*1 Aug. S060702. 1999.] [No. WARDEN,
LEW Plaintiff Appellant, al., BAR OF et Defendants and THE STATE CALIFORNIA Respondents. *4 Counsel Warden, for Plaintiff per., Appellant.
Lew pro. *5 D. as Curiae behalf of Plaintiff and Greenberg Appellant. Mark Amicus III, and G. Matias for Institute for H. Mellor Clint Bolick Donna William and as Curiae on behalf of Plaintiff Appellant. Justice Amicus Plaintiff and R. as on behalf of Appellant. Barnett Amicus Curiae Stephen Yee, Babcock, Yu, C. Robert M. Colin P. Lawrence Wong, Diane C. Starr Sweet, Moffat; M. Mark & James Wagstaffe, Marie White Cooper, Cooper, and Respondents. Tuft and I. Dilworth for Defendants L. Andrew Schwartz; Freidman, Schwartz, Ross & Amitai Offices of Amitai Law Berzon, Nussbaum, Ross; Schiff; Altshuler, Hersh, Berzon Joel S. D. Jeffrey Loftus, Jr., Rubin, Altshuler; and Richard J. Littler Mendelson & Fred H. Francisco, Association County Santa Bar of San Clara the Bar Association Defendants Amici on behalf of Bar Association as Curiae and Hills Beverly and Respondents. Kronstadt, Kronstadt; A. Austin
Blanc Williams Johnston & John & Sidley Association, and Catherine Barrad for Los Bar San Angeles Valerio County Association, Association, San Fernando Bar Diego County Bar Valley Association, Bar Bar Association and Women Orange County Sacramento Amici Association of Los Curiae on behalf of Defend- Lawyers Angeles ants and Respondents.
Opinion Warden, GEORGE, C. J. this Lew attorney proceeding, plaintiff In the (State Bar), member of State Bar of California Bar or the challenges (or of minimum) constitutional this state’s validity mandatory continuing (MCLE) education legal established to statute and court program, pursuant claims, rule and the administered State Bar. other Among plaintiff that contends the current MCLE violates his program right equal laws, because a number protection categories licensed currently attorneys—retired officers elected officials of the State California, and full-time law at accredited law schools—are professors the from MCLE exempt requirements. court trial sum- rejected plaintiff’s constitutional claims granted
mary (the favor of defendants Bar judgment number its On employees). Court reversed the appeal, conclud- Appeal judgment, that ing from the MCLE challenged exemptions arbitrary program and irrational and thus invalid under “rational even equal relationship” standard Court found setting. Appeal applicable Further, the in the Court of majority opinion Appeal, view expressing two went on conclude that the justices, remedy proper equal had protection violation it found of the MCLE was invalidation in its entirety. The third Court of while with Appeal justice, agreeing flawed, that the constitutionally were concluded *6 the remedy for the was to equal violation eliminate appropriate protection the invalidated only the MCLE and exemptions, thereby program preserving its of as extending requirements formerly exempt categories attorneys well as all to nonexempt attorneys. (1)
We the State Bar’s to the granted review consider whether petition MCLE or violates federal state program equal by protection principles the of from the MCLE exempting categories attorneys require- specified ments, so, if the should be. remedy what appropriate
634 that, hereafter, the or
As conclude wisdom of some although explained a as may all of the from MCLE program questioned exemptions not be found unconstitu- challenged matter of policy, exemptions a protection tional under of understanding applicable equal proper decisions of both the United States standard established governing determination, this In this there is no need light Court and court. of Supreme to be to reach the were the question remedy appropriate unconstitutional.
I in California—a consumer measure MCLE program of in this “intended to enhance competency practicing 30, 456, state” 14 Cal.4th P.2d (People Ngo Cal.Rptr.2d action, rule, 97])—is a of court and State Bar regulat product legislative Code In enacted Business Professions Legislature ions.1 to court a the State Bar this to adopt section which required request rule court the Bar to establish and administer an MCLE authorizing of Code, 6070, (Bus. (a).)2 Prof. subd. The statute specified & program. § the rule that the State Bar was concerning request, number details a member of the Bar who failed satisfy including provision thus be MCLE would be enrolled as inactive member and requirements until met. unauthorized law in state these were practice (Ibid.) (c)—that
Section 6070 also includes subdivision—subdivision separate statute, from the reach categories provid- certain exempts of Califor- “retired officers elected officials the State ing that nia, the State Bar of . at law schools accredited by . . full-time professors Association, both, California, . . . the American Bar [and] [f]ull-time states adopted was in December 1At the time the California MCLE California, states, four in addition already adopted programs. had MCLE Since more Assn., (See Comparison of the Features of N.Y. Bar adopted programs. MCLE 4-8 Legal July pp. in Effect as of Mandatory Continuing Education Rules 1998); Regs., tit. (hereafter Comp. R. & Comparison July Rules as of N.Y. Codes York.) Attorneys Continuing Legal Program for New Mandatory Education § effective December adopted program, to have an MCLE New is the most recent state York Pfau, Attorneys: Ensuring the Tradition CLE New York (See 1998. Professionalism states, (Jan. 1999) through a rule most MCLE has been established 71 N.Y. St. BJ. In July (See as of Comparison MCLE Rules adopted by supreme the state court. 4-8.) pp. indicated, statutory are to the all references Business 2Unless otherwise further *7 Code. Professions California, of the State within the their of of employees acting scope shall the be from this section.”3 employment, provisions exempt Bar this court the the State Following passage section requested comment, this court an MCLE rule. After considering adopt public Court, California rule of the December Rules of effective adopted That rule the Bar to and administer MCLE 1990. State establish requires 1, 1991, “under rules the Board of by program, beginning January adopted the a number Governors of State Bar.” Rule like section specifies from of details to the MCLE and some relating program, exempts 958, (1) the MCLE Under rule under section requirements. exempt (2) full-time federal within the of their employees, acting scope under rules the Board of employment, attorneys “exempt adopted by the Governors of State Bar” to the MCLE subject requirements the mandated rule.4 by “(a) provides request 3Section The Supreme in full: State Bar shall the California adopt authorizing Court to rule of the court State Bar establish and administer a mandatory continuing legal program. requests education that the State the rule Bar that, Supreme adopt require designated periods, Court to shall within 36-month all active complete legal members of the State Bar shall at least 36 hours education activities approved by by eight the State Bar approved provider, or offered State Bar with of those legal management, legal
hours in or practice ethics of which shall ethics. If four hours Supreme the authorizing California Court a rule the State adopts Bar to establish and program, mandatory administer the the shall continuing State Bar establish and administer a legal program commencing January education on or after the 1991. A member of State Bar satisfy mandatory continuing legal who fails to the requirements education by Supreme authorized pursuant Court rule shall be enrolled as an inactive member adopted rules by Board of of the Governors State Bar. “(b) section, purposes agencies For of this public incorpo- statewide associations rated, nonprofit professional attorneys, approved associations of be certified as shall State Bar providers completion upon application by of an appropriate process to be established the State board, may only by Bar. The certification be revoked of the notice and vote after hearing, good Programs provided Attorneys and for cause by shown. California District Association, both, Association or including, the California Public Defenders or not limited but to, programs 11500) provided pursuant 1.5 (commencing to Title with Section of Part 4 of the Code, Penal legal by are deemed to be education approved activities the State Bar or offered by a approved provider. State Bar “(c) Notwithstanding (a), provisions subdivision and elected retired officers California, officials by of the State of full-time professors law schools accredited California, Association, both, State Bar of exempt American Bar shall be from the or California, provisions acting employees of this section. Full-time within the State scope employment, exempt of their provisions Nothing shall be from the of this section. California, thereof, prohibit any section shall the State of from political or subdivision establishing maintaining continuing employees.” its own education its currently 4Rule of the California Court provides Rules of in full: “(a) adopted This rule is under 6070 of the Business and Code. section Professions “(b) The Bar shall continuing legal State establish administer a minimum education 1, 1991, beginning January program, or after rules Board of adopted under carrying] provide Governors of the Bar. These rules forward of excess credit *8 Court, Rules of rule with the of California Contemporaneously adoption 958, the of the a detailed of rules Board of Governors State Bar set adopted (See and to the of the State govern MCLE regulations operation program. 1.0-17.0, Bar Rules & the Bd. of Legal Min. Cont. Ed. Regs., adopted by §§ of the State Bar on and amended Governors Dec. Sept. out (hereafter State Bar MCLE Rules and The set Regulations).) regulations the the five from MCLE categories requirements pur- prescribed exempted (2) to and 958—(1) suant 6070 and rule retired officers section California, (3) elected at accred- officials of State of full-time professors schools, California, (5) full-time ited law of the of State employees full-time federal that the last refer to provide categories two employees—and not “who do law California as public practice except employ- employees . ees of the State of California . . of the United States Government [or] addition, 6.1.4, 6.1.5.) In (State . . . .” Bar MCLE Rules & Regs., §§ include a “Good From or regulations Exemption Cause provision—entitled Bar Modification of authorizes member the State Requirement”—that any from to “submit an forth cause for application setting good exemption with or modification of of the includ- requirements, compliance any [MCLE] an extension of time for in accordance with a ing compliance, procedure on be established the Committee Minimum Education.” by Continuing Legal (State 6.3.)5 MCLE & Bar Rules Regs., § hours, staggering requirement implementation purposes, of the education for and retroactive legal by by approved for Bar or a State approved credit education State offered Bar prior program. effective provider completed date of “(c) exempt Each active member of the State Bar under Business and Profession Government, 6070, (2) States its employee Code section not a full-time United departments, agencies, corporations, acting scope employ- within the of his or her public ment, by under of the exempt adopted not otherwise rules the Board Governors Bar, Bar, shall, by the at least 36 periods designated complete State within 36-month State by by Bar-approved a State legal approved hours of education State Bar or offered management. Eight legal practice address ethics or One provider. of those hours shall instead, eight may, by legal and criminal remedies hours be satisfied education the civil However, rights shall no less than four of the complete available civil violations. members legal in other eight legal required complete ethics. Members education hours in Each requirement under rules the State Bar. specified adopted areas within 36-hour by the compliance adopted her the State Bar under rules report active member shall his or of the
Board Governors State Bar. “(d) satisfy the Bar’s of the Bar who the State A member State fails legal an inactive member of the continuing minimum education shall be enrolled as Bar. adopted by Bar the Board of the State State under rules of Governors “(e) authority penalties.” collect fees and appropriate The Bar shall have the to set and 5Following the Regulations, Bar of adoption of the MCLE Rules and the State State Bar’s guidelines Continuing Legal adopted Education set of California’s Committee Minimum (See Regulations. Guidelines: MCLE “advisory interpretations” as of the MCLE Rules Guidelines).) (MCLE Regs. Rules & n guidelines, a exemptions. on a Under the Guidelines elaborate number judge is one has served judge, purposes exemption, retired of the MCLE who
II *9 Court, 958, an Under the of rule Rules of plaintiff, California provisions Bar, to with the obligated comply enrolled member of the State was actively however, He that he did not do so. On April MCLE program. acknowledges, Bar, 23, 1993, (State MCLE Rules & the to its Bar pursuant regulations Notice,” 13.2), a advising plaintiff sent Regs., plaintiff “Non-Compliance § the MCLE and requirements what he was to do to with required comply notification to him that he had 60 from the date of the informing days with the the informed that he would be requirements; notice comply plaintiff enrolled as an member if he not submit by inactive did proof compliance notice, 29, him June June the a 1993. On Bar sent final plaintiff advising that his name would submitted to Board of Governors on July that, 19, 1993, with a recommendation he be enrolled as July effective of the inactive member Bar until he with the MCLE complied require- ments. 9, 1993,
On wrote the MCLE July plaintiff to coordinator of compliance Bar, the State that the MCLE unconstitutional and asserting program was that he could not be from law for prohibited refusing practicing comply with its On assistant a senior administrative of the requirements. July letter, Bar’s unit legal which had been acknowledged receipt plaintiff’s forwarded the Bar’s Office of General Counsel for On by July response. status, the Bar sent a notice of enrollment on administrative inactive plaintiff him that effective he informing was July ineligible practice in California until the Bar received his with the proof compliance MCLE applicable requirements. bench, court of jurisdiction, record in California or another has retired from the is either
immediately qualified to pension receive or benefits or is in such retirement vested benefits Guidelines, (MCLE 6.1.1.) is entitled to receive them in the professor, future. A law for § school, purposes exemption, of the MCLE is a full-time teacher at an accredited law regardless (Id., given by 6.1.3.) title of the academic the law school. § respect exemption attorneys With to the who are federal employees, full-time state or provide attorneys MCLE Guidelines that are exempt requirements such from the MCLE “only if the legal by attorneys employment. sole work done the scope within of their If any legal these engage activity scope employment, including outside the of their pro bono legal attorney family, work or work for the immediate personally, close friends or the attorney by the . comply is not covered . . and must the full MCLE with Guidelines, 6.1.5, (MCLE 6.1.4, requirements.” italics.) original recently, More the treat- §§ by ment of pro by adoption bono activities such been modified has section Regulations, February 6.1.6 of the MCLE provides State Bar Rules & which that “[effective 1, 1997, exempt continuing legal members otherwise from the education [i.e., pursuant may provide to sections 6.1.4 and 6.1.5 state and federal employees] full-time pro legal legal through qualified support bono center . . project services services or . provided pro that sponsor project support bono center ensures members volunteering necessary training pursuant this section have received or otherwise possess necessary provide quality professional skills to service and maintain standards.” 23, 1993, been On the notice he had September plaintiff responded Bar, enrolled inactive his expressing as an member letter State to sue the with MCLE “profound disagreement” threatening did Bar its if it not “forthwith recall employees damages [its] 7, 1993, order.” On filed with the Bar October suspension plaintiff that, he as a of its “Claim which asserted result enrollment Damage,” him as an inactive member for with the requirements, noncompliance $6,000 the State Bar was liable to him in the amount of month for lost per On income and an amount for “emotional distress.” October unspecified the Bar’s General Counsel to plaintiff’s Assistant responded correspondence *10 a letter the been in that the manner in which MCLE had explained program of had and that indicated that October 7 claim developed plaintiff’s damage the been forwarded to Board of Governors for review.
After claim filed the Board Governors denied his for damages, plaintiff action, the in the the Bar State and various complaint naming present defendants, damages, and and employees seeking compensatory punitive relief, an his and a of mandate. In writ declaratory injunction, complaint, numer- maintained that the MCLE was unconstitutional in plaintiff program the denied and substan- asserting ous that him respects, program procedural due other tive of the laws. equal Among law process claims, the contended that violated his plaintiff program right from its certain protection by exempting categories equal requirements. alternative, or, for Bar in the State moved summary judgment Proc., (Code 437c.) hearing, After a
summary of issues. Civ. adjudication § the trial in favor of the Bar on all issues granted summary adjudication court Bar, submitted thus of all effectively disposing aspects plaintiff’s and, reconsideration, Plaintiff a motion for challenge. constitutional filed after the filed a order in favor granting court formal summary judgment defendants, court both filed a motion for new trial. The trial denied plaintiff motions, and plaintiff appealed. on focused almost entirely
In the Court of resolving appeal, Appeal claim, the claim that the MCLE and in particular plaintiff’s equal protection of the laws because the denied plaintiff equal protection program program re- the MCLE certain from categories unjustifiably exempted After and all other nonexempt attorneys. that applied plaintiff quirements claim, the Court of standing Appeal that had to raise concluding plaintiff challenge contention that his rejected equal protection first plaintiff’s the MCLE should be evaluated properly classifications drawn by test, with the scrutiny” agreed instead judicial under “strict of review is that the “rational basis” standard ordinary Bar’s position Nonetheless, the Court of ultimately in this context. Appeal applicable state and federal em- that for full-time concluded whereas exemptions relation- clients the rational satisfy who do not individual ployees represent test, (2) officers and elected retired ship exemptions California, accredited full-time officials of the State of professors fact that a wins an election lawyer schools do not. Observing law “[t]he necessarily to a office does not mean that the lawyer or is state appointed ethics, or an current in recent well versed legal legal expert developments, official, or elected in law office state officer management,” “[i]f retired or a individual clients judge, professor represents private such clients the same interests of the legitimate practice, public protection these the Court of concluded that no rational basis exists for apply,” Appeal three exemptions. above,
As noted three that the all Court of although justices agreed Appeal three identified could not be sustained under the “rational rela- standard, tionship” equal protection justices parted company *11 the for the violation question remedy they appropriate equal protection had identified. Two could not find with confi- justices, explaining dence that the the would have section 6070 without Legislature adopted concluded the challenged was invali- exemptions, remedy appropriate whole, date the MCLE as a the “to start anew program leaving Legislature [MjCLE, and initiate reform of rather than to comprehensive legislative reformation of section 6070 the accept judicial mandatorily expanding [MjCLE burden of to those the training Legislature specifically exempted therefrom.” The from this of the remaining justice, dissenting major- aspect “throw[j concluded that there the ity opinion, was no need to out with baby the bathwater” and that the better and more proverbial suggested appropriate (which solution was to excise the the observed offending exemptions justice rather than to few hundred invalidate apparently applied only attorneys) the MCLE as a whole. program
Both and the State Bar filed for plaintiff separate petitions review, review this court. We Bar’s granted only petition (1) which two issues: whether Court presented principal Appeal found that the for retired state officers and properly judges, exemptions officials, elected and full-time at accredited denied law schools professors laws, so, (2) of the and if whether the Court of plaintiff equal protection concluded that the is to invalidate the Appeal correctly remedy appropriate whole, MCLE as a rather than to extend the MCLE program requirements the previously exempted attorneys.6
HI (1) We retired with whether the state’s begin question exemption California, officers elected officials of the State of full-time at accredited law schools from a professors generally applicable denies of the As laws. plaintiff equal protection we shall we the Court of that the with explain, agree Appeal applicable equal standard of review in this context is the “rational relationship,” standard, rather than the “strict but we further conclude that scrutiny,” Court of erred in that the can be Appeal determining exemptions question found unconstitutional under a of the understanding application proper rational standard. relationship
A
In D’Amico Board Medical Examiners
641 that are challenged in classifications Court reviewing United States Supreme Amendment of the clause of the Fourteenth under the equal protection I, of the California Constitu- or article section United States Constitution and conven- “The first is the basic tion. As the court in D’Amico explained: in legislation economic and social welfare standard for reviewing tional between differentiation of treatment there is a ‘discrimination’ or which in relation to the restraint the judiciary classes or individuals. It manifests by it invests in so doing act of a branch discretionary government; co-equal differentiated treatment with a presumption such legislation involving drawn a chal- by that distinctions constitutionality merely ‘requires] to a conceivable legitimate statute bear some rational lenged relationship Moreover, . . . the burden of demonstrating state purpose.’ [Citation.] of a classification under this standard rests squarely upon party invalidity 16-17, (11 it.” Cal.3d at italics in original.) who assails pp. in more test is stringent
The court D’Amico further explained “[a] ... in cases classifications’ or touching applied involving ‘suspect ‘fundamental interests.’ Here the courts ‘an attitude of active adopt critical the classifications to strict analysis, subjecting scrutiny. [Citations.] cases, Under the strict standard bears the burden of such state applied that it has a interest law establishing only compelling justifies which but that to further its necessary the distinctions drawn (11 17.)7 Cal.3d at purpose.’ [Citation.]”
In “strict as contrasted with arguing heightened scrutiny,” standard, “rational should be ordinary determining relationship” applied whether the within the MCLE violate equal protec tion decisions of the United relies on a series of guarantee, plaintiff primarily in any States Court and this court that describe the right “engage Supreme or liberty common of life” a “fundamental” occupations right of the due clauses of the federal and state Constitutions. purposes process v. Nebraska 262 U.S. S.Ct. (E.g., Meyer 399 [43 Examiners, 7Since the decision in D’Amico v. Board Medical 11 Cal.3d standard of review that it has Supreme adopted United States Court has “intermediate” illegiti involving gender on the basis of applied in cases classifications that discriminate 451, 451, (See, macy. e.g., L.Ed.2d Craig v. Boren U.S. S.Ct. 197 [97 by gender challenge, . . . classifications must serve withstand constitutional 397] [“To substantially achievement of those important governmental objectives and must be related to *13 1914, 456, 1910, (1988) objectives.”]; U.S. 461 S.Ct. 100 L.Ed.2d Clark v. Jeter 486 [108 scrutiny lies a level of these extremes of rational basis review and strict 465] [“Between generally discriminatory been classifications scrutiny, applied intermediate which has Nowak, on illegitimacy.”]; generally, or 3 Rotunda & Treatise Constitutional based sex see 18.3, Procedure, 16-19.) present proceeding, party In the no pp. Law: Substance and § authority and there no argued applicable, has that this intermediate standard of review is is support application its in this context. would 642 1042, 1446]; (1968) Yakov
L.Ed. 29 A.L.R. v. Board Medical Examiners of 67, 553]; Bar 68 Cal.2d 75 435 P.2d v. State Cal.Rptr. Conway [64 1107,1113 (1989) 47 Cal.3d 767 P.2d A.L.R.4th 80 Cal.Rptr. [255 101].) Plaintiff from these or court rules legislation reasons decisions that draw distinctions or create of law relating classifications practice and are right” “fundamental impinge upon equal purposes therefore to strict subject scrutiny. In Motor Vehicles 30 Cal.3d Department [177 Hernandez 917], in 634 P.2d we in this
Cal.Rptr.
fallacy
reasoning
explained
a somewhat related contention. As we noted in
addressing
Hernandez'.
“Plaintiff’s
this line of
due
reliance on
cases
procedural
process
appears
an
or
is
rest
that whenever a
interest
upon
‘liberty’
assumption
‘property’
accorded the
due
that interest becomes
protections
procedural
process,
‘fundamental
right’
legislative
regulating
constitutional
so that
measures
an interest
is
subject
scrutiny.
such
are
to strict
This
necessarily
assumption
Recent decisions
established that the
totally unfounded.
whole panoply
from
termina-
ordinary
summary
property rights
generally protected
or
no case has
tion
due
but
deprivation by procedural
process [citations]
that the
remotely
even
substantive
suggested
constitutionality
legislative
are to be
restricting
measures
such
regulating
property’ rights
‘protected
”
omitted;
(30
under a
Cal.3d at
fn.
‘strict
standard.’
judged
scrutiny
p.
also
Cal.4th
Hughes
see
v. Board Architectural Examiners
of
952
641].)
P.2d
Cal.Rptr.2d
In Bib’le v.
Bar Examiners
Thus,
equal
we
the Court of
Appeal
plaintiffs
protection
with
agree
to
must be evalu
the MCLE
challenge
program properly
also Verner
(See
under
relationship”
ated
the traditional “rational
standard.
1109, 1118,
State
Colo.
1982)
(10th
affd.
Cir.
(D.Colo.
533 F.Supp.
v.
in
1983)
standard
determining
B noted, As we with the Court of conclusion although agree Appeal’s here, that the rational standard the we with relationship applies disagree that, standard, court’s further conclusion under this the appellate exemptions at issue unconstitutional. As we shall we program explain, believe the determination reached the Court of a rests Appeal upon of the rational standard. misapplication relationship As both the United and this court ex States Court Supreme occasions, on areas of social and economic a many plained policy, “[i]n nor classification neither lines statutory proceeds along suspect infringes fundamental constitutional must be rights against upheld equal protection there is conceivable state that could any reasonably challenge if of facts a rational basis the there are provide Where [Citations.] classification. ” (FCC reasons’ for ‘our is at an end.’ ‘plausible inquiry [the classification] Communications, 307, 2096, v. Beach Inc. (1993) 508 U.S. 313 S.Ct. [113 2101, added, U. S. Railroad Retirement Bd. 211], 124 L.Ed.2d italics quoting 166, 453, 461-462, (1980) 368]; U.S. v. 449 179 S.Ct. 66 L.Ed.2d Fritz [101 see, Central State Univ. v. American Assn. Univ. Central Professors, e.g., 124, 1162, 1163, State Univ. Chapter 526 U.S. 126-127 S.Ct. [119 Cal. etc. 227]; Newspapers Werner Southern 143 L.Ed.2d v. 35 Cal.2d 825,13 252].) 130-132 P.2d A.L.R.2d Past decisions also establish [216 that, test, under the rational the state that differ relationship may recognize or classes of classification larger may ent within categories persons pose harm, and to those regulation of risk of limit a varying degrees properly may more classes of as to whom the need for to be persons regulation thought Bank Community American & Trust Co. (See, crucial or imperative. e.g., and, moreover, (see 2611]), grounds p. than on id. at S.Ct. at the constitutional 645 [107 against attorneys, rule issue in discriminated out-of-state classification Frazier (See traditionally constitutionally suspect. Supreme Hamp- has been as Court viewed Newof event, indicates, supra, any the the Piper, shire v. 470 U.S. In as text of rule 958 itself legislative policy judgments the adopted at issue in this case were in deference to Legislature’s clearly of section and thus it is embodied in enactment we believe appropriate apply relationship the traditional rational standard here. plaintiff’s “plenary authority” request the extent reference to this court’s constitutes To quasi-legislative authority modify provisions to amend or that we invoke our inherent Court, present proceeding appropriate is not the avenue for rule California Rules based, complaint plaintiff this action is did not pursuing request. such a In on which future, existing change program for the but rather claimed that the simply seek a in the MCLE and, authority place Bar lacked consequence,.that are invalid as a existing current failing comply requirements. with the him inactive status validity that resulted in defendant’s proceeding thus concerns the of the MCLE status, whether, policy, existing exemptions a matter placement on inactive determining validity challenged exemptions be retained or modified. In of the should clause, relationship standard. equal protection apply under the the rational 683.P.2d Cal.Rptr. 36 Cal.3d Hospital Co., 348 U.S. 233]; v. Lee Optical A.L.R.4th Williamson of different dimensions the same field be may S.Ct. 465] [“Evils think. may the legislature remedies. Or so different proportions, requiring time, itself to at a addressing take one step Or the reform [Citation.] mind.”].) As to the legislative seems most acute which *16 phase problem the class of “Defining Court has observed: the United States Supreme that . . . ‘inevitably requires to a regulatory subject requirement persons to treatment claim favored strong have an almost equally some who persons line, the line have might and the fact be on different sides of the placed [that] than rather at is a matter for legislative, been drawn some differently points ” Communications, Inc., (FCC supra, v. Beach consideration.’ judicial 2096, 2101.) S.Ct. U.S. 315-316 [113 case, an MCLE pro the constitutional is whether
In this question licensed the state to by complete gram generally attorneys requires or education courses violates the federal continuing number of specified state officers and state clause retired equal protection exempting officials, full-time schools from the elected at accredited law professors it be that the education continuing Although may reach requirement. a matter of some or all of these is debatable as wisdom exemptions erred in that these finding conclude that the Court of policy,10 Appeal in traditional rational test that applies three fail the relationship exemptions context, there is no this do not it can be said that fairly because we believe that could a rational basis for conceivable state facts “reasonably provide Communications, Inc., U.S. (FCC the classification.” Beach supra, 2096, 2101].) S.Ct. reasons” As we shall there are at least two “plausible explain, First, not each of the in it would rationally support exemptions question. Continuing for Minimum commentary 10TheAmerican Bar Association’s to its Model Rule any Legal against adoption program. to an MCLE Education recommends Ed., (rev. 1996) (ABA Continuing Legal Ed. com. to Legal Center for Model Rule for Min. Nonetheless, great majority adopted that have an MCLE 40 states § (See generally, categories attorneys requirements. from their MCLE exempted have some 9-17.) July pp. of MCLE Rules as of at Comparison age (usually 65 exemption appears attorneys specified to be for over a The most common 70), at issue in this case—elected officials categories exemption but several of the whose exempted require- from MCLE legislators, professors—also have been full-time law 1998, supra, (See July as of Comparison of MCLE Rules ments in number of other states. (elected officials); (elected officials); (legislators); Georgia Montana pp. 9-17 [Delaware (full-time faculty, (full-time faculty); (legislators); Texas law North Carolina Oklahoma judges from Washington (legislators)].) Many exempt states also requirement); ethics except (ibid.), states exemption in other but it is not clear whether their MCLE judges. applies to retired have been irrational to conclude that the in each of the attorneys exempted matter, as a categories, general less than other likely attorneys basis, clients on a full-time thus the need for a continu- represent rendering vital, education ing less as a matter of consumer requirement protection, Second, these classes than for other it been attorneys. would that, irrational to conclude in view of their roles and particular professional in each of the classes as a experience, (again, general exempt matter) are less than likely need education lawyers general continuing courses order to be familiar with recent or to remain legal developments competent practitioners.
Thus, with
of retired
it
not be
respect
category
judges, would
individuals,
class,
irrational to conclude that such
as a
are less
than
likely
other
clients on a full-time basis after their retirement
represent
bench,
because,
retirement,
from the
both
after
such
judges may
likely
*17
work,
because,
scale back the
time
on
overall
and
when
do
spent
legal
they
endeavors,
in
are more
to
engage
serve
professional
they
likely
assigned
mediators,
(or
roles)
or arbitrators
in similar
than to
represent
Furthermore,
individual clients.
because of the
level of
skills and
high
legal
are
to obtain a
as a
qualifications
generally
judge,
required
position
because the
of a
work
involves constant
to and
daily
judge
analysis
exposure
law,
of
in the
it would not be irrational to conclude
ongoing developments
that it is less
for the
of the
to extend the MCLE
necessary,
protection
public,
to this small
than
of
to other
requirement
category
attorneys
attorneys.
with
to the
of officers and elected officials of
Similarly,
respect
category
California,
the State of
it would not be irrational to conclude that because of
the considerable amount of time
for the
of their
required
performance
public
duties,
individuals,
class,
such
as a
are less
than
as a whole
likely
attorneys
basis,
to
clients on a full-time
and that when such individuals do
represent
available,
clients in the limited time
to do so in
they
likely
represent
areas in which
have some
current
or
they
familiarity.
particular
expertise
Furthermore,
devoted, in
because the work of
and state officers is
legislators
substantial
to the review of the current state of the law and the
part,
law,
to
or to the
of
consideration of proposals modify
implementation
law, it
not be irrational to conclude that this
recent
in the
would
changes
whole,
than
of
as a
be less in need of MCLE courses
attorneys,
may
group
in the
other
in order to remain abreast of recent
law.
attorneys,
developments
full-time
at accredited
with
of
Finally,
category
professors
respect
schools,
be irrational to conclude that because of
it
would not
again
to their
and other academic
teaching
amount of time such
devote
professors
a
of
is less
than
as whole
likely
attorneys
pursuits,
category
clients,
basis, and,
do
they
when
represent
clients
a full-time
represent
outside their area
particular
in
work
engage
legal
will
likely
less
Moreover,
of the
academic
outstanding
qualifications
because
expertise.
anat
accred-
a
as a full-time professor
to obtain
generally
position
required
school,
law professor requires
the work
a full-time
ited law
because
law,
the current state of
teaching
intensive study, analysis,
schools
in
aca-
at accredited law
function
full-time professors
because
lectures,
discus-
faculty
in
setting
publications,
frequent
demic
which
law,
all
here
in
areas of
recent developments
sions typically encompass
for the
necessary,
that it is less
not be irrational
conclude
too it would
to this category
to extend the MCLE requirements
public,
attorneys.
than
other
of the exemptions
that in
each
assessing
rationality
We emphasize
in
must
the classifications as whole.
evaluate
question,
appropriately
classes
be as much in
some
within each of these
individuals
Although
berth the state
need of MCLE
as other
in view
wide
attorneys,
courses
right
or fundamental
is
when
classification
traditionally
given
suspect
issue,
in
cannot
be found
properly
not at
question
deferential,
traditional,
rational relationship
irrational
under the
arbitrary
Sons,
(See,
Inc.
standard.
v.
&
e.g.,
Kapilow
Cal.App.3d
Williams
176].)11
162-163
Cal.Rptr.
conclusion,
reaching
upon
In
the Court
relied
contrary
Appeal
part
from this
restrained,
court, however,
in Fein v.
standard of
This
review.
explained
Permanente Medical
Group
(1985)
We conclude that the at issue like the exemptions present Fein, classifications at issue in cannot a be found unconstitutional under of the rational test. The or proper application relationship explanations for the that have noted above—that the attor justifications who fall within each be less than other neys category may likely basis, number of clients on a full-time be less represent significant may than other to need to attend likely education classes continuing order to be aware of recent in the law or remain developments competent (see, Cooper Bray, supra, e.g., 12Atthe time Cal.3d similar cases Newland v. Governors, 705, 711; Board Cal.3d Brown v. Merlo 8 Cal.3d 865 & court, 505]) Cal.Rptr. fn. 7 506 P.2d 66 A.L.R.3d decided there were suggestion might Supreme was some in the academic literature that the United States Court moving adoption equal protection,” provide toward the of a so-called “newer which would Gunther, (see generally, “new bite" for the basis” traditional “rational test Foreword: In Evolving Changing Equal Search Doctrine on Court: A Model a Newer Protection 1), analysis opinions 86 Harv. L.Rev. and some of the in those reflect milieu. time, Supreme explicitly adopted Since the United States Court has an “intermediate” *19 protection involving equal applicable standard of review that is in cases classifications that ante, 7, (see, 641), gender illegitimacy discriminate on the basis of or fn. but at the same relationship” equal time has reaffirmed the deferential nature of the restrained “rational Communications, Inc., 307, (See, protection e.g., supra, standard. FCC v. Beach 508 U.S. 2096, 2100-2103].) Contrary suggestions 313-316 S.Ct. in Justice Brown’s [113 that, dissenting opinion, this court’s decision in Fein makes it clear under both the federal and clauses, restrained, equal relationship a deferential protection state the rational test remains standard, provide protection against albeit one that continues to classifications that do not conceivable, (See relationship reasonably legitimate purpose. a to a also Board bear rational 903, (1992) Supervisors Agency 3 v. Local Formation Com. Cal.4th 913-924 [13 of 245, evaluating Cal.Rptr.2d [applying relationship 838 P.2d same rational standard in 1198] Constitutions]; equal protection claims under federal and California Adams v. Commission 630, [same].) Performance, supra, Cal.4th 658-661 Judicial 8
649 ” “ rather conceivable ‘realistically legislative purpose[s],’ practitioners—are could not have been within the contemplation than “fictitious purposes (Fein, 163, added.) And the italics 38 Cal.3d at p. the Legislature.” of of to related” the consumer-protection purpose are “rationally exemptions who, of as categories attorneys as they identify the MCLE insofar program a to not as risk to other of serious attorneys, may pose categories compared to a continuing legal subject even these are not consumers if “[cjountless constitutional As we have education requirement. explained, clause not the does equal prohibit establish . . . that protection precedents ‘one at a time’ a reform measure step from [citar implementing [the state] is felt tion], it the it most.’ striking or ‘from evil where [Citation.]” prevent (American Community Hospital, supra, Bank & Trust Co. v. 36 Cal.3d nei teach guarantee These authorities that the equal protection a court a consumer nor authorizes to invalidate protection ther requires as adopted, like the because program, measure MCLE program simply (See, e.g., as have consumers. does not far as it go might protecting 463, 466, York Railway Express v. New (1949) U.S. 110 S.Ct. 336 [69 all L.Ed. is no evils requirement 93 equal 533] [“It Election McDonald Board all.”]; v. same be eradicated or none genus 1404, 1409, (1969) U.S. S.Ct. 22 L.Ed.2d 394 809 [89 739] [“[A] need not run the risk of an entire remedial scheme legislature losing simply failed, otherwise, it evil that because inadvertence or cover through every attacked.”].)13 been might conceivably have
In these for the declining justifications challenged exemp accept tions, “no the Court of relied the circumstance that there was upon Appeal uncon argues exemptions question 13Oneamicus curiae that the three should be found because, ante, (see, exemptions employees stitutional for state and federal unlike full-time 636-637), actually undertake pp. exemptions exempt attorneys fn. are not if the these lost greater diversity of represent private substantially a In number and client. view attorneys, categories compared included to those within the state and federal issue, falling the three here at cannot find that is no rational basis exemptions within there exemptions employees. to state and providing scope narrower accorded federal event, any relationship governing In authorities establish that under rational standard, may may simply a court not strike down classification because the classification (see, e.g., Dandridge v. U.S. S.Ct. imperfect Williams 397 485 [90 1161-1162, 491]) 25 L.Ed.2d because it be “to extent both underinclusive some 939, 948, (Vance Bradley 440 L.Ed.2d S.Ct. overinclusive.” U.S. 171].) in the could scope The circumstance that the various congruent under the provide been more does not basis to invalidate them sufficient (See, Authority relationship e.g., New rational standard. York Transit v. Beazer 1355, 1369-1370, does [the classification] U.S. S.Ct. 59 L.Ed.2d 587] [“Because affiliation, it does persons unpopular not circumscribe a class of characterized some trait or ruling majority. Under any special part create or reflect likelihood of on the bias circumstances, degree rationality is not significance these it of no constitutional that the *20 great respect subparts respect ill-defined classification it is with with to certain of the as omitted.)].) (Fn. as a the classification whole.”
650 in the of section support” legislative history 6070 to indicate that these were the actual of the rationale or motivation for the of the explanations adoption and that “no member of the Bar or other exemptions, involved in the person of the design was to declare under willing penalty [M]CLE that the were based perjury . . . .” The Court exemptions upon theory instead, that the Appeal suggested, of section legislative history 6070 fashion, “indicates the were added in exempted groups piecemeal benefiting certain who lawyers were in the or serving Legislature otherwise and did not ‘ ’ ” wish to be into a “dragged classroom.”
In as a basis for its relying, constitutional the absence of ruling, upon evidence in either the or in the court legislative history record to indicate that the proffered justifications for the were actual motivation for other, of the adoption its view that less exemptions, upon lofty considerations constituted the actual motivation for enactment of such the Court of failed exemptions, to adhere to several fundamental Appeal tenets of the rational standard of review. As the United relationship ' ’ States Court has absence Supreme facts” explained: “legislative “[T]he the distinction the record’ has explaining no significance ‘[o]n [citation] words, rational-basis In other analysis. choice is not legislative [Citations.] to courtroom subject be based on factfinding may rational speculation Communications, evidence or unsupported by (FCC data.” Beach empirical v. Inc., 307, 2096, added; 2102], 508 U.S. supra, 315 S.Ct. italics see also [113 Heller v. Doe U.S. 509 320 S.Ct. 125 L.Ed.2d [113 State . . . has no evidence to sustain the obligation produce 257] [“A Furthermore, of a classification.”].) rationality statutory court has high that when there is a explained conceivable for a reasonably justification classification, is . . . ‘constitutionally irrelevant whether reason “[i]t [the] ” (U. in fact ing underlay legislative decision’ S. Railroad Retirement Bd. Fritz, 453, 461], v. 449 U.S. S.Ct. supra, v. quoting Flemming [101 1367, 1373, 1435]), Nestor 363 U.S. S.Ct. 4 L.Ed.2d [80 whether the “conceived reason for the challenged distinction moti actually Communications, Inc., (FCC vated the legislature.” v. Beach 508 U.S. Thus, 2102].) S.Ct. in instances in which the rational that, fact, standard is a classification relationship applicable, is rationally related to a conceivable not be set reasonably legitimate public purpose may aside as denying laws on that the equal protection ground or other maker that Legislature fashioned the classification policy acted out of what is as self-interest or had some other may have perceived (Ac asserted motivated” the measure. “politically purpose supporting cord, Los County Court 13 Cal.3d Angeles Superior 631, 532 P.2d act does Cal.Rptr. validity legislative 495] [“[T]he on the motivations of its draftsmen but rests instead on depend subjective terms.”].) effect of the objective legislative *21 and understanding that under a we conclude
Accordingly, proper standard, the relationship” equal protection of the “rational application unconsti at issue cannot found here program exemptions a conclusion.14 contrary The of erred in Appeal reaching tutional. Court IV reversed, is is and the matter of the Court judgment Appeal summary to affirm the to Court of with directions
remanded the Appeal of defendants. favor judgment
Mosk, J., J., J., Chin, J., Baxter, concurred. and Werdegar, KENNARD, J. dissent. I that currently the I the Court of as agree
Unlike with majority, Appeal the education continuing legal structured Bar’s program mandatory rule, a established court denies Califor- (MCLE), that court program by the the state nia the law guaranteed equal by grant- federal Constitutions. The MCLE denies equal protection no continuing requirements, from all education ing complete exemptions reason, school judges, professors, rational to retired law legitimate that this agree state officers and elected officials. I do not with majority as it is to decide issue—particularly court this equal protection compelled basis relates to the state the traditional rational Constitution—by using Nor that standard. do I with the when MCLE’s agree program’s standard, under are justifiable. are tested that exemptions determination, endorsing Appeal’s Kennard’s and Justice Brown’s 14In the Court Justice dissenting relationship test a deferential opinions inappropriately apply fail to the rational court, manner, ruling on an effectively treat as one that when permits instead that test standard, underlay a reweigh choices protection challenge policy under that to that equal efficacy legislative legislative quasi-legislative or or to classification reevaluate terminology in Contrary implication conveyed by to Justice Kennard’s measure. dissent, not holding upon our on the constitutional in this case based a determination issue officials, professors or “deserve judgment that retired elected full-time Kennard, J., need,” from, (see opn. dis. exemption” or “do not the MCLE 657, 658), simply upon that irrational or post, pp. but a conclusion not Thus, certainly arbitrary. although policymaker it would be reasonable for a to conclude continuing as it important part-time attorneys complete to education courses require it is so, arbitrary or attorneys to that it would be require is to full-time do it does follow impose require more policymaker important irrational for determine that it is such clients, likely represent impose and to ments on full-time who are more clear, attorneys. only Supreme such As the United Court has made requirement States failed, losing simply “need not entire because it state run the risk remedial scheme otherwise, through every might conceivably evil have been inadvertence or to cover Election, (McDonald 1409].) Board S.Ct. attacked.” 394 U.S. *22 Standard of Review The United States Court and this court Supreme have enunciated three standards of review for constitutional deciding equal protection challenges. Tribe, (See 16-32, American generally, (2d 1988) Constitutional Law ed. § classification, 1601 et For p. seq.) legislation containing such as “suspect” race, interest, or touching fundamental such as upon courts have voting, been directed to strict and to apply scrutiny if its uphold legislation only classification is tailored to further a precisely compelling governmental Constructors, (Adarand 200, interest. (1995) Inc. v. Pena 515 U.S. 227 [115 2097, 2112-2113, 158]; S.Ct. 132 L.Ed.2d (1982) v. Doe Plyler 457 U.S. 202, 2382, 2394-2395, 216-217 786]; S.Ct. 72 L.Ed.2d [102 Darces v. 871, (1984) 807, Woods 35 Cal.3d 458]; 888 P.2d Cal.Rptr. 679 [201 461, Johnson (1975) 129, v. Hamilton 15 Cal.3d 466 541 P.2d Cal.Rptr. [125 881].) For legislation the basis of or discriminating gender illegitimacy, courts are to intermediate apply to if scrutiny uphold legislation only its classification serves an and is important governmental objective substan related to tially (United achievement of that States v. objective. Virginia 515, (1996) 2264, 2275-2276, 518 U.S. 533 735]; S.Ct. 135 L.Ed.2d [116 190, 451, (1976) 456-457, v. Boren Craig 429 U.S. S.Ct. 197 50 L.Ed.2d [97 397]; 637, 643, In re Marriage (1982) 31 Flaherty Cal.3d fn. 2 [183 508, 179].) 646 P.2d Cal.Rptr. when the Finally, conditions either requiring absent, strict or intermediate are scrutiny courts are to what is com apply review, called the monly “rational basis” standard of under which challenged legislation is if its classification is related to a upheld rationally legitimate (Romer v. governmental (1996) Evans 517 purpose. U.S. 631 S.Ct. [116 1620, 1626-1627, 855]; Communications, 134 L.Ed.2d FCC v. Beach Inc. (1993) 2096, 2100-2101, 211]; 508 U.S. 313 S.Ct. 124 L.Ed.2d [113 (1974) D’Amico v. Board Medical Examiners 11 Cal.3d 16 [112 10].) 520 P.2d Cal.Rptr. The holds that the majority standard of review for the proper equal in this case is the protection challenge deferential rational basis highly ante, 640.) standard. (Maj. its selection of opn., majority justifies this standard decisions that this by citing holding minimal standard is for appropriate classifications in equal protection challenges professional (See, license laws. Williamsonv. Lee Co. occupational e.g., Optical 461, 464-465, 563]; 348 U.S. 488-489 S.Ct. L.Ed. 99 D’Amico v. [75 Examiners, 1, Board Medical 11 Cal.3d Petitioner has the MCLE under the challenged protec equal tion of both the state and the federal Constitutions. In provisions construing the California Constitution’s this court has not guarantee, equal protection
653 construing equal of the federal court high decisions slavishly followed federal Constitution. Amendment clause of Fourteenth Cal.4th Butt v. (Compare California right equal is fundamental 842 P.2d Cal.Rptr.2d 1240] [education Dis Antonio School with San under state Constitution] protection purposes 1278, 1299-1300, U.S. S.Ct. trict v. 37-39 Rodriguez a fundamental right education the status of [declining give L.Ed.2d 16] here brought challenge federal Because purposes equal protection].) Constitution, obligated as well as the federal under state Rather, fondly decisions that the cites. follow federal many *23 course, a finds reasons to chart different cogent when court “[w]e the and force to the to give meaning the power duty independent 478, (1993) 5 Cal.4th 558 our v. Cahill (People of state charter.” provisions Kennard, J.).) of (dis. P.2d 853 Cal.Rptr.2d opn. 1037] review, is not basis of as traditionally applied, The rational standard is a court As this the to rule. challenge when appropriate equal protection “manifests restraint by court has traditional rational basis review explained, of act a branch the in relation to the of discretionary co-equal judiciary Examiners, (D'Amico 11 Cal.3d v. Board Medical government.” of the 16.) This an effete standard of is absent when review justification enacted a branch is not a law protection challenge by co-equal equal here but to a rule. The MCLE government petitioner court not a challenges by by Legislature signed were bill the imposed passed Governor, the the nor an initiative by they imposed by adopted by were MCLE rule voters. This court the imposed requirements by adopting The that this court should and usually the California Rules Court. restraint does enacted considering challenges exercise when laws equal protection unnec the voters the initiative is through process, by Legislature, by chal this court is essary unfitting deciding when equal protection a deference. United to court rule. We owe ourselves no The lenge particular court discriminatory States Court has itself subjected allegedly Supreme (See, rules to a v. Heebe heightened e.g., form scrutiny. Frazier 557].) court has 482 U.S. S.Ct. 96 L.Ed.2d This likewise 641 [107 court ensure that classifications we impose by responsibility particular do arbitrarily. rule not discriminate is
The asserts traditional rational basis review appropriate came into because in the court rule which MCLE by program adopting to “legislative this court was being merely deferring policy judgments and Professions embodied in the enactment Legislature’s [Business Code] ante, at fn. section 6070.” (Maj. Responsibility opn., p. admissions, education, and not Attorney MCLE so shirked. easily are matters over discipline which this court has inherent as this authority, court in a recently proclaimed (In decision authored the Chief re by Justice. Attorney System (1998) Cal.4th Discipline 592-593 Cal.Rptr.2d P.2d 49].) We with law review article’s state quoted approval “ court, ment that ‘In each state it is the with or supreme without education, legislative that dictates the approval, standards for admission and ” (Id. Martineau, discipline attorneys.’ quoting Supreme Court and State Regulation Legal (1980-1981) 8 Hastings Profession Const.L.Q. 202.) In Business and enacting Professions Code section 6070, the Legislature this court’s implicity acknowledged in matters primacy relating attorney qualifications by merely directing State Bar to that this court an MCLE request This court not adopt program. was required to accede to this much less to all of the request, accept Legislature’s short, suggestions about the details. In program’s is this court’s and deference to program, should Legislature no in our play part review of its evident shortcomings. rule,
Because the law here is a court challenged enacted legislation branch, test, co-equal rational basis is unnec- traditionally applied, *24 and essarily weak and deferential. Because this court inappropriately has to determine the plenary authority standards of proper review for equal Constitution, under the state protection challenges court this is not com- Instead, pelled conventional rational basis test. apply this court should conduct a and unbiased thorough into whether the inquiry exemptions related to the of the sufficiently legitimate goals to be program enforced without denying practicing attorneys the law equal protection our state guaranteed by Constitution. It is to determine the unnecessary used, however, standard that precise should because the challenged are invalid even under the traditional rational basis test that majority here. applies
Applying the Rational Basis Standard review, In the rational basis standard of I applying begin by what asking the MCLE are intended to I purpose serve. with the agree that the basic of MCLE is consumer The aim of purpose protection. education continuing legal is assurance to the provide continuing public that all California no matter attorneys, how many years may passed admission, since their school graduation law and State Bar have the knowl- and the skills to their clients edge with services. provide high legal quality To achieve this the MCLE objective, that three program requires every as a condition of their active years, maintaining State Bar membership, education, including legal hours attorneys thirty-six complete approved legal hours of either four ethics and an additional four legal least hours ethics, (See Cal. Rules of remedies. rights civil management, practice Bar, Court, conferred under 958(c).) authority rule The State acting in and (ibid..), regulations require, court has rules adopted implementing detection, and addition, least relate to prevention, one shall “[a]t [hour] distress, no more than six and but treatment of substance abuse emotional distress,” and that least one shall relate emotional “[a]t [hour] [hours] of, elimination but of bias in the based legal any shall relate profession race, sex, color, ances- religion, not limited to the characteristics: following and sexual disability, age, national blindness or other try, origin, physical (State 2.1.3.) Bar Ed. Rules & Regs., orientation.” Min. Cont. Legal § about serious have been raised the effectiveness Although questions I here assume that in general MCLE program currently implemented, in consumers legitimate by reducing value protecting incidence and Instruction in substantive law legal seriousness malpractice. legal advising reduce mistakes may attorney represent- procedure ethics harming clients. Instruction in from ing legal may prevent their clients ethical violations. Instruction in law office man- by unwitting funds, reduce mistakes caused of client agement may handling by improper deadlines, in eliminating missed and the like. Instruction inadvertently filing bias aware such from the make more legal profession may biases and assist in eliminating Finally, preventing, them. instruction detecting, treating substance abuse and emotional distress avoid mistakes from abuse and stress- attorney resulting substance malpractice related problems.
For is the essential not whether MCLE present purposes, question services, benefits but three general legal consumers how exempting from MCLE be recon groups attorneys requirements may practicing this ciled with this consumer Before addressing protection purpose. question are I consider that MCLE directly, majority’s argument immune from not largely legislation because need protection scrutiny equal a and can address in those comprehensive only problem piecemeal ante, need at where the for aspects regulation greatest. (Maj. opn., appears 644-645.) Hays In 25 Cal.3d Cal.Rptr. v. Wood pp. 19], on same that P.2d court reliance authorities rejected cites, “at least as relate to the majority application now insofar of our We that explained state Constitution.” equal provisions protection out for at its Legislature may not single group regulation “wholly (id. 790) at rather “its as to ‘strike’ must whim” but decision where p. (Id. at have a basis in In objectives.” rational light legislative “ words, other there must be ‘some in the nature of the class rationality ” Communications, Inc., (Ibid.; out.’ see also FCC v. Beach singled 307, 323, Stevens, J.) (conc. 508 U.S. fn. 3 S.Ct. opn. 2106] his view that when a law a burden on one but leaves [stating “imposes group, situated, unaffected another that is ‘the identically, similarly, though Constitution more than a “conceivable” or something merely “plau requires ”].) sible” for the treatment’ explanation unequal The all MCLE two for from majority proposes justifications exempting those are retired who law requirements practicing attorneys profes- sors, examine or state officers or elected officials. I these justifications turn. “First, states: it would not have been irrational to conclude matter,
that the in each of the as a attorneys general exempted categories, basis, full-time less than other clients on a thus likely represent vital, the need for a education less as a rendering continuing requirement matter of consumer for these classes than for other attorneys.” protection, ante, 645-646, italics in (Maj. original.) opn., pp. I
This contains within itself an justification utterly proposed assumption an MCLE reject—that only who exemption practice part-time is related to the of consumer How is it rationally goal rationally protection. that are more than related? Is it rational to suppose part-time lawyers likely full-time to be not. Certainly aware new laws lawyers regulations? Those a trade or are less to be only likely practicing profession part-time and thus more in need of legal continuing aware new developments, education, than those full-time. Is it rational to that who practice suppose clients of need less from lawyers part-time incompetent represen- than the clients of full-time not. Clients of Certainly tation lawyers? part- time are as vulnerable caused lawyers damage by legal malpractice, Thus, and as of full-time I do not deserving lawyers. clients protection, related to consumer rationally see how exemption part-time lawyers Indeed, I can think of no other licensing law protection. exempts from aimed at assuring continuing part-time practitioners pro- from imagine fessional competence. Try exempts professional those who few surgeons operate only patients competency requirements *26 airline or flights, each or those commercial who make a few only year, pilots those or contractors who build a few engineers only high-rise buildings idea ludicrous. The freeway very overpasses. but
The other seem more plausible, majority’s proposed justification “Second, it been irrational to conclude at first would only glance: the roles and that, experience, of their professional in view particular matter) are less a general as (again, the classes in each of attorneys exempt in order education courses continuing to need than likely lawyers general or to remain competent recent legal developments to be familiar with To evaluate ante, in original.) at italics (Maj. p. opn., practitioners.” to examine sepa- it is necessary justification, of this rationality proposed thinks and why majority classes of attorneys the three rately exempt do class, attorneys, run of working unlike the common in each courses. education continuing not need to complete any resumed the who have judges think that retired does the Why majority education instruction continuing required law do not need the practice of words, retired deserve judges exemption In the majority’s other attorneys? that generally skills and “because of the level high legal qualifications of a work daily as a and because to obtain a judge, required position of ongoing to and analysis developments involves constant exposure judge ante, find this I attempted in the law . . . .” (Maj. opn., p. is not suffi- The work” of most “daily judges rationalization unpersuasive. knowledge significant legal developments. cient to provide adequate Rather, an official judicial education activities is “[pjarticipation judicial Court, Standards Jud. (Cal. 970(a); Rules of rule see also Cal. duty.” Codes, ed.) Admin., (1996 et 2 West’s Ann. Rules (Appen.) seq. pt. § includes et education publications, The seq.].) program judicial classes, Educa- the California Center of Judicial and seminars provided education (CJER). tion and Research If need a judges continuing MCLE to do not need why they represent perform competently judges, of their daily that most because clients after retirement? I assume their knowledge attendance at CJER are current in work their programs, effective. But I on the their retirements become day of legal developments in their legal that all are current assume with justification equal Thereafter, Bar. for admission to when first knowledge they qualify indeed, however, all (and, both retired and recent admittees practicing judges learn of significant legal face the same attorneys) obligation promptly recent If relevant to the areas of law in which practice. developments MCLE, need retired who judges admittees and “ordinary” working attorneys clients have Bar and to choose to reactivate their State membership represent same need. very elected do not does the think that ojficers state Why majority officials of other attorneys? need the education instruction continuing required officers is state legislators states “because work devoted, current state of the law in substantial to the review of the part, law, or to the implementation the consideration of modify proposals *27 law, to conclude that this recent in the it would not be irrational changes whole, than be less in need of MCLE courses as a attorneys, may group in the order to remain abreast of recent other attorneys, developments ante, 646.) at law.” (Maj. opn., p. the bulk of their actually
One whether state may legislators spend question rather than in and enacted legislation, time in a scholarly study pending to constituent and fundraising, responding requests political campaigning and and legislative negotiation with meetings lobbyists, complaints, event, state are aware legislators In dealmaking. any although presumably enact, are not the only signifi- these state statutes collectively laws they law, ordinances, Federal local the decisions of state and cant source of law. courts, rules, rules and agency regulations federal court and administrative affect a client’s interest in particular are all sources of new law than the average attorney case. State are no more legislators likely practicing The these sources. majority’s to be aware of from legal developments to other state officers and is even more tenuous as applied rationalization Governor, State, officials, Secretary the Lieutenant including elected Treasurer, Controller, Their offices or the of Voters. Registrar but only to be of all new legal developments, do not them aware require their official duties. those affecting developments are likely that state officers and elected officials The also asserts majority some current clients “in in which particular areas represent ante, no 646.) The cites majority or familiarity.” (Maj. expertise opn., accurate, assertion, at least it is basis for this and I whether question factual likely state officers and elected officials if the means that majority of their in matters related to performance undertake representation a conflict result in likely duties. As such would any official representations interest, officers and elected officials who I think it more that state likely unrelated to do so in matters only choose to law on side will practice their official duties. at accredited law think that professors does the Why majority full-time of other education instruction required need the continuing
schools do not “because of that the is justified states exemption attorneys? to obtain position academic generally required outstanding qualifications school, because the work of at an accredited law as a full-time professor teaching study, analysis, the intensive full-time law professor requires law, at accredited because full-time of the professors the current state lectures, in which setting publications, in an academic law schools function recent developments discussions encompass faculty typically frequent ante, at p. . . . .” (Maj. opn., all areas *28 ridiculous to law school professors I that it would be agree require are at teach because their activities teaching attend classes in subjects they But MCLE classes. attending least the functional equivalent allow for this by Bar’s MCLE regulations already permitting implementing (State a school class. MCLE credit for law attorney teaching receive any 4.1.5.) & The State Bar Bar Min. Cont. Ed. Rules Legal Regs., computes § school class are the credits in this “Credit hours for law way: teaching the number of credit the law granted by hours/units computed by multiplying is to a set subject school 12. If a law school class devoted by portion is, ethics, forth in section 2.1 law office civil legal management, rights [that remedies, and treatment of substance abuse and emotional dis- prevention tress, and bias in the credit hours for eliminating legal teaching profession], are actual time one. In no subject by by computed multiplying speaking case the credit hours claimed for a law school class exceed may teaching (State credit hours/units 12.” Bar Min. Cont. Ed. Rules Legal multiplied 5.4.1.) & Regs., §
This allows full-time at accredited law schools to regulation professors Indeed, all satisfy MCLE their through teaching activities. requirements three-unit course teaching single would hours MCLE provide thirty-six credit, the MCLE for a enough satisfy three-year requirement period, that the course included the number of hours in the provided only required areas. If a full-time mandatory subject teaching does professor’s satisfy MCLE because it does not cover sufficiently mandatory there subjects, is no rational basis to infer that the more any professor instruction, in those knowledgeable less in need of than subjects, any In credit average view the rule practicing attorney. providing appropriate courses, law school MCLE for teaching full-time complete exemption at accredited law schools is professors unnecessary unjustifiable. test, Even I am unable to con- conventional rational basis applying clude that the are related to the MCLE challenged rationally exemptions legitimate of consumer program’s purpose protection.
Remedy structured, For the reasons I MCLE given, program currently with its and state existing retired professors, officials, officers and elected denies other attorneys equal protec- practicing tion of the law. There are two remedies for this equal protection possible severable, alone violation. If the those provisions exemption provisions invalid, of the court rule and the be declared remainder may be enforced. MCLE regulations establishing implementing severable, if the are not Alternatively, the entire exemption provisions (See declared invalid and its enforcement program may enjoined. v. Fair Pol. Practices Com. 11 Cal.4th Kopp Cal.Rptr.2d 1248].) P.2d *29 The Court of of the view that the MCLE Appeal, although unanimously failed could not on the equal protection scrutiny, agree question Two Court of concluded remedy. justices Appeal exemption provi- invalid, sions were not severable and the entire MCLE was while program the other would have enforcement of the MCLE justice permitted program without the exemptions.
Were three of with me and form a my colleagues agree majority, would have to decide the difficult Because a question remedy. majority violation, however, this court finds no is academic equal protection point and I no view on it. express
Conclusion of the law “means ‘that situated Equal protection similarly simply persons ” with of the law receive like treatment.’ respect legitimate purpose 480, ex rel. El Dorado 5 Cal.3d (People Younger County 502 [96 553, Here, effect, 1193].) 487 P.2d holds that Cal.Rptr. law, all before the although some equal attorneys—retired and state officers and elected officials—are more professors, administered and than others. I If a formal MCLE equal disagree. program, Bar, the State to assure that the supervised by necessary appropriate current, and skills of remains the MCLE knowledge practicing attorneys should be to all program attorneys who requirements applied uniformly clients. Because the current court rule represent private arbitrarily exempts certain from the MCLE I actively practicing attorneys requirements, agree with the Court of that it violates the constitutional Appeal equal protection guarantees.
BROWN, J., We needlook no further than the California Dissenting. Constitution to conclude that California’s edu mandatory continuing legal (MCLE) cation is unconstitutional because it arbitrarily exempts certain classes of active from its while imposing requirements those on others. I, 7, (a),
Article section of the California Constitution subdivision pro vides: “A not be . . . denied of the laws . . . .” may person equal protection (b) “A citizen or class of citizens Subdivision same section provides: terms immunities not on the same granted not be granted privileges IV, (a), “All article section subdivision Finally, provides: to all citizens.” the latter Significantly, of a nature have uniform general operation.” laws Constitution, in the federal and we two find no counterpart provisions than the federal them as greater protection equal interpreted providing held that the state Constitution clause. we have Specifically, “ ‘a into the serious and genuine judicial inquiry correspondence requires ” (Newland v. classification and the legislative] legislative goals’ between [a 566 P.2d Board Governors 19 Cal.3d Cal.Rptr. 254], (5th 1974) 1011) Cir. F.2d v. Estelle quoting Dorrough classifications, here, such as those at issue that are legislative prohibits (Brown overinclusive” or “underinclusive.” v. Merlo “grossly Cal.3d 877 & fn. 17 506 P.2d 66 A.L.R.3d Cal.Rptr. 505]; (Utah 1995) see also State v. Mohi 901 P.2d uniform 997 [“Utah’s *30 laws establishes different than operation provision requirements [the] Nevertheless, Clause.”].) does the federal Protection does Equal majority not even bother of the California Constitution analyzing from those of the federal Constitution. should independently standards, California’s in case it would con apply equal protection which clude, do, Instead, as I that the at issue here are unconstitutional. it treats the California standards as if did not exist. simply
I Our state out of a equal protection jurisprudence grew recognition cases, of federal standards. Like our state the federal cases inadequacy (see, tiers of basis” recognize two review: “rational FCC v. primary e.g., Communications, (1993) Beach Inc. 508 U.S. 313 S.Ct. [113 2100-2103, 211]) (see, 124 L.Ed.2d Hunt “strict Shaw v. scrutiny” e.g., 1894, 1901, But, 207]). 517 U.S. L.Ed.2d in 907 S.Ct. 135 [116 basis,” cases, basis, “rational as used in the federal means practice, any “ (Gunther, “strict is ‘strict’ in scrutiny” fatal fact.” Fore theory [but] word: In Search Doctrine A Evolving on a Court: Model Changing Doctrine).) Newer Protection 86 Harv. L.Rev. 8 Equal (Evolving result, As outcome in case turns on how the court chooses to every classifications, characterize the classification. such as those based Suspect “fundamental,” on race or that the court deems warrant strict rights impact (read “fatal”) (read other classifications warrant rational basis scrutiny; Communications, Inc., (FCC goes”) review. v. Beach 508 “anything supra, 2096, 2100-2103].) U.S. 313-316 S.Ct. As Justice Mosk so aptly it, vice of the that it either a standard ... put binary theory applies “[t]he (the test) that is met one that is rational or virtually always relationship (the test). almost the test is never satisfied strict Once scrutiny [Citation.] selected, .” (Hays is foreordained . . . Wood the result of its application (conc. P.2d opn. 25 Cal.3d Cal.Rptr. 19] Mosk, J.).) of this Professor Gunther years ago, recognized inadequacy
Thirty that the court high might suggested approach equal protection Doctrine, supra, “means Harv. scrutiny.” (Evolving toward moving courts do not 24.) second-guess legisla L.Rev. at Under means scrutiny, p. unless, course, contravene consti tive those purposes explicit purposes, (Id. 21-23.) at to free right pp. tutional constraints such as speech. chose, Instead, in order to ensure examine the means the legislature courts (Id. at the legislative pp. that those means advance adequately purpose. 46-47.)
Means has the of not advantage being subjective process scrutiny (Evolving on the or biases judges. turns merely personal philosophies Rather, Doctrine, 42-43.) at whether a law fact 86 Harv. L.Rev. pp. is, it has successful over time—is furthers its whether proved purpose—that criteria, based on objective can something litigants disprove .and prove (Id. making. the sort of courts are capable therefore it is inquiry Moreover; does asks a law merely actually because means whether scrutiny do, it to it does not interfere in the legislative intended legislature what so as to to do their work carefully but only encourages legislatures process, *31 Gunther in his argued groundbreak avoid unintended results. As Professor article, of the . . . can political ing scrutiny improve quality “[m]eans of its results—by the substantive validity second-guessing process—without of the for legisla fuller in the arena airing grounds encouraging political that the [legislature] often the assurance only action. . . . . . . Too tive fi[] has. Means that it about the issues is judicial presumption has thought corre that the greater safeguards presumed process would scrutiny provide (Id. 44.) . .” at . . reality p. sponds in a series cases court Professor Gunther’s proposal
The high adopted that a the court held the federal clause. takings Specifically, interpreting “ the ‘legiti advance’ ‘substantially if it does not taking effects regulation (Nollan v. Coastal to be achieved.” mate state interest’ sought California 3141, 3147, 825, 834, L.Ed.2d fn. 3 S.Ct. 97 (1987) 483 U.S. Comm’n [107 374, 385 S.Ct. 677]; (1994) 512 U.S. City Tigard [114 see also Dolan v. Coun 2309, 2316-2317, 304]; Carolina Coastal L.Ed.2d Lucas v. South 129 2886, 2893-2894, L.Ed.2d 1003, 120 S.Ct. U.S. 1016 cil 505 [112 470, U.S. DeBenedictis 480 798]; Coal Assn. v. Bituminous Keystone 1241-1242, 1232, 472]; v. Riverside L.Ed.2d United States 94 485 S.Ct. [107 458-459, Homes, 88 S.Ct. (1985) 474 U.S. 126 Inc. Bayview
663 S.Ct. U.S. 260 419]; (1980) v. Tiburon Agins L.Ed.2d means legislative 106].) Obviously, requirement L.Ed.2d rational more than demanding advance” legislative purposes “substantially between review, relationship” some “rational basis which only requires Beach, Court Ltd. v. (Santa Superior Monica means and ends. (dis. opn. P.2d Cal.Rptr.2d 993]
Cal.4th 1027-1028 [81 Wood, v. we Hays Merlo and Brown, in Brown v. J.).) More important, under review applicable as the standard scrutiny judicial means adopted the state equal protection provisions. Merlo, automobile statute guest struck down an
In v. we supra, Brown the negligent recovering automobile from guest injured prohibited host, (8 at circumstances. Cal.3d pp. in certain narrow of his driving except that, it if the law’s was 858-859.) protect hospitality, We noted purpose guests out “automobile singled underinclusive because was grossly (Id. 859; 864.) id. at at see also p. from all other guests.” p. as distinguished hand, between collusive lawsuits the other if its was to prevent On purpose drivers, because the the law was overinclusive grossly automobile guests (Id. at not file collusive lawsuits. of automobile would guests vast said, 859; to eliminate 874-875.) “it is unreasonable see also id. at We p. pp. because some undefined causes of action of an entire class of persons simply 875.) (Id. at file fraudulent lawsuits.” p. class designated portion scheme noted that an classification More we “overinclusive generally, . .” in like manner . . . . . does not treat situated individuals similarly Merlo, 876.) we held that (Brown 8 Cal.3d at Accordingly, p. not absolute precision the constitutional do “[although provisions require classifications, classifications which do not tolerate designation of fairness or reasonable- are so as to notions grossly defy overinclusive conclusion with (Id. respect ness.” at We reached the same p. made (id. 17), fn. and we classifications grossly underinclusive and therefore were clear that were the state Constitution construing *32 deferential standards might apply constrained more possibility (Id. 7.) at fn. under the federal Constitution. p.
Thus, Merlo, Cal.3d instructed our in Brown v. 8 holding supra, chose to advance its purpose. courts to scrutinize the means the Legislature overinclusive grossly held that if the relied on Legislature we Specifically, classifications, then it chose means that are constitution- or underinclusive And so as leave and courts must strike the law down. ally inadequate, later in reiterated it seven years no doubt about this we absolutely point, case, officials that treated public v. In that we struck down law Hays Wood. with from other officials or brokers differently public who were attorneys 664 Wood, 25 Cal.3d at to income disclosure. v. (Hays supra, pp.
respect the statute as a 778-779.) against General Attorney justified officials, arguing bias on self-serving part public than other from their business endeavors brokers receive greater profit 788-789.) because (Id. at We found this justification inadequate persons. pp. no reasonable it underinclusive. we saw explanation was Specifically, having relatively high of but two of the several professions “the selection (Id. at We noted . . . treatment . . . .” p. profit margins special did more than shift the focus of that the General’s “no argument Attorney words, (Ibid.) In other the law from one distinction to another.” inquiry from business be in and brokers treating attorneys differently might justified and brokers but it was not in justified treating attorneys people general, high from other business who differently people enjoyed comparably profit, 789-790.) (Id. at margins. pp. on which federal
Significantly, rejected precedents expressly (1955) 348 relies v. Lee Co. today, including Optical Williamson cases 563], read these U.S. 483 S.Ct. L.Ed. saying, “respondents [75 relate to the application equal too least broadly—at insofar Wood, v. (Hays supra, our state Constitution.” protection provisions of etc. added.) continued: v. Southern Cal. Cal.3d at italics We “Werner p. 252]], P.2d 13 A.L.R.2d which [(1950) 35 Cal.2d Newspapers in this jurisdiction, statement of the doctrine subject the definitive represents when it chooses body, makes it that the lucidly legislative apparent fashion by concern in less than address a area of comprehensive particular not do so it is felt most’ the evil where merely ‘striking [citation] to ‘strike’ must (Ibid.) Rather “its decision as to where at its whim.” wholly (Id. 791.) We at objectives.” p. a rational basis in light legislative a reasonable basis for there exists held that the ultimate “whether question classi- legislative to conclude that the members the legislative body [the it danger sought made ‘the most conspicuous example up fication] Cal. etc. (Id. v. Southern Werner quoting preclude’ [citation].” 252].) P.2d 13 A.L.R.2d (1950) 35 Cal.2d Newspapers to take Therefore, legislatures the federal Constitution may permit though Co., Lee (see Optical solving Williamson a shotgun approach problem 483), greater Constitution insists precision, 348 U.S. our state chose to the Legislature to scrutinize the means it does so courts by requiring the legislative “rubberstamping” Rather than merely advance its purposes. “ here, and genuine ‘a serious at issue we should engaging categories and the the classification between into correspondence judicial inquiry ” *33 Governors, Cal.3d at 19 (Newland supra, p. v. legislative goals’ Board of and, the legislative should be whether 711), asking more we particularly,
665 being without legislative classifications advance substantially purposes Merlo, (Brown supra, or “underinclusive.” v. overinclusive” “grossly 17.) at 877 & fn. Cal.3d p.
n standards, that the California these I have no trouble concluding Applying of our state Consti- violates the equal protection guaranties tution some without others who are active exempting exempting (Purdy situated to the of the law.” “similarly legitimate with respect purpose (1969) & v. State 71 Cal.2d Fitzpatrick Cal.Rptr. of California 1194].) 456 P.2d A.L.R.3d Rule 958 of the California Rules of Court authorized State Bar establish the MCLE Pursuant to rule the Board of Governors program. of the State Bar detailed rules and that MCLE. regulations govern adopted These created three regulations five from of which exemptions program, (1) (2) are at issue here: retired officers and elected officials of the California, full-time State of at accredited law professors schools. claims
The two that it majority hypothesizes purposes justify exemp matter, tions: in the “as a are less categories general exempted ,” likely ... clients on a full-time basis . . . these represent matter) attorneys “(again, as are less ... to need general likely continuing ante, italics.) education . . . .” The (Maj. opn., p. original majority ah initio under our wrong state Constitution to hypothesize purposes Merlo, In Brown v. “a support exemptions. rejected highly (8 fictional Cal.3d at fn. made statutory We approach purpose.” that, Constitution, it clear under the state classifications “statutory [must] actual, ‘constructive,’ bear some substantial to an relationship legislative (Ibid.) (1978) 21 Bray We reaffirmed this purpose.” principle Cooper 604], Cal.3d 582 P.2d where we said that the Cal.Rptr. under consideration must be one that “can be ascribed purpose realistically in the record Legislature.” nothing legislative points “actual” it are the indicating purposes hypothesizes “realistic[]” see, and, are in fact as we shall purposes underlying exemptions, they highly unlikely.
Moreover, that the even if the State Bar had in mind actually purposes the classifications reflected in the violate majority hypothesizes, the state guaranties because overinclusive equal protection grossly and underinclusive and thus do not afford situated” “like “similarly persons *34 at California, supra, treatment.” & v. State 71 Cal.2d (Purdy Fitzpatrick p. of First, officers, 578.) be true and it well that retired state though may judges, full-time law are less than other active to professors attorneys likely repre- basis, clients on this very sent a full-time is one small selection only active and it is attorneys certainly whom description applies, ” “ Wood, ‘the most 25 Cal.3d at (Hays p. conspicuous example.’ Werner v. Southern Cal. etc. quoting Newspapers, supra, p. Cal.2d 132.) If the the who truly attorneys were purpose exempt basis, clients could a easily on the rule have included represent part-time broader that named much and more precise part-time exemption Moreover, out, as Justice the hypothetical Kennard expressly. points purpose makes no sense in of the more part-time attorneys exempting simply light consumer that underlies MCLE general purpose program: is as an attorney just dangerous as the consumer incompetent part-time Indeed, full-time Bar this fact attorney. recognizes State incompetent hour for state if work one removing they just exemption employees MCLE, (State Bar outside the of their state Com. scope employment. 6.1.4, Regs., 1995.) Guidelines: MCLE Rules & eff. Sept. § Second, verification, that any without majority speculates, empirical officers, retired state and full-time law are “less judges, likely professors ante, at ... to need education.” While this continuing (Maj. opn., “the it is a cites comforting questionable thought, premise. majority that level skills high legal qualifications generally required obtain a and it out that “the of a points judge as work position judge,” daily to and in the involves constant analysis ongoing exposure developments (Ibid.) law.” True. But high qualifications exposure ongoing develop in the one its consumer- way ments law are in which serves only ethics, MCLE also that requires attorneys study legal protection purpose. emotional management, and of substance abuse and prevention practice Court, Bar, (Cal. 958(c); rule MCLE Rules & Regs., distress Rules their 2.1), do not encounter in the course of subjects which judges usually § Furthermore, if less in need of continuing work. even are somehow judges does not it is education while as sitting judges, why explain after returned to they rational to assume are still less in need have they out, continuing Kennard purpose As Justice practice. points private lawyers knowledgeable education is not to ensure are competent first remain they competent start their but to ensure when practices, as the knowledgeable years progress. overinclusive More the classifications are once again grossly important, are not retired judges just and underinclusive. who Many some retired lack much as retired and at least judges expertise *35 to If the expertise them. majority imputes purpose exemptions education, were in need of truly attorneys who less exempt continuing the rule could have allowed easily satisfy taking statewide examination.
The same can be made about the arguments relative and knowledge of state and officers full-time law While expertise individuals professors. these may have more than groups legal expertise general, that, assertion as a more majority’s have would group, they legal expertise verification, fail to probably withstand in the areas of empirical particularly ethics, law and legal of substance practice management, prevention case, abuse and are, emotional distress. In any these employment categories best, basis for imperfect assessing And the legal expertise. majority’s assertion that state officers are likely in areas in which practice only is mere true expertise speculation about almost probably every in the state. attorney
If the of the are in fact purposes those that the has then hypothesized, the State Bar rules achieve those in a ludi- purposes crously impractical way, could though they achieve the same just easily rational, That purposes directly precisely. legislation is not approach and we exhibit for the disrespect when legislative process we such an impute Moreover, irrational to our approach we policymakers. undermine the integ- rity political process when such hypothesize highly unlikely in order to purposes uphold arbitrary self-serving exemptions. I dissent. for a
Appellant’s petition was denied rehearing October 1999. Kennard, J., Brown, J., were of the that the opinion should petition be granted.