In re Mason Harry ROSE V. on Discipline.
Supreme Court of California.
*302 James Marvin Weinberg, Santa Monica, for Petitioner.
Robert Rudolph, San Francisco, for Jerome Berg as Amicus Curiae on behalf of Petitioner Mason Harry Rose V.
Marie M. Moffat, Richard J. Zanassi, San Francisco, and Jill A. Sperber, San Francisco, for Respondent State Bar of California.
GEORGE, C.J.
The State Bar Court recommends that we disbar petitioner Mason Harry Rose V. Petitioner has sought review of that recommendation and contends we must issue a writ of review, hear oral argument, and render a written opinion before ordering the discipline as recommended. According to petitioner, our summary denial of his petition for review of the State Bar Court's decision would be an unconstitutional attempt to invest the State Bar with judicial power, as well as a deprivation of his right to a judicial determination of whether he should be disciplined. Petitioner further contends that under the California Constitution he has a right to oral argument and a written opinion, and that the absence of these procedural safeguards violates the due process clause of the United States Constitution.[1]
We conclude that this court may summarily deny an attorney's petition for review of a State Bar Court decision recommending disbarment or suspension without violating constitutional principles. The State Bar Court exercises no judicial power, but rather makes recommendations to this court, which then undertakes an independent determination of the law and the facts, exercises its inherent jurisdiction over attorney discipline, and enters the first and only disciplinary order. Furthermore, because our denial of a petition for review of the State Bar Court recommendation is not a decision of a "cause," as that term is used in the state constitutional provision requiring such decisions to "be in writing with reasons stated" (Cal. Const., art. VI, § 14), we need not issue a written opinion before issuing the order. Nor does article VI, section 2, of the California Constitution confer a right to oral argument prior to issuance of our order. Finally, our consideration of the legal and factual assertions presented in a petition for review, together with our independent review of the record of the State Bar Court proceedings, satisfies the requirements of procedural due process.
I
The facts relevant to the State Bar Court's recommendation that petitioner be disbarred are undisputed for purposes of the present proceeding. Petitioner was admitted to the California State Bar in 1971. In Rose v. State Bar (1989)
Relying upon his untimely completion of the conditions of probation, the State Bar charged petitioner with three counts of violating Business and Professions Code section 6103,[2] which provides that willful disobedience of a court order requiring an attorney to perform an act connected with his or her profession constitutes cause for disbarment or suspension. The State Bar Court hearing judge found that petitioner willfully violated section 6103, as charged in each of the three counts. The judge cited aggravating circumstances including petitioner's previous discipline imposed in 1989 and 1992, as well as additional periods of suspension we imposed in 1995 for petitioner's failure to satisfy other conditions of probation, which included filing timely reports, trust account audits, and an affidavit indicating compliance with the duties imposed upon suspended attorneys by rule 955 of the California Rules of Court.[3] In mitigation, the hearing judge credited petitioner's candid admission of misconduct and cooperation in the proceeding, his extensive community service, and his belated compliance with the three conditions of probation. Nevertheless, based upon petitioner's repeated violation of disciplinary orders and previous misconduct, the hearing judge recommended disbarment. The State Bar Court Review Department agreed with the hearing judge and also recommended disbarment.
Pursuant to section 6083, subdivision (a), and rule 952(a), petitioner filed in this court a petition for review of the State Bar Court's decision. The petition raises several issues regarding whether the evidence establishes a level of culpability sufficient to prove a willful violation of section 6103, and whether disbarment is appropriate discipline under the circumstances. In addition, petitioner contends that the State Bar Act is unconstitutional in failing to provide a right to judicial review by a court established pursuant to article VI of the California Constitution (hereafter, article VI). We ordered the State Bar to show cause why we "should not issue a writ of review and accord this proceeding plenary consideration notwithstanding [our] determination that no issue raised warrants consideration under California Rules of Court, rule 954(a)." Our order directs the parties to address whether there is a constitutional requirement of plenary consideration, as well as the criteria we may use in determining whether plenary review should be accorded.
II
We begin our analysis with an overview of State Bar Court disciplinary proceedings and provisions for review of State Bar Court decisions.
The State Bar is a constitutional entity, placed within the judicial article of the California Constitution, and thus expressly acknowledged as an integral part of the judicial function. (Art. VI, § 9; In re Attorney Discipline System (1998)
*304 For most of its history, the State Bar's disciplinary system was operated primarily with the assistance of volunteers, who acted as referees and made recommendations to the bar's board of governors. (See In re Attorney Discipline System, supra,
The Hearing Department conducts evidentiary hearings on the merits in disciplinary matters. (Rules Proc. of State Bar (hereafter, Rules of Procedure), rules 2.60, 3.16.) An attorney charged with misconduct is entitled to receive reasonable notice, to conduct discovery, to havе a reasonable opportunity to defend against the charge by the introduction of evidence, to be represented by counsel, and to examine and cross-examine witnesses. (§ 6085.) The Hearing Department renders a written decision recommending whether the attorney should be disciplined. (Rules Proc, rule 220.) Any disciplinary decision of the Hearing Department is reviewable by the Review Department at the request of the attorney or the State Bar. (Id., rule 301(a).) In such a review proceeding, the matter is fully briefed, and the parties are given an opportunity for oral argument. (Id., rules 302-304.) The Review Department independently reviews the record, files a written opinion, and may adopt findings, conclusions, and a decision or recommendation at variance with those of the Hearing Department. (Id., rule 305.) A recommendation of suspension or disbarment, and the accompanying record, is transmitted to this court after the State Bar Court's decision becomes final. (§ 6081; Rules Proc, rule 250.)
Although disciplinary proceedings in the State Bar Court include quasi-judicial evidentiary hearings and decisions rendered by official adjudicators, the State Bar Court is not an ordinary administrative agency. "[The State Bar Court] is not an administrative board in the ordinary sense of the phrase. It is sui generis. ... [¶] ... [I]n matters of discipline and disbarment, the State Bar [Court] is but an arm of this court, and ... this court retains its power to control any such disciplinary proceeding at any step. [Citation.]" (Brotsky v. State Bar (1962)
Just as the State Bar Court is unique, so are the disciplinary proceedings heard by the State Bar Court. "Proceedings before the State Bar are sui generis, *305 neither civil nor criminal in character, and the ordinary criminal procedural safeguards do not apply. [Citations.]" (Yokozeki v. State Bar (1974)
Provisions regarding review of State Bar Court decisions recommending disbarment or suspension are found in the Business and Professions Code and the California Rules of Court. The State Bar Court must file in this court a certified copy of its decision and the record of the proceeding. (§ 6081.) "Any person complained against ... may have the action of the [State Bar Court] ... reviewed by the California Supreme Court or by a California Court of Appeal in accordance with the procedure prescribed by the California Supreme Court." (§ 6082.)[6] A petition to review, reverse, or modify a decision recommending disbarment or suspension may be filed with this court within 60 days of the decision, and the petitioner has the burden of establishing error. (§ 6083, subds.(a), (c).) "When no petition to review or to reverse or modify has been filed by either party within the time allowed therefor, or the petition has been denied, the decision or order of the State Bar Court shall be final and enforceable. In any case in which a petition to review or to reverse or modify is filed by either party within the time allowed therefor, the Supreme Court shall make such order as it may deem proper in the circumstances. Nothing in this subdivision abrogates the Supreme Court's authority, on its own motion, to review de novo the decision or order of the State Bar Court." (§ 6084, subd. (a).)
We have adopted rules of court implementing these statutes. A petition for review of a State Bar Court decision recommending disbarment or suspension must be filed within 60 days after the filing in this court of a certified copy of the decision. (Rule 952(a).) Unless otherwise ordered, if no such petition is filed, "the recommendations of the State Bar Court shall be filed as an order of the Supreme Court following the expiration of the time for filing a timely petition...." (Rule 953(b).) Rule 954(a) sets forth the circumstances in which we will grant review: "The Supreme Court will order review of a decision of the State Bar Court recommending disbarment or suspension from practice when it appears (1) necessary to settle important questions of law; (2) the State Bar Court has acted without or in excess of jurisdiction; (3) petitioner did not receive a fair hearing; (4) the decision is not supported by the weight of the evidence; or (5) the recommended discipline is not appropriate in light of the record as a whole." Rule 954(b) specifies the consequences of an order denying a petition for review: "Denial of review of a decision of the State Bar Court shall constitute a final judicial determination on the merits and the recommendation of the State Bar Court shall be filed as an order of the Supreme Court."
Before the adoption of rule 954 in 1991, as a matter of policy we ordinarily granted petitions for review of recommendations of disbarment or suspension, and issued written opinions following briefing and oral argument. (See In re Attorney Discipline System, supra,
III
Petitioner challenges the validity of the procedural scheme for review of State Bar Court decisions on the ground that it impermissibly authorizes this court to summarily deny a petition for review of a State Bar Court decision recommending disbarment or suspension. According to petitioner, our denial of such a petition without hearing oral argument and issuing a decision explaining the reasons for our denial of review deprives an attorney of the constitutional right to a judicial determination of whether he or she should be disbarred or suspended. Petitioner claims that a summary denial of review violates article VI, section 14, which provides that decisions of this court that determine causes shall be in writing with reasons stated. He also asserts that article VI, section 2, confers a right to oral argument in this context. Petitioner further contends that the procedural scheme violates his right to de novo review, by an article VI court, of the State Bar Court's determination of questions of law and fact. As we shall explain, we conclude that petitioner's contentions are without merit.
A
Article VI, section 1, states in part: "The judicial power of this State is vested in the Supreme Court, courts of appeal, superior courts, and municipal courts." Petitioner correctly observes that the State Bar Court is not an article VI court. He implies, and amicus curiae contends, that the State Bar Act attempts to invest the State Bar Court with judicial power by rendering its decisions final upon our denial of a petition for review. (See § 6084, subd. (a).) Petitioner and amicus curiae overlook the circumstance that only this court renders decisions or orders imposing discipline.
As explained above, the State Bar Act expressly recognizes and reserves to this court the judicial power over attorney discipline. (§ 6087.) Because the State Bar Court is simply an administrative arm of this court and еxercises none of our inherent authority over attorney discipline, "`the judicial power in disciplinary matters remains with this court, and was not delegated to the State Bar.' [Citation.]" (In re Attorney Discipline System, supra, 19 Cal.4th at pp. 599-600,
*307 Statutory provisions for our review of State Bar Court decisions reflect a legislative acknowledgment that we exercise original jurisdiction over disciplinary proceedings, and that the State Bar's determinations are advisory only. (Brotsky v. State Bar, supra,
Contrary to petitioner's assertion, the circumstance that we may summarily deny a petition for review of a State Bar Court decision does not mean that an attorney is deprived of the right to a judicial determination of whether the law and facts warrant thе recommended discipline. As the Legislature has recognized, State Bar Court decisions are reviewed "in accordance with the procedure prescribed by the California Supreme Court." (§ 6082.) We have specified that an attorney may petition for review of a State Bar Court decision recommending disbarment or suspension (rule 952(a)), and that we will order review if, among other things, the petitioner did not receive a fair hearing, the decision is not supported by the weight of the evidence, or the recommended discipline is not appropriate in light of the record (rule 954(a)). Our denial of review of such a decision "shall constitute a final judicial determination on the merits...." (Rule 954(b).) Therefore, in deciding whether to grant a petition for review pursuant to rule 954(a), we undertake a judicial determination whether the attorney should be disciplined as recommended by the State Bar Court.
As established in part II, ante, the State Bar Court and attorney disciplinary proceedings are sui generis and not necessarily governed by procedures applicable to ordinary civil and criminal litigation. In assessing whether particular procedures extend to attorney disciplinary matters, we often are guided, but not bound, by the law applicable in analogous contexts, including ordinary administrative and quasi-judicial proceedings. To evaluate further petitioner's claim that our summary denial of his petition for review would deprive him of a judicial determination regarding the appropriate discipline, we examine a number of state and federal decisions that have considered the effect of an order by this court summarily denying review of State Bar recommendations, as well as administrative or quasi-judicial determinations. Although no case has considered the precise question presented here, the following authorities support the conclusion that our summary denial of a petition fоr review pursuant to rule 954(a) constitutes a final judicial decision on the merits.
In Konigsberg v. State Bar of California (1957)
The conclusion in Konigsberg that we considered claims raised in the applicant's petition for review, even when we summarily denied the petition, is consistent with the United States Supreme Court's previous holding that, if a petition for writ of review in this court is the exclusive means of obtaining review of a quasi-judicial decision, our summary denial of such a petition is deemed a final judicial determination on the merits. In Napa Valley Co. v. R.R. Com. (1920)
We have summarized the Napa Valley decision as follows: "It was contended that since no writ of review had issued, the court `instead of hearing, refused to hear, instead of adjudicating, refused to adjudicate, and that from this negation of action or decision there cannot be an assertion of action or decision with the estopping force of res judicata ...'. The opinion rejected this contention and held that the order of denial was the exercise of the judicial power of the court. By this decision, the United States Supreme Court affirmed the judgment of the District Court [citation], wherein that court said: [¶] `... We are bound to assume ... that the petition put that court in full and complete possession of all the facts upon which [the plaintiff] relies here ...; and that being true, the denial of the petition was necessarily a final judicial determination ... [that] is as effectual as an estoppel as would have been a formal judgment upon issues of fact.... Nor is it material that the reasons [given] for the conclusion reached by the court are not given.'" (Geibel v. State Bar (1939)
In Geibel v. State Bar, supra,
Our more recent decisions adhere to this reasoning. Thus, in Consumers Lobby Against Monopolies v. Public Utilities Com. (1979)
*310 These decisions confirm that, because this court has exclusive original jurisdiction to discipline attorneys, and the sole means of obtaining review of State Bar Court disciplinary recommendations is by a petition for review filed in this court, our summary denial of such a petition amounts to an exercise of our jurisdiction and a judicial determination on the merits. This conclusion is supported further by federal decisions holding that the opportunity to file a petition for writ of review of State Bar disciplinary decisions, as well as administrative and quasi-judicial decisions, provides an adequate means of litigating federal claims in state courts.
Federal courts generally are required to abstain from granting injunctive or declaratory relief that would interfere with pending state judicial proceedings. Abstention is proper, however, only if the plaintiff has an adequate opportunity to litigate federal claims in the state proceedings. (Middlesex Ethics Comm. v. Garden State Bar Assn. (1982)
In a claim related to his assertion that our summary denial of review would deprive him of a judicial determination regarding the appropriate discipline, petitioner contends that, because the judges of the State Bar Court are appointed periodically by this court (§ 6079.1; rule 961), they lack the judicial independence necessary to render such determinations. Petitioner relies upon Northern Pipeline Co. v. Marathon Pipe Line Co. (1982)
In sum, our denial of a petition for review of a State Bar Court disciplinary decision is a final judicial determination on the merits for purposes of establishing federal jurisdiction and res judicata. Furthermore, the circumstance that we may summarily deny such a petition does not preclude an attorney from having an adequate opportunity to litigate federal claims in this court. Thus, we need not hear oral argument or provide a statement of reasons in order to undertake a judicial determination of the claims asserted in the petition. The procedural scheme for our review of State Bar Court decisions does not invest the State Bar Court with judicial power, nor does it deprive an attorney of the right to an independent determination, by an article VI court, of whether he or she should be disbarred or suspended.
B
We also reject petitioner's contention that article VI confers a right to a written opinion and oral argument when an attorney petitions for review of a State Bar Court decision recommending disbarment or suspension. Article VI, section 14, states in part: "Decisions of the Supreme Court ... that determine causes shall be in writing with reasons stated." Petitioner asserts that, if our denial of a petition for review is a judicial determination on the merits, the denial order deprives an attorney of an important right and thus decides a cause within the meaning of this constitutional provision. Although the term "cause" is not susceptible to precise definition, we conclude that our denial of a petition for review of the State Bar Court's recommendation of disbarment or suspension does not decide a cause within the meaning of this constitutional provision, and that the order denying such a petition need not include a *312 written opinion explaining the reasons for the ruling.
The written-decision requirement first appeared in article VI, section 2 of the California Constitution of 1879, which stated in part: "In the determination of causes, all decisions of the [Supreme] court ... shall be given in writing, and the grounds of the decision shall be stated." This section also divided this court into two departments, each empowered to render decisions. To prevent conflicts of authority from arising between the departments, the provision stated that the Chief Justice could "order any cause pending before the court to be heard and decided by the court in bank." (Ibid.) After the creation of the Courts of Appeal, article VI, section 4 of the Constitution of 1904 similarly authorized this court "to order any cause pending before a district court of appeal to be heard and determined by the supreme court." We subsequently construed the term "cause" as used in the latter provision to include bar admission matters pending in the Court of Appeal.[9]
In In re Wells (1917)
We adhered to this broad construction of the term "cause" in a subsequent admission proceeding that we transferred to this court from the Court of Appeal. (In re Stevens (1925)
The foregoing decisions establish that we broadly have defined the term "cause" in connection with the constitutional provision permitting transfer of matters from the Courts of Appeal to this court, and that we are empowered to transfer "all cases, matters, and proceedings of every description" in order to consider them. (In re Wells, supra,
These examples of matters we have deemed not to be causes within the meaning of the written-decision provision nevertheless are matters that come before the court for determination. Thus, these matters would be considered causes in connection with the provision permitting transfer from the Courts of Appeal. This distinction reflects an effort to construe the term "cause" in conformance with the goals of the constitutional provisions. To ensure uniformity in the law and efficient allocation of judicial resources, the word "cause" is broadly interpreted to permit the greatest flexibility in transferring matters to this court from the lower appellate courts. As explained in Metropolitan Water Dist. v. Adams, supra,
Not only our prior decisions, but past and present practice as well, indicate that we do not consider all attorney admission and disciplinary matters to be causes requiring a written decision. Long ago we ceased issuing written opinions whenever an applicant sought review after failing to pass the bar examination. (In re Admission to Practice Law (1934)
Nothing in the debates regarding the written-decision requirement in article VI, section 2, of the Constitution of 1879 suggests that the term "cause" was intended to extend to attorney admission and disciplinary proceedings. (2 Willis & Stockton Debates and Proceedings, Cal. Const. Convention 1878-1879, pp. 950-951; 3 Debates and Proceedings, supra, pp. 1455-1456.) The generally understood legal meaning of that term also supports thе conclusion that such matters are not causes. The word "cause" is a synonym for "`a proceeding in court, a suit, or action.'" (Hohn v. United States (1998)
A petition for review of a State Bar Court recommendation regarding admission or discipline does not fall within any of these definitions. Like the proceeding in the State Bar Court, it is sui generis the procedures governing ordinary civil and criminal proceedings do not necessarily apply. (See Fitzsimmons v. State Bar (1983)
Furthermore, our determination of attorney disciplinary matters does not implicate our appellate jurisdiction. Witkin characterizes our consideration of State Bar disciplinary recommendations as follows: "This unique proceeding in review differs from an ordinary appeal and from review by writ of certiorari. The court does not affirm, reverse, or annul the judgment or order of a lower tribunal, and the findings of fact of the State Bar Court are not binding. The court examines the entire record, weighs the evidence, and makes an independent determination and order imposing discipline or dismissing the proceeding. [Citations.]" (1 Witkin, Cal. Procedure, supra, Attorneys, § 680, p. 794.)
In other situations in which our summary denial of review necessarily reflects a decision on the merits, we never have suggested that such a ruling decides a "cause," requiring a written opinion. For example, we have recognized that an order denying, without opinion, a petition for writ of review of a PUC decision is a determination on the merits. (Consumers Lobby, supra, 25 Cal.3d at pp. 900-901,
*316 In short, unless we choose to issue a writ of review, an attorney disciplinary matter does not fall within the generally recognized legal meaning of the term "cause." Our resolution of such a matter is an exercise of our inherent judicial power over disciplinary proceedings, and thus our order summarily denying a petition for review of the disciplinary recommendation of the State Bar Court does not determine a cause within the meaning of article VI, section 14, requiring that such determinations be in writing with reasons stated.
Nor does article VI require oral argument, as petitioner maintains. Article VI, section 2, provides in relevant part: "Concurrence of 4 judges present at the argument is necessary for a judgment" by the Supreme Court. Assuming that a ruling denying a petition for review of a State Bar Court decision is a judgment within the meaning of article VI, section 2, we determine that this constitutional provision does not confer a right to oral argument in this context. We recently explained that article VI, section 2, requires the concurrence of four justices "present at the argument" in those circumstances where the court does hear oral argument for example, in conjunction with an appeal or after the issuance of an alternative writ. (Lewis v. Superior Court (1999)
Petitioner contends that even if article VI provides no right to a written decision or oral argument in this context, our summary denial of a petition for review of a State Bar Court disciplinary recommendation conflicts with section 6082's provision that an attorney may have the State Bar Court's action "reviewed by the California Supreme Court or by a California Court of Appeal...." The statute expressly states, however, that the State Bar Court's action may be reviewed "in accordance with the procedure prescribed by the California Supreme Court." (Ibid.) Our procedures do not provide for a written opinion or oral argument in this context. In any event, in light of our previous conclusion that a summary denial of a petition for review of a State Bar Court disciplinary recommendation constitutes a judicial determination on the merits by this court, we reject petitioner's contention. Nothing in section 6082 or in any other provision suggests that the term "review" was intended to include oral argument and a written opinion, as petitioner asserts. Even if we summarily deny a petition for review, we independently examine the findings and conclusions of the State Bar Court in light of the entire record. (See In re Shattuck, supra, 208 Cal. at pp. 8-9,
We conclude that even though our summary denial of a petition for review filed pursuant to rule 952 is a judicial determination on the merits including an independent review of questions of fact and law it is not the decision of a cause within the meaning of article VI, section 14. Therefore, we need not issue a written decision when issuing such a denial order. We further conclude that article VI, section 2, does not confer a right to oral argument in this context.
IV
Petitioner asserts that our summary denial of a petition for review of a State Bar Court decision fails to afford an attorney the procedural due process guaranteed by the United States Constitution, because the attorney receives no indication "that the merits have ever been considered by judicial minds." As we have explained, however, our summary denial of such a petition for review necessarily includes a judicial determination on the merits (rule 954(b)), including an independent evaluation of the facts and the law. Thus, to the extent petitioner's contentiоn rests upon the mistaken assumption that we do not consider the merits of the petition before issuing a ruling, the contention fails.
In any event, the absence of a written opinion and of an opportunity for oral argument does not deprive an attorney of due process of law. The constitutional validity of a procedural scheme depends upon a balancing of the private interest affected by the official action, the government's interest, and the risk of an erroneous deprivation of the private interest, including the probable value, if any, of additional or substitute procedural safeguards and the burdens such safeguards would entail. (Mathews v. Eldridge (1976)
Neither petitioner nor amicus curiae contends that the extensive hearing and review procedures in the State Bar Court (pt. II, ante) fail to satisfy the due process requirements of notice and a meaningful opportunity to be heard. Although providing an opportunity for oral argument in this court and issuance of a written opinion would require this court to allocate more time and resources to reviewing a disciplinary recommendation, these additional procedures would do little to minimize the risk of an erroneous result in such mattеrs. As we repeatedly have emphasized, when an attorney petitions for review of a State Bar Court decision recommending *318 disbarment or suspension, we thoroughly review the attorney's contentions and the entire record, and reach an independent determination whether he or she should be disciplined as recommended. We will order review of the State Bar Court's decision whenever it appears that one or more of the grounds enumerated in rule 954(a) are present. The basis for the State Bar Court's recommended discipline is set forth in detail in the decisions of that court's Hearing Department and Review Department, and we have available for our review the attorney's legal and factual contentions presented in the petition. In the context of attorney admission and discipline where we appropriately rely upon the expertise of the State Bar as our administrative arm, and review its recommendations pursuant to our inherent regulatory power over the practice of law issuance of our own written opinion once we have determined that the petition does not warrant further review would add little.
Even if the additional procedural safeguards of oral argument and a written opinion had value in these circumstances, such procedures would result in an undue burden upon this court. As we recently explained: "[T]his court has been able to reduce considerably its resources devoted to overseeing the [attorney disciplinary] process, and instead has relied upon the professionalism and consistency generated by the revised process, particularly that achieved by the newly created State Bar Court. This court's continued ability to place substantial reliance on a reliable and professional administrative arm with regard to attorney discipline serves the public's interest by enabling the сourt to dedicate more of its finite resources to deciding issues of statewide importance in all areas of the law." (In re Attorney Discipline System, supra, 19 Cal.4th at pp. 610-611,
Federal decisions also support the conclusion that our disciplinary scheme satisfies due process requirements. "California provides [notice, an opportunity to be heard,] and other protections. It allows the lawyer to call witnesses and cross-examine them. [Citation.] At the hearing, the burden is on the state to establish culpability `by convincing proof and to a reasonable certainty'; `all reasonable doubts must be resolved in favor of the accused.' [Citations.] The Califоrnia Supreme Court, in deciding whether to accept the bar's recommendation, grants the bar's findings `great weight' but is not bound by them. [Citation.] It must `independently examine the record, reweigh the evidence and pass on the sufficiency.' [Citation.]... [¶] The State of California provides attorneys subject to discipline *319 with more than constitutionally sufficient procedural due process." (Rosenthal v. Justices of the S.Ct. of California (9th Cir.1990)
Moreover, the contention that we must issue a written opinion to ensure due process of law has been rejected expressly. In Giannini v. Real (9th Cir.1990)
We conclude, after analyzing and balancing the relevant factors, that the due process clause does not require that we hear oral argument or issue a written opinion before denying an attorney's petition for review of a State Bar Court decision recommending disbarment or suspension.
V
Our order to show cause directed petitioner and the State Bar to address the criteria the court may employ in determining whether to grant a petition for review of a State Bar Court decision recommending disbarment or suspension. The State Bar asserts that in the vast majority of cases, issues warranting review are likely to fall within the categories set forth in rule 954(a). As explained previously, rule 954(a) provides that we will order review of such a decision "when it appears (1) necessary to settle important questions of law; (2) the State Bar Court has acted without or in excess of jurisdiction; (3) petitioner did not receive a fair hearing; (4) the decision is not supported by the weight of the evidence; or (5) the recommended discipline is not appropriate in light of the record as a whole." According to the State Bar, in extraordinary circumstances where an issue warranting review does not meet the criteria specified in the rule, we may exercise our inherent authority to review such a question. (See rule 951(g) ["Nothing in these rules shall be construed as affecting the power of the Supreme Court to exercise its inherent jurisdiction over the lawyer discipline and admissions system."].)
Consistent with his contention that we must grant review whenever the State Bar Court recommends disbarment or suspension, petitioner contends that we must review all questions of law, all mixed questions of law and fact, and if the attorney objects to the Hearing Department's factual findings all questions of fact. Petitioner further suggests that we may limit review to issues properly raised in the State Bar Court Review Department, and that we may condition review upon the petitioner's willingness to participate in a judicial settlement conference.
We agree with the State Bar's position that the criteria set forth in rule 954(a) are sufficiently broad to encompass virtually any circumstance in which the issuance of a writ of review would be necessary or appropriate. Furthermore, as the State Bar observes, we retain inherent authority to grant review in any disciplinary matter, notwithstanding the criteria set forth in the rule. In the immediately preceding portion of this opinion, we have rejected petitioner's contention that we must issue a writ of review whenever an attorney *320 seeks review of the State Bar's disciplinary recommendation. As explained above, however, before we summarily deny such a petition for review, we undertake an independent assessment of all questions of law, mixed questions of law and fact, and disputed questions of fact. Regarding petitioner's suggestion that any issue presented for our review first be raised in the State Bar Court Review Department, rule 952(e) already requires that such a petition show that review within the State Bar Court has been exhausted. We have no procedures, and discern no need, for judicial settlement conferences in attorney disciplinary proceedings.
Amicus curiae asserts that we should grant review of all petitions that "provide reasonable documentation to support a prima facie claim" of a due process violation, biased State Bar Court judges, excessive discipline, or violations of published decisions, statutes, and rules. Amicus curiae further contends that, in deciding whether to grant review, we should not evaluate "the quality of the claim" presented in the petition. As discussed above, rule 954(a) already provides that we will review disciplinary proceedings conducted in violation of the law, or which result in recommended discipline that is inappropriate under the circumstances. We reject the further suggestion that we must issue a writ of review whenever an attorney asserts a nonfrivolous claim and alleges facts that, if true, might warrant a reduction in the recommended discipline. Even if an attorney raises an important question of law or presents a prima facie claim of legal or factual error, we properly may deny review if our independent examination of the record and evaluation of the attorney's factual and legal assertions establish that the recommended discipline should be imposed.
VI
Our order to show cause indicated that no issue raised in the petition for review warrants consideration under rule 954(a). No constitutional principle or other legal requirement compels us, notwithstanding that determination, to issue a writ of review, hear oral argument, or render a written opinion. Accordingly, the order to show cause is discharged.[12]
BAXTER, J., WERDEGAR, J., and CHIN, J., concur.
Concurring Opinion by MOSK, J.
I concur in the result.
I do so because I am of the view that the California Constitution's grant to us of "plenary" power (In re Lacey (1938)
Dissenting Opinion by KENNARD, J.
The majority holds that this court need not hear argument or issue a written opinion when it suspends or revokes an attorney's license to practice law. I disagree.
Under the California Constitution, this court may not render a judgment unless it has given the parties a chance to argue their case to the members of this court. (Cal. Const., art. VI, § 2.) The state Constitution also requires that this court issue a written opinion giving reasons for any decision that determines a "cause[ ]." (Id., art. VI, § 14.) Unlike the majority, I conclude that because an order of this court suspending or disbarring an *321 attorney is a judgment, and because such an order determines a cause, our Constitution requires that this court hear argument and issue a written opinion before entering an attorney suspension or disbarment order.
The majority's decision here produces a startling anomaly: Attorneys are the only persons whose state occupational licenses can be revoked or suspended without a judicial hearing. When the right to continue practicing a trade or profession is аt stake, only attorneys are denied their day in court. I would avoid this anomaly by recognizing that the state Constitution's guarantees of oral argument and a written opinion apply in attorney suspension and disbarment proceedings.
I. ORAL ARGUMENT
The California Constitution provides that in the California Supreme Court "[concurrence of 4 judges present at the argument is necessary for a judgment" (Cal. Const., art. VI, § 2, italics added) and that in a Court of Appeal "[concurrence of 2 judges present at the argument is necessary for a judgment" (id., art. VI, § 3, italics added). As I explained in a case this court decided last year, the latter provision confers a right to oral argument, which a litigant may waive, before a Court of Appeal renders a judgment. (Lewis v. Superior Court (1999)
"A judgment is the final determination of the rights of the parties in an action or proceeding." (Code Civ. Proc, § 577.) As the majority concedes, "this court has exclusive original jurisdiction to discipline attorneys" and an attorney suspension and disbarment order "amounts to an exercise of our jurisdiction and a judicial determination on the merits." (Maj. opn., ante, 93 Cal.Rptr.2d at pp. 309-310, 993 P.2d at pp. 966-967.) Thus, an attorney discipline proceeding is a judicial proceeding, and an order of this court suspending or revoking an attorney's license to practice is a judgment because it is the final determination of the attorney's rights in that proceeding.
To summarize: The state Constitution grants litigants a right to oral argument before this court renders a judgment, and an attorney suspension or disbarment order is a judgment rendered by this court; therefore, an attorney has a right under the state Constitution to oral argument before this court suspends or disbars the attorney.
II. WRITTEN OPINION
The California Constitution provides that "[decisions of the Supreme Court and *322 courts of appeal that determine causes shall be in writing with reasons stated." (Cal. Const., art. VI, § 14.) Is an attorney discipline proceeding a "cause[ ]" that is "determine[d]" by an order of suspension or disbarment? If it is, then a decision of this court to grant such an order must be explained in a written opinion.
The majority acknowledges that "cause" means "`"a proceeding in court, a suit or action,"'" but it denies that an attorney discipline proceeding resulting in suspension or disbarment falls within this definition because, the majority insists, these proceedings are sui generis. (Maj. opn., ante,
Deciding that an attorney discipline proceeding falls within the general definition of a cause does not end the inquiry. In interpreting the state Constitution's written opinion provision, this court has held that certain rulings of appellate courts in judicial proceedings do not "determine causes" within the meaning of that provision. (Cal. Const., art. VI, § 14.) Thus, a written opinion is not required before an appellate court grants or denies a petition for rehearing (Metropolitan Water Dist. v. Adams (1942)
Our decisions in this area indicate that a ruling in a judicial proceeding determines a cause for purposes of the written opinion requirement if it is a final rather than an interim ruling and if it produces an enforceable determination of the parties' rights.
Interim rulings do not trigger the written opinion requirement. An appellate court need not issue a written opinion when granting a writ of review, an alternative writ, an order to show cause, or a petition for rehearing, because none of these rulings terminate the proceeding or determine the parties' rights. Rather, in the ordinary course of events, each of these rulings is an intermediate step to be followed by oral argument and a final decision on the merits. It is only at the final stage, when the court enters an order or judgment that determines the parties' rights, that a written opinion is required.
There is another group of rulings that have the effect of terminating a judicial proceeding in an appellate court but nonetheless do not trigger the written opinion requirement. In this category are rulings denying rehearing, dismissing an appeal, or declining to issue a writ of review, alternative writ, or order to show cause. In each instance, the ruling indicates a decision by the appellate court not to intervene and not to disturb an existing order or judgment that is itself enforceable. Thus, when an appellate court denies rehearing following a decision on appeal, the court has decided not to disturb its own previous decision, which it has already explained in a written opinion. In the other instances, such as an order of this court denying review of a Court of Appeal's decision on appeal, the order is not itself enforceable as a judgment; it merely permits enforcement of an order or judgment of another court or administrative agency. This is so even when the appellate court's ruling declining review necessarily reflects *323 a decision on the merits. (See Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd., supra,
Although the majority insists there is "no legal basis" (maj. opn., ante,
In this respect, this court's decisions in attorney suspension and disbarment matters are similar to, and in my view functionally indistinguishable from, decisions granting a peremptory writ of mandate in the first instance. In mandate proceedings, a court's decision not to grant an alternative writ or an order to show cause does not excuse the court from its obligation to explain its reasons in writing when it grants a peremptory writ that is an enforceable judgment determining the parties' rights. (See Raima v. U.S. Industrial Fasteners, Inc. (1984)
The majority cannot have it both ways. The majority insists that this court has not improperly delegated attorney discipline to the State Bar Court, and that this court's suspension and disbarment orders are the product of this court's exercise of its own original jurisdiction and this court's own judicial determination of the merits of the disciplinary proceeding. Yet the majority denies that in so determining the merits of a disciplinary proceeding this court renders a decision that dеtermines a cause within the meaning of the state Constitution's written opinion requirement. These positions seem utterly irreconcilable. The majority is correct in concluding that attorney suspension and disbarment orders result from this court's judicial determination of the merits of attorney discipline proceedings. But, unlike the majority, I would accept what follows logically and unavoidably from this conclusion: Decisions in attorney suspension and disbarment matters determine causes and therefore must be in writing with reasons stated.
III. CONCLUSION
The state government grants individuals licenses to practice a variety of trades and professions, including those of attorney, doctor, dentist, veterinarian, real estate broker, contractor, motor vehicle dealer, and cosmetologist. In general, proceedings to suspend or revoke these occupational licenses occur before administrative tribunals and result in administrative orders that the licensee may challenge by a proceeding in superior court for administrative mandate. (Code Civ. Proc, § 1094.5.) In that superior court mandate proceeding, the licensee has the right to a hearing and, upon request, to a written decision. (Id., §§ 632, 1094.5.)
But attorneys do not have recourse to administrative mandate proceedings because their licenses are suspended or revoked not by an administrative determination, but by this court's orders. As a *324 consequence, under the majority's decision today, only attorneys can have their licenses suspended or revoked without a judicial hearing and a written judicial decision. This disparate treatment of attorneys raises serious due process and equal protection questions. I do not address these issues, however, because I conclude that the state Constitution's oral argument and written opinion provisions apply to attorney suspension and disbarment proceedings.
The majority asserts that this court can no longer spаre the time and resources required to hold oral argument and write an opinion in every attorney suspension and disbarment proceeding. (Maj. opn., ante, 93 Cal.Rptr.2d at pp. 317-318, 993 P.2d at pp. 974-975.) Even if the majority is correct, as it may be, the proper solution is not an expedient but unreasonable construction of the state Constitution to deny attorneys the privileges granted to holders of all other occupational licenses. The Legislature has already given this court a better solution. In 1988, the Legislature amended Business and Professions Code section 6082 to permit review of an attorney discipline recommendation "by the California Supreme Court or by a California Court of Appeal in accordance with the procedure prescribed by the California Supreme Court." (Italics added.) Under the statute as amended, this court need only establish a suitable procedure, and the burden of giving disciplined attorneys their day in court can be broadly distributed among the Courts of Appeal. At current levels attorneys sought review in roughly 40 suspension and disbarment matters in 1990 (see maj. opn., ante, at p. 317,
In this matter, I would issue a writ of review, hear argument, and render a written opinion.
Dissenting Opinion by BROWN, J.
Reluctantly, even ambivalently, I dissent. They say hard cases make bad law; the result here, however, is foreordained: the majority reaches the only provident conclusion possible in the current circumstances. But it is also true that, underlying its reasoning and result, one has to wonder at the practical value of what this court does under the procedures now prevailing in bar discipline cases. As the court itself has acknowledged only recently, changеs in our own rules made in the wake of legislative amendments to the administrative procedures governing bar discipline proceedings "relieve the court of the burden of intense scrutiny of all disciplinary recommendations." (Cal. Supreme Ct., Invitation to Comment Proposed Adoption of Rule 951.5, Cal. Rules of Court (Nov. 23, 1999) p. 2; see also Cal. Supreme Ct., Practices and Proc. (1997 rev.) pp. 3, 18-19, 25-26.) Moreover, the matrix of grantable issues identified in California Rules of Court, rule 954[2] appears to truncate the scope of our review. And in cases where no writ is sought, we usually content ourselves with less than that measure of "review." Unless, by dint of skill or luck, the issues are framed so they are deemed to fall within the ambit of rule 954, an attorney facing suspension or disbarment from the right to practice her profession gets no hearing, no opportunity for oral argument, and no written statement of reasons from this or any other article VI court. (Cal. Const., art. VI, § 14; hereafter article VI.) Instead, she gets a summary denial of review, the one-line order. Is that enough? Regrettably, it seems that, for now at least, it will have to do.
*325 We should not, however, pretend the current legal order does not mark a transformation in the attorney discipline process, one in which a constitutional touchstone meaningful judicial review by an article VI court has been jettisoned. A decade ago, Justice Kaufman could trouble to write a vigorous dissent from an opinion of this court upholding summary administrative suspension of a lawyer under emergency circumstances. (Conway v. State Bar (1989)
The contemporary anomaly is that that history has produced less in the way of judicial protection than our statutes give to, say, veterinarians and cosmetologists. Some of the circumstances that have contributed to that anomaly - the enormous growth of the legal profession in California and the consequent need for an elaborate disciplinary apparatus, for example - are matters lying beyond the control of this or any other court. Others, however - the threat posed by a growing legislative involvement in attorney discipline, the related bureaucratization of the disciplinary process we conceivably might have mitigated. (See, e.g., Bus. & Prof.Code, § 6082 [jurisdiction to review attorney discipline lies in this court and the Court of Appeal].) As matters stand, and as the majority opinion attests, it is force of circumstance that obliges us to make our peace with the new legal order. The majority goes about that task studiously, employing the archaic lexicon of a bygone day to describe the new and different contemporary reality.
That new reality what a pessimist might describe as the untoward merger of two branches of government in the regulation of attorneys is especially worrisome as a matter of state constitutional law. For that reason also, it transcends parochial issues of professional discipline. Unlike Congress, by the text of the federal Constitution the legislature of a sovereign of limited powers, state legislatures possess plenary lawmaking powers. That is why structural principles of republicanism common to both state and federal governments the tripartite division into legislative, executive and judicial branches assume even greater significance where state government is concerned. What petitioner really objects to is the absence of any indication that, despite the elaborate administrative hoops through which attorneys facing discipline must jump, a court of law, a constitutionally founded judicial body, has considered the lawyer's claims on the merits before pronouncing judgment. It is not simply that judicial review ensures compliance with statutory commands. It does more, helping to sustain a complex of social values, maintaining a structural balance among the parts of government and, by its existence and vigorous exercise, protecting individual liberty.
What petitioner can legitimately ask from us is not procedural due process. Surely, the elaborate procedures provided attorneys subjected to the State Bar's disciplinary apparatus are sufficient to satisfy that concern. (See generally Rules Proc. of State Bar.) His complaint goes to a different flaw altogether. It is *326 founded on the rock of the constitutional right to meaningful judicial review of government acts intended to deprive someone of the means of livelihood. Review by a constitutional court, review by real judges whose allegiance is to the judiciary, to its standards and ideals to the rule, in short, of law. Review, moreover, that is seen, observed in the form of reasoned judicial opinions, and in the ritual of oral argument. In combination, these features make up hallowed ground, for they comprise a signal feature of our democracy the protection of the individual from executive and legislative overreaching by neutral magistrates, magistrates whose decisions are constrained by objective principles of judicial reasoning and by precedent, and whose rulings are an open book. (See Bickel, The Morality of Consent (1975) p. 26 ["Confined to a profession, the explication of [legal] principle is disciplined, imposing standards of analytical candor, rigor, and clarity."].) Lacking, as Alexander Hamilton wrote, "either the sword or the purse," the judiciary exists by virtue of "merely judgment." (Hamilton, The Federalist No. 78 (Rossiter ed.1961) p. 465; see also Scalia, The Rule of Law as a Law of Rules (1989) 56 U. Chi. L.Rev. 1175.) That is the essence of the judicial function; that is what is missing in this sui generis special proceeding over which we exercise an inherent authority. (See, maj.opn., ante, passim.)
Judicial judgment reasoned decisions, rather than decisions with reasons is the constitutional counter to the appetitive coordinate branches of government, implicit in the architecture of state as well as federal government. We expect, and justifiably so, a different discipline from a court than from a bureaucracy. And because the powers of state government are not textually limited, a close adherence to the principles of the separation of powers becomes all the more critical to constitutional government. Courts must be especially vigilant, must vigorously resist encroachments that heighten the potential for arbitrary government action. The existence of the administrative state is a legislative admission of an inability to articulate general rules governing conduct. If legislative delegation enlarges the scope of administrative action, it enlarges the scope for arbitrariness as well. When the judiciary cedes its authority to a bureaucracy, when it permits the Legislature to determine the scope of judicial review, the potential for arbitrary government action rises exponentially.
Nothing so well illustrates the through-the-looking-glass quality of the majority's reasoning as its rejection of petitioner's clаim that his case qualifies as a "cause" under article VI and must be decided "in writing with reasons stated." The majority's reasoning is fine, as far as it goes. It omits, however, an observation that ought to be decisive this court is the only judicial body involved in the attorney discipline process. An attorney's petition for review to this court marks the first and only time in the disciplinary process that article VI judges are asked to enter the case. For that reason, and for that reason alone, our decision, even if it is a summary denial of review, necessarily decides a cause. The majority makes an able attempt to paper over this reality, but in doing so it is compelled to adopt an empty formalism.
The reality is that, as the legal cartel of the past disintegrates, as the demand for legal services continues to surge, the profession has lost its guild-like character and become more like other occupations. (Cf. Posner, Overcoming Law (1995) pp. 63-70; Kronman, The Lost Lawyer (1993) pp. 273-306.) This trend toward occupational homogeneity is reflected in the elaborate administrative apparatus for attorney discipline. But, and again paradoxically, dynamic professional growth has produced contradictions, contradictions that are not lost on attorneys who defend lawyers facing disciplinary charges. By letter brief, an organization of State Bar defense counsel *327 the Attorney Discipline Defense Counsel points out that vocational licensees enjoy greater judicial rights than lawyers. And they are right. The host of practitioners of this and that trade, licensed and regulated by government agencies, has access to administrative mandamus in discipline cases, where judges of article VI courts review questions of law de novo and questions of fact under the substantial evidence standard. They get both a full plate of administrative due process and real judicial review. Before honest-to-God judges. (See Code Civ. Proc., § 1094.5.)
That is the way attorney discipline cases used to be decided, in the old days, before the 1988 amendments to the State Bar Act. True, one of the effects of the prior order was the obligation of this court to carry on its docket and decide almost always after oral argument, always by written opinion at least 20 State Bar disciplinary cases each term. The substantiality of that largely fact-intensive task cannot be gainsaid. But the principled answer to that difficulty, if difficulty it was, is not to fold the attorney discipline system into the ceaselessly expanding administrative state, with the remark that our summary denial of review qualifies as review on the merits because it's ... well, sui generis.
Alas, attorneys faced with the loss of their livelihoods must now make do with the State Bar Court an entity performing judicial functions but, despite the competence of its members, exercising no judicial powers and our summary denials, unless the petition can be said to satisfy the criteria of rule 954. Yet the majority continues to pay lip service to the old regime, even using the same words and citing the same cases to paste over a hollowing out of meaningful judicial review. We have tinkered with our rules so that it appears nothing has changed. But these are only words; the reality is different. In point of practice, in bar disciplinary cases in which we decline to grant review, we issue a pro forma order executing the State Bar Court's "recommended" discipline. (See rule 954(a).) In those cases where review is not sought, it is questionable whether any judicial act of substance takes place. Oh, to be sure, our rules purport to alleviate these concerns. Rule 953, for example, provides for entry of orders by this court, even if ministerial, rather than adopting the legislative model that makes the State Bar Court's recommendations self-executing. (Compare rule 953(b) with Bus. & Prof.Code, § 6084, subd. (a).) Still, we no longer make an individual decision on the imposition of discipline. And the situation is not much improved if review is sought and denied; the rule gives us no choice but to impose the recommended discipline. (Rule 954(b).)
At the heart of the majority opinion is the supposition that review by any other name is still review and passes constitutional muster; that due process is satisfied by any process, however much the decision makers may be driven by bureaucratic agendas or political ties. In this corner of the law, at least, we seem to be presiding over a union of the legislative and judicial components of government. It may be efficient; it certainly isn't pretty. And because it seems antithetical to the constitutional design, I dissent.
NOTES
[1] Attorney Jerome Berg, as amicus curiae, has asserted similar contentions in support of petitioner's position.
[2] Further undesignated statutory references are to the Business and Professions Code.
Notes
[3] Further undesignated rule references are to the California Rules of Court.
[4] Article VI, section 1, states: "The judicial power of this State is vested in the Supreme Court, courts of appeal, superior courts, and municipal courts. All courts are courts of record."
[5] As we shall discuss (pt. IV, post), procedures governing attorney disciplinary proceedings satisfy the requirements of the due process clause.
[6] Section 6082 refers to review of actions of the State Bar's board of governors. Section 6086.5 clarifies that the term "board" as used in section 6082 includes the State Bar Court.
[7] A State Bar decision ordering the involuntary inactive enrollment of an attorney in exigent circumstances (§ 6007, subd. (c)) may become effective before we consider the matter, but only because the order is subject to our immediate, independent review. (Conway v. State Bar (1989)
[8] Amicus curiae contends that cases concerning review of PUC decisions, such as Consumers Lobby, supra,
[9] Former sections 276 and 277 of the Code of Civil Procedure authorized the Courts of Appeal to admit applicants to the practice of law. (Stats.1905, ch. 8, §§ 1, 2, pp. 5-6.)
[10] See also Metropolitan Water Dist. v. Adams, supra,
[11] The dissenting opinion of Justice Kennard (post, 93 Cal.Rptr.2d p. 322, 993 P.2d p. 978) distinguishes these decisions on the ground that an appellate court denying a petition for writ of review of such an administrative decision "merely permits enforcement of an order of ... [an] administrative agency," whereas only this court renders orders imposing attorney discipline. In both situations, however, the court exercises original jurisdiction (see art. VI, § 10), renders the first and only decision on the merits in a judicial proceeding, and makes a final judicial determination of the rights of the parties. (Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd., supra, 24 Cal.3d at pp. 349-351,
In response to the assertion that attorneys are the only individuals whose state occupational licenses can be revoked or suspended without "their day in court" and a "judicial hearing" (dis. opn. of Kennard, J., post, pp. 320, 324, 993 P.2d pp. 976, 980), or without "genuine" and "real" judicial review (dis. opn. of Brown, J., post, pp. 980, 983, 993 P.2d pp. 324, 327), we observe that attorneys are the only professional licensees who, as a matter of right in every case, can obtain judicial review on the merits by the highest appellate court in the state, before their license can be revoked or suspended. As explained previously (ante, pp. 307-311, 993 P.2d pp. 964-968), both this court and the United States Supreme Court have concluded that the absence of a written opinion or an opportunity for oral argument in this context neither affects the quality of our decisions nor detracts from their efficacy as judgments.
[12] By separate order, we shall deny the petition for review and impose the discipline recommended by the State Bar Court.
[1] In Lewis v. Superior Court, supra,
[2] Hereafter all rule references are to the California Rules of Court.