Opposition Brief — Warden v. California State Bar

No. 99-1194

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1999

LEW WARDEN,

Petitioner,

V.

THE STATE BAR OF CALIFORNIA, et al,

Respondent.

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES SUPREME

COURT

Marie M. Moffat, S.B. #62167 Mark L. Tuft, S.B. #43146

Lawrence C. Yee, S.B. #84208 Cooper, White & Cooper

Colin P. Wong, S.B. #130033* 201 California Street, 17" Floor

Office of General Counsel San Francisco, CA 94111

State Bar of California (415) 433-1900

180 Howard Street

San Francisco, CA 94105 James M. Wagstaffe, S.B. #95535

(415) 538-2200 Kerr & Wagstaffe

100 Spear Street, 18" Floor

San Francisco, CA 94105

(415) 371-8500

*Counsel of Record

Attorneys for Respondents

——

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TABLE OF CONTENT

A. There Is No Genuine Dispute Or Conflict

That the Traditional "Rational

Relationship" Standard Governs

Petitioner's Equal Protection Clause

Challenge To California's MCLE

ES a ae oe ale kt ewes 14

B. The California Supreme Court’s

Application Of The Equal Protection

Standard In Determining The Validity Of

California's MCLE Program Is

Consistent With Well Established

Holdings Of This Court And Presents No

Conflict Of Decisions And No Important

ROG INO og kc ee ce mec eceee 17

C. The California Supreme Court Was

Correct in Concluding That Petitioner’s

Substantive And Procedural Due Process

Re IEE ces oe eck das ences 24

CUMS Seca eh esac Shad Oa eo 28

TABLE OF AUTHORITIES

Pages

Cases

Bib'le v. Committee of Bar Examiners,

yo te ee Ry per Te a a tT 15

Browning-Ferris Indus. of Vermont v.

Kelco Disposal, Inc., 109 S.Ct. 2909 (1989) ...... 10

City of New Orleans v. Dukes, 427 U.S. 297 (1976) ... 20-21

Codd v. Velger 429 U.S. 624; 97 S.Ct. 882;

PR Sk cs) eee ey ee tee eer es 25

Conn v. Gabbert 119 S.Ct 1292;

526 U.S. 286; 143 L.Ed.2d 399 (1999) .......... 27

Dandridge v. Williams, 397 U.S. 471 (1970)............ 23

Edelstein v. Wilentz, 812 F.2d 128 (3 Cir. 1987) ........ 16

FCC v. Beach Communications, Inc.,

505 OE. Sar eee 5 eee 18,20,23

Gupo Mexicano de Desarrollo S.A. v. Alliance Bond

Fund, Inc., 119 S.Ct. 1961 (1999) .............. 10

Hernandez v. Dept. of Motor Vehicles,

SO Ce Pee he Sc eee ee 15

Hughes v. Board of Architectural Examiners,

7 Co Fae Ge io a os Ra ess 15

TABLE OF AUTHORITIES (Cont’d)

Pages

nt’

Lupert v. California State Bar,

FOr P26 1925 19" Cr. 1985) ......2....... 16,19

McDonald v. Board of Election Commissioners,

re OO 22

Railway Express Agency v. New York,

336 U.S. 106, 69 S.Ct. 463 (1949) .......... 21,22

Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1519 are 16

Semler v. Dental Examiners, 294 U.S. 608 (1935) ........ 15

Supreme Court of New Hampshire v. Piper,

oe ek. a 15,16,18

Texaco, Inc. v. Short, 454 U.S. 516,

70 L.Ed.2d 738, 102 S. Ct. 781 (1982) .......... 25

United States Railroad Retirement Board v. Fritz,

NN ee ec wee ws 18

Vance v. Bradley, 440 U.S. 93 (1979) ........... 18,20,23

Verner v. State of Colorado, 533 F.Supp. 1109

(D. Colo. 1982) affd, 716 F.2d 1352

og et ae 16,19,27

Wachs v. Curry, 13 Cal.App.4th 616 (1993) ............ 15

TABLE OF A RITIE

Cases (Contd’)

Warden v. State Bar, 21 Cal.4th 628; 982 P.2d 154;

88 Cal. Rptr.2d 283 (1999) .........

Williamson v. Lee Optical Co., 348 U.S. 483 (1995) ...

Constitutions

California Constitution

Article III, Section3.5 ............

Rules

California Rules of Court

Re geste Cee

Minimum Continuing Legal Education

Rules and Regulations

AE oe oi clateeret ences

Statutes

Business and Professions Code

I ea tee

a

iV

15,20

Respondents the State Bar of California, Lorna Maynard

and Carole Rossi respectfully request that this Court deny the

petition for writ of certiorari, seeking review of the Supreme

Court of the State of California’s opinion in this case. That

opinion is reported at Warden v. State Bar, 21 Cal.4th 628; 982

P.2d 154; 88 Cal.Rptr.2d 283 (1999).

I. INTRODUCTION

California has joined 39 other states in adopting a

mandatory continuing legal education ("MCLE") program as a

consumer protection measure requiring lawyers in active

practice to maintain certain minimum levels of continuing

education. Petitioner Lew Warden seeks to invalidate

California's entire MCLE program based on various

constitutional challenges--principally that the narrow

exemptions, which are applicable to only a fraction of the

123,000 practicing attorneys in California, violate the Equal

Protection Clause of the Fourteenth Amendment of the

Constitution. Petitioner also claims, without benefit of

i 1

authority, that the right to practice law, once granted by a state,

is a fundamental right protected by the Privileges and

Immunities Clause, the Equal Protection Clause and the Due

Process Clause, that the nondiscretionary act by the California

State Bar of placing petitioner on inactive status until petitioner

complied with the MCLE program requirements violates the

Due Process Clause and that placing petitioner on inactive

status for failure to obtain 12 hours of educational credits in a

12-month period violates the Equal Protection Clause, the Due

Process Clause of the Fourteenth Amendment and the

Excessive Fines and Cruel and Unusual Punishment Clauses of

the Eighth Amendment.

As demonstrated below, the applicable equal protection

standard in reviewing classifications that are challenged in this

context is the "rational relationship" standard not the "strict

scrutiny" standard advanced by petitioner. The "rational

relationship" standard was properly applied by the California

Supreme Court in petitioner's case -- consistent with the

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governing decisions of both this Court and California. The

California Court's decision does not conflict with the decisions

of this Court either on the proper standard to be applied or the

application of that standard in this case. In light of the

California Supreme Court's proper determination of the issues

in petitioner's case, there is no basis for granting petitioner's

Wnit of Certiorari.

I. STATEMENT OF THE CASE

The California legislature enacted Business &

Professions Code Section 6070 in 1989 which required the

California State Bar ("State Bar") to request the California

Supreme Court to adopt a rule of court authorizing the State

Bar to establish and administer an MCLE program. The statute

directed the State Bar to include certain details in its request for

the rule, including a provision that a member of the State Bar

who failed to satisfy the MCLE requirements would be placed

On inactive status and thus be unable to practice law in

California until the requirements were met. The legislature

3

provided in section 6070(c)' that retired judges, officers and

elected officials of the State of California, full-time professors at

law schools accredited by the State Bar of California, The

American Bar Association, or both, and full-time employees of

the State of California, acting within the scope of their

employment, shall be exempt from the requirements of the

statute. (Pet’s. App. G, pp. 134-135.)

Pursuant to the legislation, and after two public

hearings, the State Bar filed with the California Supreme Court

a request for a new rule of court authorizing the State Bar to

establish a mandatory continuing education program. On

December 6, 1990, the California Supreme Court amended its

rules to add Rule 958 establishing the MCLE program. Rule

958 required the State Bar to administer an MCLE program

ensuring that each member, not exempt, complete 36 hours of

legal study within a 36-month period designated by the State

‘Unless otherwise indicated, all statutory references are to

the California Business & Professions Code.

4

Le, Pn A OE RD SAS

Bar. In addition to adopting the exemptions in Section 6070(c),

the California Supreme Court added an exemption for full-time

federal employees acting within the scope of their employment.

(Pet’s. App. G, p. 135.)

Following adoption of Rule 958, the State Bar adopted

a set of rules and regulations governing the operation of the

MCLE program. The regulations included the five exempted

categories pursuant to Section 6070 and Rule 958 and included

an additional provision— entitled "Good Cause Exemption From

or Modification of Requirement"— that authorizes any member

of the State Bar to "submit an application setting forth good

cause for an exemption from compliance with or modification

of any of the [MCLE] requirements, including an extension of

time for compliance, in accordance with a procedure to be

established by the Committee on Minimum Legal Education.

(Pet’s. App. G, pp. 135-136.)

*Following the State Bar's adoption of the MCLE rules and

(continued...)

California's MCLE program applies generally to all

active members of the State Bar. The State Bar's official

records” show that of the total number of exemptions granted to

active members in the period 1994-1996 (based on the sum of

year-end figures), only 144 (.14%) members were exempted as

retired judges, 48 (.05%) as elected officers of the State, and

376 (.4%) as professors of accredited law schools. (Resp’s.

App. 4, pp. 86-89) ‘

Petitioner was an active member of the California State

Bar in 1993 and vowed never to take any MCLE courses.

2(...continued)

regulations, the California State Bar Committee on Minimum

Continuing Legal Education adopted a set of guidelines for its

advisory interpretations of the MCLE rules and regulations.

‘Pursuant to California Rules of Court, Rule 950.5, the State

Bar maintains the official membership Roll of Attorneys for the

California Supreme Court.

“The largest number of exemptions were for those in the

categories of federal or state employees—2,477 (2.3%) and

1,611 (1.5%) respectively-two categories that have not been

seriously challenged.

(Resp’s. App. 4, p. 83.) Under the MCLE statute and rules,

petitioner was obligated to complete 12 hours of credit between

February 1992 and January 31, 1993 which petitioner

acknowledged he did not do. Nor has petitioner applied for a

"Good Cause Exemption" or a modification of any of the

requirements imposed by the MCLE rules and regulations. On

April 23, 1993, the State Bar sent petitioner a "Non-

Compliance Notice," pursuant to its regulations, advising

petitioner of what he was required to do to comply with the

MCLE requirements and informing him that he had 60 days

from the date of notification to comply with the required

number of educational hours (12) or he would be enrolled as an

inactive member of the California State Bar effective July 19,

1993. (Resp’s. App. 3, p. 75.)* On July 9, 1993, petitioner

“It is within petitioner's unilateral power to be reinstated

administratively to active practice simply by completing the

required hours of MCLE study, so certifying and paying

delinquent fees. (Pet’s. App. G.) A certain number of the

required educational hours can be attained by self-study

(continued...)

wrote to the MCLE Compliance Coordinator of the State Bar,

asserting that the MCLE program is unconstitutional and that

he could not be prohibited from practicing law for refusing to

comply with its requirements. On July 29, 1993 the State Bar

sent petitioner a final notice advising him that his name would

be submitted to the Board of Governors on July 17, 1993 with

recommendation that effective July 19, 1993 he be enrolled as

an inactive member of the Bar until he complied with the

MCLE requirements. (Resp’s. App. 3, pp. 78-79.) On July 30,

1993, the California State Bar sent petitioner a notice of

enrollment on administrative inactive status, informing him that

effective July 19, 1993 he was ineligible to practice law in

California until the State Bar received proof of his compliance

with the applicable MCLE requirements. On September 23,

1993, petitioner responded to the State Bar's July 30, 1993

notice expressing his profound disagreement with the MCLE

*(...continued)

courses. (Pet’s. App. G, p. 133.)

8

program and threatening to sue the State Bar and its employees

for damages if it did not "forthwith recall [its] suspension

order."

On October 7, 1993, petitioner filed with the State Bar a

"claim of damage," which after a review by the State Bar Board

of Governors, was denied. Petitioner then filed a lawsuit in

Alameda County Superior Court against the State Bar and

certain of its employees seeking compensatory and punitive

damages, declaratory relief, injunction, and mandate. (Pet’s.

App. H, p. 149.) In his complaint, petitioner claimed that the

MCLE program was unconstitutional in numerous respects,

asserting that the program denied him procedural and

substantive due process of law and equal protection of the law.

Among his other claims, petitioner alleged that the State Bar

violated his rights to procedural due process and caused him to

suffer damages even though he had received regular

correspondence prior to his required compliance. Petitioner

further alleged that Section 6070 and Rule 958 deprived him of

9

equal protection because of the program's allegedly

discriminatory classifications and that the exemptions subjected

him to differential treatment prohibited by the State and Federal

Constitutions. (Pet’s App. H.)*

The trial court granted summary adjudication in favor of

the State Bar on all issues submitted by the Bar, thus effectively

disposing of all aspects of petitioner's constitutional challenge.

Petitioner appealed to the California Court of Appeal. The

Court of Appeal focused almost entirely on petitioner's equal

protection claim, in particular the claim that the MCLE program

denied petitioner equal protection under the law because the

program unjustifiably exempted certain categories of attorneys

‘Petitioner did not raise at any time in the State court

proceedings his contention that his enrollment to inactive status

violated his rights under the 8" Amendment. Thus, it would be

proper for this Court to decline review of this issue. See Gupo

Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc, 119

S.Ct. 1961 (1999). In addition, there is no merit to petitioner’s

claim that his being placed on inactive status is violative of the

8" Amendment. Browning-Ferris Indus. of Vermont v. Kelco

Disposal, Inc., 109 S.Ct. 2909 (1989).

10

from the MCLE requirements that applied to petitioner and to

other non-exempt attorneys. The Court of Appeal rejected

petitioner's contention that his equal protection challenge should

be evaluated under the "strict scrutiny" test. However, the

Court of Appeal concluded under the "rational basis" standard

of review that, while full-time state and federal employees who

did not represent individual clients satisfied the rational

relationship test, the exemptions for retired judges, officers and

elected officials of the State of California and full-time

professors at accredited law schools did not. Two of the three

Court of Appeal justices concluded that the appropriate remedy

was to invalidate the MCLE program as a whole, leaving the

California legislature "to start anew and initiate comprehensive

legislative reform of MCLE, rather than to accept a judicial

reformation of Section 6070." The remaining justice, concluded

that there was no need to "throw [] the baby out with the

proverbial bath water” and suggested that the more appropriate

solution was to excise the exemptions, which the justice

1]

observed apparently applied to only a few hundred lawyers,

rather than to invalidate the MCLE program as a whole. (Pet’s

App. B, p. 114.)

Petitioner and the State Bar filed separate petitions for

review with the California Supreme Court. The California

Supreme Court accepted for review the State Bar's petition

which presented two principal issues: (1) whether the MCLE

program violated federal or state equal protection principles by

exempting certain categories of attorneys from the MCLE

requirements, and (2) if so, what the appropriate remedy should

be.

On August 26, 1999, the California Supreme Court

issued its decision reversing the Court of Appeal's decision and

concluded that the challenged exemptions were not

unconstitutional under a proper application of the "rational

relationship" standard. (Pet’s App. A.) The California

Supreme Court agreed with the Court of Appeal that the

applicable equal protection standard of review in this context is

12

the "rational relationship" rather than the "strict scrutiny"

standard but held that the Court of Appeal had erred in its

application of the "rational relationship" standard in conducting

its judicial review of the statute. The California Supreme Court

also concluded that petitioner's procedural due process

challenges lacked merit and that the trial court had properly

rejected those claims. (Pet’s App. A, p. 17, fn. 6), The

California Court found that petitioner had been provided with

ample notice of his noncompliance with the existing MCLE

requirements, and since petitioner did not claim that he had

complied with or was exempt from those requirements and

there were no other factual questions to be resolved by a

hearing, the State Bar's nondiscretionary administerial action of

placing petitioner on inactive status without a hearing did not,

under such circumstances, deny petitioner procedural due

process. On September 9, 1999, petitioner filed a petition for

rehearing which was denied by the California Supreme Court on

October 20, 1999. Petitioner filed the instant Petition for Writ

13

of Certiorari with this Court on January 18, 2000.

iil. ARGUMENT

A. There Is No Genuine Dispute or Conflict That the

Traditional "Rational Relationship" Standard

Governs Petitioner's Equal Protection Clause

Challenge to California's MCLE Program.

The California courts that have considered petitioner's

equal protection challenge to the MCLE program have agreed

that petitioner's claims must be evaluated under the traditional

“rational relationship” standard rather than the heightened

"strict scrutiny” standard applicable in cases involving "suspect

classifications” or "fundamental interests." There is no

authority that would support petitioner's principal argument that

the right to engage in the practice of law is a "fundamental"

right or liberty for equal protection purposes, and that statutes

or court rules that create classifications relating to the practice

of law are therefore subject to the heightened "strict scrutiny”

standard of judicial review. Governing decisions of this Court

have made it clear that the rational relationship standard applies

14

to classifications involving those persons who already have

obtained professional or occupational licenses, as well as to

those applying for such licenses. See, e.g., Williamson v. Lee

Optical Co., 348 U.S. 483, 488-489 (1995); Semler v. Dental

Examiners, 294 U.S. 608, 610-611 (1935). California case law

is consistent with these authorities. See, Bib‘le v. Committee of

Bar Examiners, 26 Cal.3d 548 (1980) (the conventional

"rational relationship” test applied in an equal protection

challenge to a State Bar rule that accorded differential treatment

to bar applicants on the basis of whether they attended

accredited or unaccredited law schools); Hernandez v. Dept. of

Motor Vehicles, 30 Cal.3d 70, 81 (1981); Hughes v. Board of

Architectural Examiners, 17 Cal.4th 763, 789 (1998); Wachs v.

Curry, 13 Cal. App.4th 616, 624 (1993).

Supreme Court of New Hampshire v. Piper, 470 U.S.

274 (1985), is not to the contrary. In Piper, this Court

invalidated a rule against practice by out-of-state attorneys

because it violated a fundamental right under the "Privileges and

15

Immunity Clause." Piper, supra, 470 U.S. at 284-88.

Petitioner's reliance on Saenz v, Roe, 526 U.S. 489, 119 S.Ct.

1519 (!999) is also misplaced. Saenz v. Roe, supra, as with

many of the cases cited by petitioner, did not involve equal

protection challenges but rather raised challenges under the

privileges and immunities clause and involved the constitutional

right to travel. The present petition raises no such issues as

they may relate to out-of-state attorneys.

Nor is there a conflict among the federal courts that the

highly deferential "rational relationship" test governs the equal

protection challenges raised by petitioner with respect to

California's MCLE program. See, Lupert v. California State

Bar, 761 F2d 1325, 1327 (9® Cir. 1985) (discrimination based

on whether law student attends accredited or unaccredited law

school does not infringe upon fundamental right), cert. denied,

474 U.S. 916 (1985); Edelstein v. Wilentz, 812 F.2d 128, 132

(3 Cir. 1987) (no fundamental right to practice law); Verner v.

State of Colorado, 533 F.Supp. 1109, 1118 (D. Colo. 1982)

16

affd, 716 F.2d 1352, 1353 (10 Cir. 1983) (applying the

rational relationship standard in determining validity of

exemption from state MCLE program).

Therefore, petitioner's attempt to avoid rational basis

analysis by arguing that the right to practice law is a

"fundamental" right giving rise to a strict scrutiny analysis for

purposes of equal protection is contrary to established law.

B. The California Supreme Court’s Application Of The

Equal Protection Standard In Determining The

Validity Of California's MCLE Program Is

Consistent With Well Established Holdings Of This

Court And Presents No Conflict Of Decisions And

No Important Undecided Question.

The California Supreme Court followed the governing

principles explained by this Court on more than one occasion

that "[i)n areas of social and economic policy, a statutory

classification that neither proceeds along suspect lines nor

infringes fundamental constitutional rights must be upheld

against equal protection challenge if there is any reasonably

conceivable state of facts that could provide a rational basis for

17

the classification. [Citations]" FCC v. Beach Communications,

Inc., 508 U.S. 307, 313 (1993). Petitioner argues without

authority that the proper focus should be on the supposed

"actual" basis for the MCLE statute and rules rather than on the

well-established "any conceivable basis" standard. However, as

this Court has explained "On rational basis review, legislative

choice is not subject to courtroom fact-finding and may be

based on rational speculation unsupported by evidence or

empirical data." FCC v. Beach Communications, Inc., supra,

508 U.S. at 515; Vance v. Bradley, 440 U.S. 93, 111 (1979).

Where there is any conceivable justifications for statutory line-

drawing, "it is, of course, constitutionally irrelevant whether the

reasoning in fact underlay the legislative decision." United

" States Railroad Retirement Board v, Fritz, 449 U.S. 166, 179 |

(1980).

As noted previously, Supreme Court of New Hampshire

v. Piper, supra, 470 U.S. 274, relied on most heavily by

petitioner, raised an attack on a fundamental constitutional right

18

relating to interstate travel and embodied an attack not under

equal protection but under the privileges and immunities clause.

The California Supreme Court correctly concluded that

California's MCLE program that generally requires attorneys

licensed by the state to complete a specified number of

continuing education courses did not violate the federal equal

protection clause by exempting retired judges, state officers,

and elected officials and full-time professors at accredited law

schools. There can be no legitimate dispute that California's

MCLE program serves a legitimate state purpose—protection of

the public by insuring that lawyers continue to be fit and

qualified to practice law. Lupert v. California State Bar, supra,

761 F.2d at 1327-38; Verner v. State of Colorado, supra, 533

F.Supp. at 1118. The MCLE requirements are intended to

focus in the first instance on those attorneys who are most likely

to engage in representing clients in private practice. The

categories of exemptions therefore have in common the fact

that as discreet groups the exempted attorneys are less likely to

19

engage in private practice or handle client funds than other

attorneys. The California legislature in attempting to improve

the overall competence of attorneys is not required to address

the entire problem at once, but is allowed to address the

problem one step at a time. Moreover, the legislature may

apply the requirement only to groups of lawyers it thought most

generally pertinent to its objective. Vance v. Bradley, supra,

440 U.S. at 109.

Petitioner argues that the limited exceptions to the

MCLE program renders the entire program "“underinclusive" in

violation of equal protection. However, mathematical nicety

with respect to regulatory line-drawing is not required under the

rational relationship standard. FCC v. Beach Communication,

Inc., supra, 508 U.S. at 315-16. Nor does the equal protection

Clause prohibit a state legislature from attacking a problem

piece meal, "addressing itself to the phase of the problem which

seems most acute to the legislative mind." Williamson v. Lee

Optical Co., supra, 348 U.S. at 489; City of New Orleans v.

20

Dukes, 427 U.S. 297 (1976) (imposing restrictions on opticians

but not optometrists or ophthalmologists); Railway Express

Agency v. New York, 336 U.S. 106, 69 S.Ct. 463 (1949)

(prohibiting advertising on all vehicles except vehicles Carrying

on business of owner).

Applying the rational relationship standard the Court

properly concluded that there are at least two conceivable

justifications that reasonably support the narrow exemptions to

MCLE. The Court found it logical and not irrational that law

professors, retired judges and legislators generally are jess likely

as a group to represent clients on a full or part-time basis—thus,

rendering MCLE of a less serious need than for all other

attorneys.’ The Court also found that it was reasonable and not

irrational to conclude that the exempted classes may be better

trained and experienced as a group and thus in less need of

’Although the California Supreme Court did not address the

extremely limited total number of exemptions claimed in each of

the categories, they are so di-minimus as to nullify petitioner's

equal protection challenge to the MCLE program.

21

MCLE. The exemptions are therefore rationally related to the

consumer protection purpose of the MCLE program in so far as

they identify categories of attorneys who, as compared to other

categories of attorneys, may not pose as serious a risk to

consumers even if these narrow categories of attorneys are not

subject to the same CLE requirements.

As this Court has clearly stated, the equal protection

guaranty does not require or authorize a court to invalidate

such a consumer protection measure simply because the

program does not go as far as it might in protecting consumers.

See, e. g. Railway Express v. New York, supra, 336 US. at

110, "It is no requirement of equal protection that all evils of

the same genus be eradicated or not at all."); McDonald v.

Board of Election Commissioners, 394 U.S. 802, 809 (1969)

("[A] legislature need not run the risk of losing an entire

remedial scheme simply because it failed, through inadvertence

or otherwise, to cover every evil that might conceivably have

been attacked.") The governing authorities of this Court

22

establish that under the rational relationship standard, a court

may not strike down a classification simply because the

classification may be imperfect. See, e.g., Dandridge v.

Williams, 397 U.S. 471, 485 (1970) or because it may be "to

some extent both under inclusive and over inclusive." Vance v.

Bradley, supra, 440 U.S. at 108.

The California Supreme Court therefore properly

applied the rational basis analysis in accordance with the

principles enunciated in FCC v. Beach Communications, supra

and did not do so to any "unreasonable extreme." In applying

the rational basis test, the Court is not obligated, nor is it

permitted to determine the validity of a legislative act on the

subjective motivations of a particular drafter. Petitioner focuses

his attack on the “improper” motives of the legislature in

crafting one or more of the exemptions. Petitioner's argument

as to what he perceives to be the true of political purposes for

the exemptions not only lacks relevance but finds no support in

23

the record. *

a The California Supreme Court Was Correct in

Concluding That Petitioner’s Substantive and

Procedural Due Process Claims Lacked Merit.

Petitioner argues that his due process rights were

violated because the MCLE Regulations make no provision for

a hearing before a State Bar member's license to practice law

can be suspended.’ (Pet. pp. 28-29.) However, appellant was

not entitled to a hearing prior to his transfer to administrative

inactive status due to his deliberate refusal to comply with the

* Petitioner improperly relies on a hearsay statement

supposedly reported to an aid to the governor for its attack on

the exemption for legislators. Petitioner cites no evidentiary

support regarding the other exemptions. Nor does petitioner

explain the California Court's independent adoption of Rule

958.

* Warden was not suspended but placed on administrative

inactive status. The distinction is important since a member

who has been placed on suspension must wait until his or her

suspension has been completed. On the other hand a member

who is placed on administrative inactive status can return to

active status immediately upon completing the MCLE

requirements and attesting that he or she has done so. (MCLE

Regulations, § 15.1.)

24

MCLE requirements. This Court’s opinion in Codd v. Velger

429 U.S. 624; 97 S.Ct. 882; 51 L.Ed.2d 92 (1977), is clear in

stating that a hearing is not required where there are no issues

of fact to be resolved.

In this case, the record clearly reflects that appellant was

given notice and an opportunity to respond and show that he

had in fact fulfilled the MCLE requirements. In response, he

deliberately indicated his refusal to comply and indeed vowed

he would never attend an MCLE lecture. (Resp’s App. 3,

p. 83.)

As this Court explained in Texaco, Inc. v. Short, 454

U.S. 516, 70 L.Ed.2d 738, 102 S. Ct. 781 (1982), there is no

impermissible legislative limitation of procedural protections in

a statute that provides a self-executing lapse of a property

interest upon the owner's failure to perform a reasonable

condition that indicates a present intention not to retain the

interest. Thus, where no factual determination is necessary and

no discretion is to be exercised, no process is due because the

25

owner of the property, not the state, terminates the interest

through inaction.’®

Furthermore, the California Supreme Court properly

concluded that petitioner’s substantive due process rights were

not violated. As stated infra, there is no fundamental right

being infringed by the current MCLE legislation. This Court

has indicated that the liberty component of the Fourteenth

Amendment’s Due Process Clause includes some generalized

due process right to choose one’s field of private employment,

but a right which is nevertheless subject to reasonable

'Petitioner’s petition also appears to suggest that he was

improperly denied an opportunity to challenge, before the State

Bar, the constitutionality of the MCLE program. California

Constitution Article III, section 3.5(a) precludes an

administrative agency from declaring a statute unconstitutional.

However, there is no denial of due process where the

constitutional challenge may be asserted upon a petition for

judical review of the agency’s action. Dash Inc. v. Alcoholic

Bev. Control App. Bd. 683 F.2d 1229 (9® Cir. 1982.)

Accordingly, even if appellant was given a hearing the only

issue would be whether or not he had complied and from his

own admission he had not. Therefore, a hearing would not

have prevented him from being placed on administrative

inactive status.

26

government regulation. Conn v. Gabbert 119 S.Ct 1292, 1295-

1296; 526 U.S. 286; 143 L.Ed.2d 399 (1999). California's

MCLE is a reasonable means of insuring that lawyers continue

to be fit and qualified to practice law. (See Verner v. State of

Colo. supra, 716 F.2d 1352, [“[A] state can require an attorney

to take reasonable steps to maintain a suitable level of

competency, so long as such requirements have a ‘rational

connection with the anneea fitness to or capacity to

practice law.’ [Citations.] We cannot say that the CLE

requirements in Colorado have no rational connection to a

lawyer’s suitability to practice law.”)

The California Court's decision on this issue does not

conflict with the decisions of this Court either on the proper

standard to be applied or the application of that standard in this

case.

27

FTE aL ee , San

IV. CONCLUSION

For all of the foregoing reasons, the petition should be

denied.

Dated: February 17, 2000

Respectfully submitted,

Marie M. Moffat

Lawrence C. Yee

Colin P. Wong

Cooper, White & Cooper

Mark L. Tuft

Kerr & Wagstaffe

James M. Wagstaffe

‘i ee.

By: oe ae: alk

Colin P. Wong vat

Attorneys for Respondents The State

Bar of California, Lorna Maynard and

Carole Rossi

29