RANDALL A. HAYS, as City Attorney, etc., et al., Plaintiffs, Cross-defendants and Respondents, v. BARRY WOOD, as City Councilman, etc., Defendant, Cross-complainant and Appellant; FAIR POLITICAL PRACTICES COMMISSION, Cross-defendant and Respondent.
S.F. No. 23830
Supreme Court of California
Nov. 30, 1979.
25 Cal.3d 772
Barry Wood, in pro. per., and James W. Luther for Defendant, Cross-complainant and Appellant.
Robert P. Will, Carl Boronkay, Richard Paul Gerber, Herbert M. Rosenthal and Robert M. Sweet as Amici Curiae on behalf of Defendant, Cross-complainant and Appellant.
Evelle J. Younger, Attorney General, Iver E. Skjeie, Assistant Attorney General, John Gordnier and Floyd D. Shimomura, Deputy Attorneys General, for Plaintiffs, Cross-defendants and Respondents.
Daniel H. Lowenstein, Robert M. Stern, Lee C. Rosenthal, Natalie E. West and Michael J. Baker for Cross-defendant and Respondent.
Kenneth J. Guido, Jr., as Amicus Curiae on behalf of Plaintiffs, Cross-defendants and Respondents and Cross-defendant and Respondent.
OPINION
MANUEL, J.-This case involves a challenge to a portion of the Political Reform Act of 1974 (the Act). We are concerned with chapter 7 of the Act entitled “Conflicts of Interest,” and examine, particularly,
The broad policy of the chapter, as expressed in
Specifically,
Defendant Barry Wood, an attorney in sole practice, assumed office as a City Councilman of the City of Ukiah on March 12, 1974. As an official covered by the Act, he filed annual disclosure statements covering the periods January 7, 1975, through March 12, 1975, and March 13, 1975, through March 9, 1976. Each statement complied substantially with the requirements of
Plaintiff, as Ukiah‘s city attorney, thereupon commenced this action to compel the disclosures required by
A. Overbreadth.
We first consider the contention of defendant and amici that the entire business income reporting scheme of
It is well settled that the general operation of political disclosure laws (as distinct from the quantitatively different treatment of particular occupations hereafter discussed in connection with defendant‘s separate equal protection argument) sufficiently touches “fundamental” constitutional interests to invoke a “strict scrutiny” standard of overbreadth review. (Buckley v. Valeo (1976) 424 U.S. 1, 66 [46 L.Ed.2d 659, 714, 96 S.Ct. 612]; City of Carmel-by-the-Sea v. Young (1970) 2 Cal.3d 259, 262-263, 266-268 [85 Cal.Rptr. 1, 466 P.2d 225, 37 A.L.R.3d 1313]; see County of Nevada v. MacMillen (1974) 11 Cal.3d 662, 671 [114 Cal.Rptr. 345, 522 P.2d 1345].)
We are aided in our analysis by the Nevada and City of Carmel cases, supra, two earlier decisions in which we examined campaign laws similar to that herein presented. In each instance we inquired whether the financial disclosure provisions of the statutes in question were justified as constituting the narrowest possible means of discouraging political corruption, viewed in the light of their “chilling” effect on those seeking and holding public office.
In City of Carmel, supra, we considered the 1969 financial disclosure law (former §§ 3600-3704, hereafter the 1969 Act), and discussed the basic standards applicable to statutes of this nature. The 1969 Act required “every public officer” (
In 1973, the Legislature enacted a new disclosure statute designed to overcome the deficiencies of its predecessor. (§ 3600 et seq., superseded but not repealed by
In County of Nevada v. MacMillen, supra, 11 Cal.3d 662, we upheld the 1973 Act, finding that it sufficiently remedied the flaws which we had observed in the 1969 version. We stressed that the 1973 law went only so far as necessary to discourage actual and substantial conflicts of interest. In particular we noted that, compared with the earlier statute, it applied to a more limited group of high-level offices and required less specific information about the investments covered. Most significantly,
We conclude that the present law is within the guidelines established by City of Carmel and Nevada. Like the 1973 law, application of the present Act is restricted to those designated high-level state and local offices which might reasonably be expected to have a substantial influence on public policy. With the few exceptions discussed below, the disclosure schemes of the two laws are similar. They seek appropriate information about the sources and general magnitude of financial interests which may give rise to conflicts of interest, but refrain from prying unnecessarily into their exact nature and amount.
As originally enacted, the current Act‘s definition of reportable “income” encompassed, with specified exceptions, “income of any nature from any source.” (
Noting that he held office from March 12, 1974, through December 31, 1976, defendant suggests the “saving” amendment does not apply to his prior tenure. We disagree. The relief plaintiff seeks is injunctive (see
Unlike its predecessors, the current Act requires that disclosure of an official‘s income from business interests, when it exceeds a speci-
Viewing the source requirement solely on the ground here advanced (and placing to one side for the moment the separate but related matters of privilege and equal protection) we find no basis for concluding that such a requirement necessarily results in unwarranted and unconstitutional intrusion into protected zones of privacy. On the contrary, we believe that inquiry into actual sources bears a demonstrable relation to the substantial governmental interests here involved. (See Buckley v. Valeo, supra, 424 U.S. 1, 66-67 [46 L.Ed.2d 659, 714-715].) It is after all the clients or customers of a business entity in which a public official has a substantial interest who present the greatest potential source of conflicting obligations and interests. Defendant and amici fail to persuade us that practical alternative means exist whereby the true sources of potential conflicts of interest may be revealed. Acknowledging, as we do, the public interest in avoiding such conflicts, and balancing that interest against the intrusion on recognized private rights, we do not find the statute invalid on grounds that it requires disclosure of the actual source of business income. As we noted in Nevada, “neither the right to privacy, nor the right to seek and hold public office, must inevitably prevail over the right of the public to an honest and impartial government.” (11 Cal.3d at p. 672.)
The foregoing discussion has focused essentially on the public official‘s constitutional rights to privacy. Much of it has equal application, however, to the corresponding privacy rights of disclosed clients and customers. While the client or customer may not himself be in the public arena, his business or professional relationship with the official may well give rise to the opportunities for divided loyalties and a resulting potential for improper influence over the conduct of public affairs. Thus, again viewing the matter solely from the standpoint of unwarranted invasion of privacy, we conclude that the same considerations of public interest which we have previously recognized as justifying limited disclosure by the affected official also support the reciprocal but limited invasion of client or customer privacy.
We conclude for the foregoing reasons that the Act, viewed in its general aspect, does not constitute an unconstitutionally overbroad intrusion into protected zones of privacy and association. It remains,
B. Privilege.
We have concluded that the Act was not intended to and did not affect or dilute the attorney-client privilege (
It is well established that the attorney-client privilege, designed to protect communications between them, does not ordinarily protect the client‘s identity. (Brunner v. Superior Court (1959) 51 Cal.2d 616, 618 [335 P.2d 484]; Satterlee v. Bliss (1869) 36 Cal. 489, 507.) A limited exception to this rule has been recognized, however, in cases wherein known facts concerning an attorney‘s representation of an anonymous client implicate the client in unlawful activities and disclosure of the client‘s name might serve to make the client the subject of official investigation or expose him to criminal or civil liability. (See Ex parte McDonough (1915) 170 Cal. 230, 236-237 [149 P. 566]; People v. Sullivan (1969) 271 Cal.App.2d 531, 545-546 [77 Cal.Rptr. 25]; Baird v. Koerner (9th Cir. 1960) 279 F.2d 623, 630; In re Grand Jury Proceedings (5th Cir. 1975) 517 F.2d 666, 670-671, and cases there collected.) These principles, in our view, remain wholly applicable in cases such as that before us.
We note that the Fair Political Practices Commission (Commission), charged with enforcing the Act, has reached a similar conclusion. A recently adopted regulation (Cal. Admin. Code, tit. 2, § 18740) sets up a procedure by which an attorney-official (or any other official asserting that full compliance with the requirements of section 87207, subdivision (b) would result in the infringement of a recognized privilege) may seek an appropriate determination from the Commission. The Commission‘s order in such a proceeding is subject to judicial review. (
We conclude from the foregoing that the subject provisions of the Act do not operate to infringe upon the attorney-client privilege or the attorney‘s duty to maintain and preserve the confidence of his clients.
We finally turn our attention to that feature of the Act which sets up a separate and markedly lower source-reporting threshold for those public officials who are attorneys and brokers. The distinction thus created, defendant and amici urge, is in violation of state and federal provisions guaranteeing equal protection of the laws. This is so, they argue, whether it be viewed under the standard of “strict scrutiny” reserved for the examination of classifications involving “suspect classes” or touching upon “fundamental interests” (see People v. Olivas (1976) 17 Cal.3d. 236, 243-244 [131 Cal.Rptr. 55, 551 P.2d 375], and cases there cited), or whether it be assessed under the less searching “rational relationship” standard. Respondents, on the other hand, argue strenuously that this is not a proper case for the application of “strict scrutiny“; viewed under the “traditional rational relationship” standard, they assert, the classification here involved is clearly within the bounds of proper legislative3 judgment. Because we disagree with this latter assertion, we have no occasion to address the matter from the standpoint of “strict scrutiny.”
The constitutional bedrock upon which all equal protection analysis rests is composed of the insistence upon a rational relationship between selected legislative ends and the means chosen to further or achieve them. This precept, and the reasons for its existence, have never found clearer expression than the words of Justice Robert Jackson, uttered 30 years ago. “I regard it as a salutary doctrine,” Justice Jackson stated, “that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. This equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there is no
It is with these principles firmly in mind that we have undertaken to assess the classification here before us. In so doing our function is, as we have recently indicated, “to conduct ‘a serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals’ [citation]; . . .” (Newland v. Board of Governors (1977) 19 Cal.3d 705, 711 [139 Cal.Rptr. 620, 566 P.2d 254].) The most that we require of that correspondence is that it be rational—i.e. that, in the words of Justice Jackson, the classification be found to rest upon “some reasonable differentiation fairly related to the object of regulation.” For reasons to be stated, we fail to discern the requisite rationality in the classification here adopted.
We first recapitulate briefly the substance of the classification which concerns us.
In assessing the rationality of this classification we are first required to identify the goals or ends sought to be achieved or furthered by the Act in the area of present concern. Happily, we have not far to seek, for the Act itself contains a specific enumeration of its underlying purposes, among which is found the following: “(d) Assets and income of public officials which may be materially affected by their official actions should be disclosed. . . .” (
It is suggested that such a ground of difference is to be found in the various levels of profit margin inherent in various kinds of business activity. The argument, as we understand it, is as follows: The likelihood of conscious or unconscious bias in a public official in favor of one with whom he has business dealings is normally a function of the amount of benefit flowing to the official in terms of actual profits derived by him as a result of his business dealings with the particular customer or client. Thus the most nearly perfect system for the detection of such bias would be one directly relating to profit. Due to the administrative diffi-
We see no need to question the accuracy of these figures, just as we see no need to dispute the statistical compilations presented by amicus State Bar of California with respect to certain other professions.6 The statistical data simply emphasize and particularize what common knowledge recognizes to be true: that persons and entities whose business is the providing of professional services realize a substantially greater percentage of gross income as net profit than do persons and entities whose business is the manufacturing and sale of goods and property, whose gross receipts necessarily reflect the recapture of amounts expended for materials and acquisition. What we fail to perceive, however, is how this fact in any way justifies the selection of but two of the several professions having relatively high profit margins for the special treatment which results from the classification here in question.
What the foregoing demonstrates, we believe, is that respondents’ effort to explain the classification before us on the basis of relative profit margin differentials does no more than shift the focus of inquiry from one distinction to another. Thus, if it be assumed for purposes of argument that such differentials would justify differing treatment of lawyers and brokers on the one hand and other “businessmen” (excluding other professionals) on the other, we are left with the distinction, implicit in the legislative scheme, between lawyers and brokers on the one hand
Respondents resist the suggested line of inquiry—which amounts to an examination of the so-called “underinclusive” aspect of the basic classification before us—on the basis of a long and venerable line of cases which, they assert, stand for the proposition that a legislative body, in addressing a particular problem area, need not attack all phases at once but rather is free to address each in its turn in accordance with perceived legislative priorities. (See, e.g., Williamson v. Lee Optical Co. (1955) 348 U.S. 483, 489 [99 L.Ed. 563, 573, 75 S.Ct. 461]; West Coast Hotel Co. v. Parrish (1937) 300 U.S. 379, 400 [81 L.Ed. 703, 713, 57 S.Ct. 578, 108 A.L.R. 1330]; Werner v. Southern Cal. etc. Newspapers, supra, 35 Cal.2d 121, 131-132.) As we develop below, however, we believe that respondents read these cases too broadly—at least insofar as they relate to the application of the equal protection provisions of our state Constitution. (Cal. Const., art. I, § 7; art. IV, § 16.)7
The above-cited case of Werner v. Southern Cal. etc. Newspapers, supra, which represents the definitive statement of the subject doctrine in this jurisdiction, makes it lucidly apparent that the legislative body, when it chooses to address a particular area of concern in less than comprehensive fashion by merely “striking the evil where it is felt most” (35 Cal.2d at p. 132) may not do so wholly at its whim. We were there concerned with an equal protection attack on
It is clear from the foregoing that the Werner case does not stand for the proposition here advanced. That case establishes, on the contrary, that when the legislative body proposes to address an area of concern in less than comprehensive fashion by “striking the evil where it is felt most” (Id., at p. 132), its decision as to where to “strike” must have a rational basis in light of the legislative objectives. The same principle was expressed by the United States Supreme Court in Rinaldi v. Yeager (1966) 384 U.S. 305, 308-309 [16 L.Ed.2d 577, 579-580, 86 S.Ct. 627], when it stated, at pages 308-309 [16 L.Ed.2d at pages 579-580]: “The Equal Protection Clause requires more of a state law than nondiscriminatory application within a class it establishes. [Citation.] It also imposes a requirement of some rationality in the nature of the class singled out. To be sure, the constitutional demand is not a demand that a statute necessarily apply equally to all persons. ‘The Constitution does not require things which are different in fact . . . to be treated in law as though they were the same.’ [Citation.] Hence, legislation may impose special burdens upon defined classes in order to achieve permissible ends. But the Equal Protection Clause does require that, in defining a class subject to legislation, the distinctions that are drawn have ‘some relevance to the purpose for which the classification is made.’ [Citations.]”
We conclude from the foregoing that whereas variations in relative profit margins among the various professions and businesses might well form the basis of a classification bearing a fair and reasonable relationship to the stated legislative objective, the classification here before us may not be justified on that basis. This classification is not
Four such grounds of difference are suggested. It is first urged that the lawyer‘s typical role in the private sector—which often includes the representation of private interests vis-a-vis government—renders it more likely that a potential conflict of interest will exist in any given case when a lawyer also serves in a public capacity than when persons employed in other professions and businesses having similar profit-percentage characteristics serve in a similar public capacity. We must confess, however, that the logic of this argument eludes us. Even if it be assumed for purposes of argument that the proportion of a lawyer‘s private clientele which might have interests in potential conflict with his public responsibilities is greater than the proportion of, for example, an architect‘s or an accountant‘s clientele having such interests, it is a great step from this assumption to suggest that the lawyer is for this reason the more likely to encounter a situation of potential conflict. What is conspicuously absent from the equation is the matter of volume. Thus, for example, suppose that a lawyer serving on a city council has 10 clients providing him with over $1,000 in fees each. On the same council sits an architect or accountant or physician having 25 such clients. Even if the probability of potential conflict within a given sample of clients is twice as high for the lawyer as for the other professional, more situations of potential conflict would be expected to occur with respect to the latter. This argument, in short, does not provide a9
It is argued, however, that the unique nature of the lawyer‘s relationship with his client renders him peculiarly susceptible to conscious or unconscious bias when acting in a public capacity. Certain habits of loyalty, developed as a result of the confidential, personal, and relatively intense character of this relationship—together with the aspect of advocacy which is often present—may prove difficult to overcome when the lawyer shifts from his private to his public role; it is this danger, respondents assert, which renders special treatment appropriate. Again, however, we fail to perceive how these qualities of the attorney-client relationship can reasonably be said to set it apart as, in the words of Werner, “the most conspicuous example of the danger...sought to [be] preclude[d].” (35 Cal.2d, at p. 132.) The aspect of confidentiality is surely not unique to the attorney-client relationship; it is present as well in professional relationships entered into by physicians (see
The third ground of difference advanced relates to the customary practice of many lawyers of accepting retainers. Such payments, it is urged, are in some cases only loosely connected to services actually rendered, and thus constitute a unique device for channeling money in payment for public favors to lawyer public officials which is normally unavailable in the case of other occupational groups. Again, however, we fail to perceive a real difference in the asserted distinction. Disclosable “income” as defined by
Finally respondents suggest that the classification here in question finds a rational basis on the ground of strengthening public confidence in the political process. This argument, as we understand it, rests upon the rather curious assertion that the public, seeing an attorney advocate a position in his role as public official, “may believe, more so than for persons in other professions,” that he is really promoting the interests of a private client. In order to disabuse the public of this pernicious and misguided notion, we are advised, more stringent disclosure require-
We have concluded for the foregoing reasons that the classification here in question, insofar as it relates to attorneys, fails to exhibit any fair and reasonable relationship to the stated legislative objective and therefore is in violation of the principles of equal protection embodied in our state and federal Constitutions. Although as we have indicated no broker is a party to this action, we believe it manifest from what we have said that the classification insofar as it relates to brokers must fail as well. While we agree that there may be good and adequate grounds for distinguishing, for example, a real estate broker from a real estate dealer (due to the profit margin differential resulting from the inclusion of recovered investment in the gross receipts of the latter), no grounds occur to us or have been suggested which would justify differentiating brokers from all others with a similar profit margin—such as real estate salesmen for example. In view of this we see no point in dealing with the classification piecemeal. We therefore hold that the classification before us, set forth in
The judgment is reversed with directions to enter judgment in conformity with the views herein expressed.
Tobriner, J., Clark, J., and Richardson, J., concurred.
MOSK, J.—I concur in the judgment but I cannot subscribe to the majority‘s stilted equal protection analysis.
In my concurring opinion in Hawkins v. Superior Court (1978) 22 Cal.3d 584, 595 [150 Cal.Rptr. 435, 586 P.2d 916], I described the
There are additional developments not discussed in Hawkins. (See a study of Justice Stevens’ critical views of the two-tier test in Comment, The Emerging Constitutional Jurisprudence of Justice Stevens (1978) 46 U.Chi.L.Rev. 155, 206-217.) Justice Brennan writing for himself, Justices White, Marshall and Blackmun, declared that the equal protection problem he saw in University of California Regents v. Bakke (1978) 438 U.S. 265, 324 [57 L.Ed.2d 750, 792, 98 S.Ct. 2733], could not be measured by either the strict scrutiny or the rational relationship test and thus he applied an intermediate test. Now by current count no less than five Supreme Court justices have on appropriate occasion found that cases do “not fit neatly into our prior analytic framework.” (Id., at p. 358 [57 L.Ed.2d at p. 814].) By some analyses the number is higher.1 The Idaho Supreme Court, in a thoughtful opinion by Justice Shepard, also added an intermediate dimension to equal protection. (Jones v. State Board of Medicine (1976) 97 Idaho 859 [555 P.2d 399, 410], cert. den. 431 U.S. 914 [53 L.Ed.2d 223, 97 S.Ct. 2173].)
In its initial stages, this case was a textbook illustration of the result-orientation of the two-tier test of equal protection. The trial court employed a “rational basis” standard and ruled the legislation valid. The Court of Appeal measured the discriminatory legislation against the “strict scrutiny” standard and, finding no compelling state interest to justify the disparity between requirements imposed on attorneys and brokers and those imposed on all other occupations, invalidated the
Now my colleagues revert to the rational relationship test and, curiously, find every conceivable justification for the act to be wholly irrational. That is a heavy indictment of a legislative measure adopted by the people of the state and found to be valid by an able trial court. That its underlying bases are at least arguable should immunize the measure from rational relationship attack. “It is not within the competency of the courts to arbitrate in such contrariety.” (Rast v. Van Deman & Lewis (1916) 240 U.S. 342, 357 [60 L.Ed. 679, 687, 36 S.Ct. 370].)
My Hawkins concurrence proposed that we refine the current simplistic approach by applying a third, or intermediate, tier of equal protection analysis. As explained by Professor Tribe, “intermediate scrutiny has been triggered if important, though not necessarily ‘fundamental’ or ‘preferred,’ interests are at stake” or “if sensitive, although not necessarily suspect, criteria of classification are employed.” (Tribe, American Constitutional Law (1978) pp. 1089-1090.)
Application of this intermediate level of scrutiny was urged because of my belief that “This wide chasm between levels of review is entirely unjustified, given the broad spectrum of rights and classifications that demand equal protection analysis.” (Hawkins, at p. 602 of 22 Cal.3d.) In light of this spectrum, it is apparent that coherent judicial decisions are most effectively promoted by a focus on “such factors as the importance of the rights involved, the extent to which the classification at issue interfered with their exercise, and the significance of the state interests advanced in support of the classification.” (Id. at p. 599.) Such a focus permits courts to discuss candidly the considerations that ultimately determine whether a statutory scheme will withstand equal protection challenge; it thereby avoids the use of artificial labels that may mask the true justifications for judicial decisions. (Id. at p. 598.)
Analysis of the interests at stake in this case illustrates the inadequacy of our rigid two-tiered approach to the equal protection clause. The Court of Appeal properly held attorneys and brokers are not a “suspect class” and for that reason do not trigger the strict scrutiny test. But in examining “the importance of the rights involved,” it ruled that
I doubt that rights so fundamental as to require strict scrutiny are involved here. No serious contention is made that public officials should not be required to report details of income that exceeds $10,000. For such sums, all persons are treated equally. The objection is to singling out lawyers and brokers2 and as to them alone requiring disclosure of income over $1,000. Thus the vice of the unequal statutory command is not qualitative but quantitative discrimination, and thus lacks the fundamental nature to compel strict scrutiny. It does not follow, however, that the rights at stake should ipse dixit be declared so unimportant that they are subject merely to the minimal judicial scrutiny of the rational basis test, even if they are found by the present majority to be irrationally affected.
We should determine the constitutionality of the statutory classification in this case by considering the rights involved and the classification‘s impairment thereof in light of the state interests advanced in its support. The analysis leads to the conclusion that the scheme cannot withstand equal protection attack.
The first right—call it privilege or confidentiality—is cavalierly brushed aside by the majority. Yet it cannot be gainsaid that confidentiality is the bedrock upon which the attorney-client relationship rests. Confidentiality is of vital significance to the client who entrusts protection of his liberty, his fortune and his security to the counselor whom he consults. Confidentiality is of equal consequence in maintaining the professional stature and competence of the attorney whose advice has been
Justice Story said it all a century and a half ago when he wrote, “Notwithstanding the sneers of ignorance, and the gibes of wit, no men are so constantly called upon in their practice to exemplify the duties of good faith, incorruptible virtue, and chivalric honor, as lawyers. To them is often entrusted the peace and repose, as well as the property, of whole families; and the slightest departure from professional secrecy, or professional integrity, might involve their clients in ruin.” (Story, Story‘s Miscellaneous Writings (1835) p. 452.)
But, argues the Fair Political Practices Commission, an administrative procedure has been adopted to permit nondisclosure of the name of a private client of a public official in certain cases of privilege. (
The right of members of the class to seek and hold public office must also be considered. While under the act attorneys are not barred from holding office, they clearly suffer significant detriment. Although it may be argued that the discrimination is merely an indirect, psychological restraint or deterrent to the exercise of protected political and associational interests, I cannot agree that such a burden, even if subtle, is an inconsequential encumbrance on rights of citizenship.
In considering the extent to which the classification scheme impairs these interests, one must initially observe that the statute requires lawyers, like all other persons similarly situated, to identify sources of personal income. It discriminates against lawyers, however, in that the
The purpose of the present statute is to obtain disclosure of financial interests material to the public decision-making process. To accomplish that purpose the act requires revelation not merely of the source of the attorney‘s income—his law practice—but the identity of his clients. This is justified, according to the commission, because the clients “present the greatest potential source of conflicting obligations.”
If we assume arguendo that the fact a client pays a fee of $1,000 to a lawyer, who serves part-time on a local city council, creates a potential conflict of interest, can it be said that any less potential conflict is created by the patient who pays a $1,000 medical bill to his physician who also serves on the council, by the businessman who pays a $1,000 fee to his accountant, or by the builder who pays $1,000 to an architect or engineer for services rendered? If the physician-patient privilege is protected for fees under $10,000, can any justification be advanced for breaching the attorney-client privilege where an identical fee is involved?3 I suggest no such state interest can be advanced, unless we are willing to indulge in the assumption that attorneys are more venal, more prone to divided loyalty, more oblivious to their public responsibilities or more likely to succumb to unethical financial practices, than physicians, accountants, architects, or engineers. Indeed, the commission implies this assumption when it argues in effect that a client‘s business or professional relationship with the attorney may give rise to opportunities for divided loyalties and a resulting potential for improper influence over the conduct of public affairs. No persuasive justification, however, has been advanced to so denigrate the legal profession.
The legal profession has been subject to a withering barrage of irrational criticism in recent years from a wide spectrum of commentators. Because of this demagogic tendency to cast the lawyer in the role of the villain responsible for most of society‘s ills, the authors of the instant statute understandably yielded to the temptation to single out lawyers for discriminatory treatment. Although this result may be currently acceptable among those unfamiliar with the monumental contributions of lawyers to the development of our republic, such political or emotional motivation does not insulate this discriminatory statute from constitutional invalidation.
I do not find that the state‘s meager interest in support of the sensitive classification herein outweighs the important right of petitioner and those similarly situated to be free from discriminatory treatment. Accordingly, the section must be invalidated insofar as it provides a lower threshold reporting requirement for lawyers and brokers.
NEWMAN, J., Dissenting.—The majority opinion concedes that the record here is very thin as to “brokers“. I think it is so thin that this court is not justified in negating the aims of the citizens who voted to approve the initiative measure with its broker requirements.
Regarding the initiative measure and lawyers, does not part C of the majority opinion, on equal protection, evoke memories of classical comments on law, logic, and experience? (E.g., Holmes, The Common Law (1881) p. 1; Radin, Law as Logic and Experience (1940) p. 161.) The “experience” here, I submit, at least balances the equal protection “logic.” (See A Legal Look at Congress and the State Legislatures in Legal Institutions Today and Tomorrow (Paulsen edit. 1959) at pp. 67 and 69-73 (“Legislatures and Lawyers“); cf. Fewer Lawyer-Legislators, The Recorder (Nov. 8, 1979) p. 1.)
The State Bar of California, with proclaimedly watchful but beneficent guidance from this court, over many years has constructed a labyrinth of unique rules that purport to govern the legal profession.
Bird, C. J., concurred.