basis" test

to the point where the key words used in Beach

should be closely examined for meaning and

consistency. Thus, the plain meaning of "ra-

tional" is "having reason or understanding".

"Reasonable" means "not extreme or excessive",

"possessing sound judgment". "Plausible"

means "superficially fair, reasonable", "sup-

erficially persuasive", “superficially worthy

of belief". "Speculation" means "to meditate

on or ponder a subject", "to review something

idly or casually and often inconclusively".

Petitioner submits that the courts should

resort to such amorphous standards of review

only in those cases where the record is silent

as to the bases for the legislative classifi-

cations, and the classifications are not faci-

ally or, as stated by the Court in Beach, invi-

diously discriminatory. (Id., p. 316.)

In Beach (ibid.) the Court quoted William-

(1955) 348

U.S. 483, 489: "The prohibition of the Equal

Protection Clause goes no further than the

invidious discrimination." But the record

is clear in this case that the discrimina-

tions which petitioner established, i.e., (a)

=-26-

the exemptions of certain classes of attor-

neys, and (b) the name/compliance period dis-

criminations, were patently invidious. “In-

vidious" means "tending to cause discontent,

animosity, or envy", or "injurious".

The exemptions of favored lawyers cer-

tainly caused discontent by proclaiming that

non-exempt attorneys were less competent

and ethical than their favored peers, and

burdening them by requiring them to expend

invaluable time and not inconsiderable sums

of money attending Bar approved seminars.

The name/compliance period discriminations

arbitrarily deprived petitioner and other

members similarly disaffected of one and two

years less time within which to meet their

educational obligations and remain in prac-

tice.

The California court’s reasoning is

all the less satisfactory because it used

its powers as the highest constitutional

authority of the state to support a scheme

whereby the agency over which it has exclu-

sive control proposed a bill to the Legis-

lature, the Legislature expressly deferred

to the authority of the Court, the Court

then promulgated a patently unconstitutional

rule, and now insulates its own rule from

its own independent judicial scrutiny on

the claim that it must defer to the Legis-

lature and invents entirely fictitious rea-

sons why the Legislature’s recommendations

must be given extreme deference!

On such a record, petitioner submits

that the California court’s amorphous sup-

positions are grossly in excess of Beach’s

authority.

4. The California Court’s Decision Conflicts

With Decisions of This Court That the Right

=-27=

to Pursue a Lawful Occupation, Once Granted

by the State, May Not Be Suspended Without

a Prior Hearing.

The California court cited this Court’s

per curiam opinion in_Codd v. Velger (1977)

429 U.S. 624, 627-628, to justify its con-

clusion that petitioner was not entitled to

to a due process hearing because he had not

Claimed that he had complied with MCLE’s

rules and thus, so the Court gratuitously

concluded, there "were no factual questions

to be resolved by a hearing." (App. A, p.

iS, 18, fin. 6.)

Justice Brennan, not foreseeing the use

the California Supreme Court would put to

Codd _v. Velger, opined in dissenting that

the Court’s ruling "is likely to be of little

practical importance." (Id., p. 629.)

Codd _v. Velger rested on the assumption

that there were no issues to be resolved

other than the issue of the falsity of the

the stigmatizing material in his former en-

ployer’s files, and since Velger had not

Claimed that the stigmatizing materials were

false, there was no need :for a hearing.

That Velger does not stand for the use

put to it by the California court, is obvi-

ous from the Court’s discussion in Board

of Regents v. Roth (1972) 408 U.S. 564, 569-

572, the authority for the Velger hearing.

In Coe v. Armour Fertilizer Works (1914)

237 U.S. 413, 424, the Court stated: "To one

who protests against the taking of his pro-

perty without due process of law, it is no

answer to say that in his particular case due

process of law would have led to the same re-

sult because he had no adequate defense upon

the merits."

-28-

As is obvious from the opinions of the

two court’s below (Apps. A, B), petitioner

had a multitude of factual and legal issues,

in addition to the constitutional issues, to

present which might appropriately have been

resolved to a large degree by a pre-suspen-

sion hearing, not the least of which was

the propriety of the Bar’s suspension and

notification procedures, which were not sup-

ported by any prior rule and could readily

have been resolved at the Board of Governor’s

level. (App. J, Fact #27, p. 160.)

In any case, petitioner clearly had a

constitutionally protected right to his lic-

ense to practice his profession and to have

a pre-suspension hearing for the purpose of

of raising all legal and factual issues in

defense of that license. (Barnard v. Thors-

tenn (1989) 489 U.S. 546, 553; Spevack v.

Klein (1967) 385 U.S. 511, 516.)

The California Supreme Court’s applica-

tion of Codd v. Velger was inappropriate and

ought to be rejected by this Court.

5. The Sole Sanction of Suspension From

Practice Is Arbitrary and Disproportionate

to The Offense.

For a state to deprive one of life,

liberty or property for arbitrary or insub-

stantial reasons, is to deny one substantive

due process of law. (Planned Parenthood

Vv. Casey (1992) 505 U.S. 833, 846-851.)

Recent cases of this Court suggest that a

sanction which is grossly disproportional

to the offense may violate the 8th Amend-

ment’s proscription of excessive fines and

punishments, as well as the Due Process

Clause of the 14th Amendment. (Alexander

v. United States (1993) 509 U.S. 544, 558-

559; United States v. Bajakajian, 118 S.ct.

-29°-

iia

2028, 2036-2038 (1998); BMW of North America

v. Gore, 517 U.S. 559, 562, 575 (1996). See

Justice Breyer’s concern, with the concur-

rence of Justice O’Connor and Justice Souter,

for "arbitrary coercion." Jd, p. 587.)

Such peculiar provisions of this MCLE

program as providing that the sole sanction

for non-compliance is summary suspension

from practice, while affording Bar-approved

providers full due process hearings before

their licenses may be suspended, and the

broadcasting of notices of a member’s sus-

pension on the same form as notices of dis-

barments for ethical violations, smack of

"arbitrary coercion" and suggest that the

State Bar was far more interested in assert-

ing control over its members and coercing

them into compliance than it was in continu-

ing education or upholding the Constitution.

CONCLUSION

In his concurring opinion in_Schware v._

Board of Bar Governors, supra, 353 U.S. 247,

Justice Frankfurter noted: "[A]ll the inter-

ests of man that are comprised under the con-

stitutional guarantees given to ‘life, liberty

and property’ are.in the professional keeping

of lawyers." How disheartening it is to see

the corrosive effect of power and the impera-

tives of its retention by those who control

the largest single association of lawyers

in the nation!

Respectfully su Be °

_—

Lew Warden, Petitioner.

-30-

uh TERNAL RRS taht enna

meee Recension eeu

CERTIFICATE OF SERVICE

This is to certify that on January

14, 2000, as provided by Rule 29, par. 3,

I deposited three (3) copies of the

PETITION FOR CERTIORARI

and APPENDICES

herein on counsel for respondents STATE

BAR OF CALIFORNIA, LORNA MAYNARD, and

CAROLE ROSSI, with the United States Post

office, San Diego, California, postage

fully prepaid, ina sealed wrapper,

addressed as follows:

Marie M. Moffat

Lawrence C. Yee

Colin P. Wong

office of General Counsel

The State Bar of California

180 Howard Street

San Francisco, CA 94105-1639

Tel: (415) 538-2270

Fax: (415) 538-2321

I declare under penalty of perjury

that the foregoing is true and correct.

Executed on Jan y 4, 2000, at San

Diego, California.

————_

~ Dew’ Warden

9121 E. Tanque Verde

#105-146

Tucson, Arizona 85749