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MARK D. GREENBERG et al., Plaintiffs and Appellants,
v.
THE STATE BAR OF CALIFORNIA et al., Defendants and Respondents.
No. A073839
In the Court of Appeal of the State of California
First Appellate District
Division Five
(Alameda County Super. Ct. No. 682931-9)
Honorable Sandra Margulies)
COUNSEL
Mark D. Greenberg, for Plaintiffs/Appellants
Marie M. Moffat, Diane C. Yu, Lawrence C. Yee, Dina E.
Goldman, Office of General Counsel, The State Bar of California;
Robert M. Sweet, for Defendants/Respondents
Filed January 26, 2000
Order filed February 8, 2000
ORDER
BY THE COURT:
On the court' s own motion, the written opinion which was
filed January 26, 2000, has now been certified for publication
pursuant to Rule 976(b) of the California Rules of Court, and
it is therefore ordered that it be published in the official
reports.
Jones, P.J.
OPINION
Appellants contend the trial court improperly granted
summary judgment on their claims against the State Bar of California
(the State Bar), challenging the constitutionality of the State
Bar' s Mandatory Continuing Legal Education (MCLE) program. We
must affirm the trial court' s ruling, under the compulsion of
the recent majority opinion of the California Supreme Court in
Warden v. State Bar (1999) 21 Cal.4th 628 (Warden),
which upheld the constitutionality of the MCLE program for California
attorneys. (See Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455 (Auto Equity).)
I. FACTS AND PROCEDURAL HISTORY
Appellants are California attorneys licensed to practice
by the State Bar. As such, they were required by Business and
Professions Code section 6070, and rule 958, California Rules
of Court, to comply with the requirements of the State Bar' s
MCLE program of continuing legal education classes for practicing
attorneys. The MCLE program required at the time that practicing
attorneys who were not specially exempted from the program must
attend 36 hours of education classes in every 36-month period,
including mandatory classes in the prevention of "substance
abuse" and "emotional distress" and the "elimination
of bias." (See rule 958, Cal. Rules of Court; Warden,
supra, 21 Cal.4th at pp. 634-637.) Courses are offered by
private "providers" certified by the State Bar, and
the course offerings vary widely, ranging from conventional lectures
on recognized legal subjects to ski trips, cruises, Eastern meditation
techniques, and other offerings. (See Ibid.)
Appellants filed this action against the State Bar in
the superior court, seeking declaratory and injunctive relief
from the requirements of the MCLE program. Appellants alleged
the MCLE program was unconstitutional as a violation of equal
protection principles, because the State Bar had no rational
basis for subjecting appellants to the MCLE requirements, while
exempting certain other groups or classes of California attorneys,
such as legislators, other state officers and employees, law
professors, and retired judges. Appellants also contended, as
a subsidiary argument, that the MCLE program violated their First
Amendment rights not to be subjected to compulsory governmental
reeducation programs and partisan political propaganda in favor
of a "political and ideological agenda" which appellants
did not share.
The trial court first entered an order which "transferred"
this case to the California Supreme Court for decision. The Supreme
Court, however, declined to accept this "transfer"
and remanded the matter to the superior court for decision.
Thereafter, the trial court ultimately rejected appellants'
claims, and granted summary judgment to the State Bar. Appellants
brought this timely appeal from that ruling. The matter was transferred
to this Division from Division Two of this District, because
we had recently found the MCLE program unconstitutional on equal
protection grounds, in the case which ultimately resulted in
the Supreme Court' s Warden decision. We then stayed this
appeal, in anticipation of the Supreme Court' s decision in Warden.
Our high court has now issued its decision in Warden,
in which a majority of the justices voted to uphold the constitutionality
of the MCLE program. The matter is therefore ripe for the issuance
of our opinion in light of Warden.
II. DISCUSSION
We are compelled by the majority opinion in Warden
to affirm the trial court' s ruling. (See Auto Equity, supra,
57 Cal.2d at p. 455.)
In Warden, the majority rejected an equal protection
challenge identical to appellants' and upheld as rational and
constitutional the challenged exemptions from the MCLE program
for certain groups of attorneys who exercised political power
during the legislative process, such as legislators, other state
employees, retired judges, and law school professors. (Warden,
supra, 21 Cal.4th at pp. 634, 651.)
Although we previously issued an opinion in Warden
in which we agreed with the well-reasoned criticism of the dissenting
opinions (see Warden, supra, 21 Cal.4th at p. 656 [dissenting
opinion of Kennard, J.]; see id. at p. 667 [dissenting
opinion of Brown, J.]), we are now bound by the decision of the
majority of our high court to affirm the judgment in favor of
the State Bar. (See Auto Equity, supra, 57 Cal.2d
at p. 455.)
At oral argument, appellants recognized the majority
opinion in Warden compels us to reject their primary argument,
challenging the constitutionality of the MCLE program on equal
protection grounds. However, appellants urge a second constitutional
infirmity not advanced or addressed in Warden, that the
MCLE program violates their First Amendment right to be free
of compulsory governmental propaganda in favor of an ideological
purpose with which appellants do not agree, and which is not
"germane" or rationally related to the legitimate goals
of legal education for practitioners. (See Keller v. State
Bar of California (1990) 496 U.S. 1, 13-14 (Keller).)
In light of Warden, Keller, and other precedents, we also
reject this related constitutional argument.
First, we note that the majority, and even the dissenters,
in Warden apparently agreed that the MCLE program requirements
were rationally related to the "consumer protection"
goals of the legislation, the needs of legal profession, and
legal practicioners' professional roles within that system, and
they thereby implicitly rejected the foundations of appellants'
First Amendment claims. (See Warden, supra, 21 Cal.4th
at pp. 645-647 [majority opinion], 654-656 [dissenting opinion
of Kennard, J.], 665-667 [dissenting opinion of Brown, J.].)
Thus, it seems highly likely that our high court would also find
the MCLE program did not violate appellants' First Amendment
rights, by simply requiring them to attend classes that are reasonably
related and "germane" to the nature of the legal profession.
(See Keller, supra, 496 U.S. at pp. 13-14.)
Appellants, however, focus their First Amendment argument
on the requirements that they attend a certain number of mandatory
MCLE classes relating to the general areas of the prevention
of "substance abuse" and "emotional distress"
and the "elimination of bias." (See rule 958, Cal.
Rules of Court) In light of Warden, we conclude that these
subjects are "germane" and rationally related to the
apparent consumer protection goals of the MCLE program.
The prevention of substance abuse and emotional illness
or stress among lawyers would, if accomplished, constitute a
worthy endeavor, which could spare clients from the obvious harms
attendant on substance abuse or emotional illness among lawyers
representing members of the public. Further, the elimination
of bias in representation and decision making, where improperly
based on irrelevant personal characteristics, has long been a
goal of the legal profession, and is germane and rationally related
to the special nature of law practice and the consumer protection
goals of the MCLE program. (See Warden, supra, 21 Cal.4th
at pp. 634-651; Thiel v. State Bar of Wisconsin (7th Cir.
1996) 94 F.3d 399, 405 [finding no First Amendment violation
from a number of mandatory State Bar programs, including a program
to assist lawyers suffering from substance abuse, and prevent
its recurrence].)[FOOTNOTE 1]
Moreover, in light of the relevant case law, we find
it difficult to understand appellants' argument that their First
Amendment rights are violated by a requirement that they merely
be passively exposed to classes relating to these subjects, without
being compelled to manifest any agreement or allegiance to their
goals or other political agendas. (See, e.g., Hamilton v.
Regents (1934) 293 U.S. 245, 262-265 [required training courses
in military science and tactics did not violate First Amendment
rights of conscientious objectors to violence]; Board of Education
v. Barnette (1943) 319 U.S. 624, 631-632 [students may not
be required to salute the American flag with a Hitler-style,
stiff-arm salute, but they may be required to attend civics classes
relating to political subjects, including the symbolism of the
flag]; Chaney v. State Bar of California (9th Cir. 1967)
386 F.2d 962, 964 [applicants to be California lawyers may constitutionally
be required to demonstrate familiarity with certain legal concepts,
including essay questions on "legal philosophy," even
though they might not be required to manifest allegiance to any
particular legal philosophy]; Tennison v. Paulus (9th
Cir. 1998) 144 F.3d 1285, 1287 [no First Amendment violation
to require students to attend classes in fashionable subjects,
despite claims that this interfered with certain students' "freedom
of mind" ].)[FOOTNOTE 2]
While we recognize appellants' desire to avoid exposure
to what they perceive to be a well-intentioned, but sometimes
patronizing, condescending, and inept educational agenda, we
also recognize that a majority of the members of our Supreme
Court voted in Warden to impose the requirements of the
State Bar' s MCLE program of continuing legal education classes
on the vast majority of California' s practicing lawyers. We
are bound by that ruling; appellants must therefore seek relief
from that ruling elsewhere. (Auto Equity, supra, 57 Cal.2d
at p. 455.) We conclude that appellants' constitutional challenges
to the MCLE program are unfounded.
III. DISPOSITION
The judgment of the trial court is affirmed, under compulsion
of Warden, supra, 21 Cal.4th 628. (See Auto Equity,
supra, 57 Cal.2d at p. 455.)
STEVENS, J.
We concur. JONES, P.J., and HAERLE, J.[FOOTNOTE *]
:::::::::::::::::::::::::::: FOOTNOTE(S):::::::::::::::::::::::::::::
FN1. In the proceedings below, the State Bar proffered
specific documentary evidence, which appeared to show that substance
abuse and emotional illness are prevalent among certain attorneys
who become the subject of disciplinary proceedings. The State
Bar also sought to introduce evidence that bias, especially gender
bias, has also been an ongoing problem for the legal profession.
Although appellants objected to the State Bar' s proffered evidence
as irrelevant, incompetent, and lacking in foundation, it is
unclear whether the trial court ruled on these objections. In
any event, we need not rely on the proffered specific evidence,
and disregard it here.
FN2. In addition, nothing would prevent appellants
from establishing their own course curriculum as providers of
MCLE training, and appellants could then comply with the MCLE
requirements by attending classes more in accord with their own
viewpoints on the required subjects.
FN*. Associate Justice, Division Two of the First District
Court of Appeal, assigned by the Chief Justice pursuant to article
VI, section 6 of the California Constitution.
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