Filed 3/13/97



Plaintiff and Appellant,



Defendants and Respondents.

Attorney Lew Warden (Warden) appeals from a judgment in favor of the State Bar of California (Bar) and two of its employees rejecting his constitutional challenges to certain aspects of the mandatory continuing legal education (CLE) program (Bus. & Prof. Code,1 §6070).

We conclude we must reverse the trial court's order, which granted judgment against Warden's constitutional challenge to his involuntary enrollment as an inactive Bar member, effectively suspending his license to practice law for failure to comply with the CLE program. We will hold the Bar's CLE program is unconstitutional because it violates the equal protection rights of members of the Bar who are not exempted from the program. The exemptions from the CLE program allowing currently licensed Bar members who are also officers and elected officials of the state, or retired judges, or certain professors of law, actively to practice law -- while representing clients in private practice without complying with the CLE program -- simply lack any constitutionally required rational basis. The CLE program as so constituted violates the equal protection rights of attorneys who are treated less favorably without any rational basis for the less favorable treatment. We, therefore, reverse and remand for entry of declaratory relief and an order reinstating appellant's right to practice law.


A. The CLE Program

In 1989, the Legislature enacted legislation sponsored by the Bar which ultimately provided, "The [Bar] shall request the California Supreme Court to adopt a rule of court authorizing the [Bar] to establish and administer a mandatory [CLE] program" which would require that "within designated 36-month periods, all active members of the [Bar] shall complete at least 36 hours" of approved legal education activities, including four hours of legal ethics and four more of either ethics or law practice management. (§6070, subd. (a).) If such a rule were adopted, "the [Bar] shall establish and administer" such a program, and any Bar member who failed to satisfy the program's requirements "shall be enrolled as a inactive member pursuant to rules adopted by the Board of Governors of the State Bar [Board]." (Ibid.)2

Although section 6070, subdivision (a) by its terms applied to "all active members of the [Bar],"3 the statute in its final form also provided a large number of exemptions from the CLE requirements, some of which are in issue here. Section 6070, subdivision (c) specified that "retired judges, officers and elected officials of the State of California," as well as full-time professors at accredited law schools, and full-time state employees acting within the scope of their employment, "shall be exempt" from the section's provisions.

The following year, our Supreme Court, required to conform, inter alia, with the statutory exemption requirements of section 6070, adopted California Rules of Court, rule 958 (rule 958).4 Rule 958(b) provided that the Bar "shall establish and administer a minimum [CLE] program, beginning on or after January 1, 1991," under rules which "may provide for," among other things, "staggering of the education requirement for implementation purposes . . . ." Rule 958(c) contained all the exemptions required by section 6070, added an exemption for full-time federal employees acting within the scope of their employment, and required that eight of the thirty-six hours of CLE "shall address legal ethics or law practice management, four hours of which shall be in legal ethics." Furthermore, "Each active member shall report his or her compliance to the [Bar] under rules adopted by [its Board]." (Rule 958(c).) In all other salient respects, rule 958 tracked the mandate of section 6070.

The Bar's Minimum CLE Rules and Regulations (regulations) provide the purpose of the CLE requirement is "to assure that, throughout their careers, California attorneys remain current regarding the law, the obligations and standards of the profession, and the management of their practices." (§1.0.) In addition to the ethics and law practice management requirements, the regulations expanded on section 6070 and rule 958 by specifying that of each thirty-six hours of educational activities at least one "shall relate to prevention, detection, and treatment of substance abuse and emotional distress," and another one hour "shall relate to elimination of bias in the legal profession." (Regs., §§ 2.1, 2.1.2, & 2.1.3.) Compliance is established by a self-reporting procedure. (Id., §12.0.)

The regulations defined exempt state and federal employees as those "who do not practice law in California except" as state or federal employees. (§§6.1.4 & 6.1.5.) Section 6.3 established a good cause exemption from or modification of the requirements.5 Section 14.2 of the regulations provides that enrollment as an inactive member for failure to comply with CLE requirements "is administrative in nature and no hearing is required."

The Bar has issued guidelines "as advisory interpretations of the [CLE regulations]" (guidelines) which, inter alia, amplified the definitions of certain categories of attorneys exempted from CLE requirements.6 (See guidelines, 1st ¶.)

B. Warden's Refusal to Comply

Warden, who was then 73 years old, was required as an actively enrolled member of the Bar to comply with the CLE program in accordance with section 6070. On April 23, 1993, the Bar sent him a noncompliance 60-day notice (regs., §13.2), warning that he would be enrolled as an inactive member if he did not submit proof of compliance by June 22. On June 29, he was sent a final notice, advising him that on July 17 his name would be submitted to the Board with the recommendation that he be enrolled as an inactive member of the Bar effective July 19, 1993, until he complied with his CLE requirements.

On July 9, 1993, Warden wrote to the CLE compliance coordinator of the Bar contending that the CLE program was unconstitutional, and that he could not be forbidden from practicing law for refusing to comply. On July 23, a senior administrative assistant of the Bar's Legal Unit acknowledged receipt of Warden's letter, which had been referred to the Bar's Office of General Counsel for response. On July 30, the Bar sent Warden a notice of enrollment on administrative inactive status, advising him that effective July 19, 1993, he was ineligible to practice law until the Bar received proof of CLE compliance.

On September 23, 1993, Warden wrote a letter threatening to sue the Bar for damages if it did not "forthwith recall [its] suspension order." On October 22, Assistant General Counsel Rossi responded to Warden's letters by outlining the manner in which the CLE program, including the noncompliance provisions, had been "developed at the direction of the Legislature and the California Supreme Court." She also indicated Warden's October 7 "'Claim of Damage'" had been forwarded to the Board for review.

After the Board denied his claim, Warden filed a complaint against the Bar and its employees for compensatory and punitive damages, declaratory relief, injunction, and mandate. Warden alleged, inter alia, that the CLE program, as "created" and as applied, violated his right to equal protection, by exempting certain members of the Bar from its requirements.

The Bar moved for summary judgment or summary adjudication of issues. (Code Civ. Proc., §437c.) After a hearing, the court granted summary adjudication of all seven issues the Bar had placed before it, thus disposing of all aspects of Warden's constitutional challenge. Warden filed a motion for reconsideration. (Code Civ. Proc., §1008.) After the court filed its summary judgment order, Warden filed a new trial motion. (Code Civ. Proc., §657.) After hearings, the court denied both of Warden's motions. Warden filed a timely notice of appeal.


Warden contends the Bar's CLE program and its exemptions violate his equal protection rights.7 The Bar contends its CLE program and the exemptions thereto may only be reviewed to determine whether they have a rational basis, and the Bar suggests the program and some of its exemptions may have a rational basis. We agree with the Bar regarding the scope of review, and apply only a lenient "rational basis" test. Even under that test, however, we find no rational basis sufficient to support the CLE program and its exemptions.

A. Standing

We face an initial question as to standing. The Bar did not contend in either the trial court or in its briefs filed on appeal that Warden lacked standing to challenge the CLE program and its exemptions on equal protection grounds. On our own motion, we requested supplemental briefing on this issue. After reviewing the supplemental briefing by Warden and the Bar, we conclude Warden does have standing to challenge the CLE program and its exemptions on equal protection grounds, because he alleges his own rights to equal protection were violated by the operation of the program and exemptions from the program for other attorneys, which taken together unfairly discriminated against him without any rational basis for the discrimination.

In the leading case from this district regarding the standing requirement for mounting an equal protection challenge, Burns v. State Compensation Ins. Fund (1968) 265 Cal.App.2d 98, the appellant made an equal protection challenge to certain exemptions contained in a state insurance law, which the appellant contended were arbitrary and without a rational basis and, therefore, violated his constitutional rights. Burns stated the standing requirement for such an equal protection challenge as follows: "The first issue to be determined is whether appellant possesses the requisite standing to raise this constitutional issue. Broadly stated, this requirement is one that a party attacking the constitutionality of the statute must show some actual or threatened injury. Accordingly, it is often stated that where, as here, a statute is alleged to be discriminatory, only a member of a class discriminated against can attack it. However, where the complaining party is injured by the legislation, although not a member of the class discriminated against, he may raise the question. [Citations.]" (Pp. 104-105.)

Appellant has standing to mount an equal protection challenge under this test. He is a member of the class allegedly discriminated against, which is composed of attorneys subject to the program and not possessing any exemption from it. He has also been injured by the CLE program, because it was the basis for the Bar's action in abrogating his legal ability to practice law.8

The federal Supreme Court has reached the same result regarding the standing of a party to mount an equal protection challenge to the operation of a certain exception from the coverage of the social security laws, even though it was contended he lacked standing to challenge the favorable treatment accorded to others by the statutory scheme since by law he could not be accorded any more favorable treatment, even if his challenge succeeded. (Heckler v. Mathews (1984) 465 U.S. 728, 737-740.) "In this case, appellee claims a type of personal injury we have long recognized as judicially cognizable." (Id. at p. 738.) The high court also observed that a party was not deprived of standing merely because the outcome of the suit might result in withdrawing the more favorable treatment accorded to others without directly benefiting the party treated less favorably: "To the contrary, we have noted that a court sustaining such [an equal protection] claim faces 'two remedial alternatives: [it] may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by the exclusion.' [Citations.] For that reason, we have frequently entertained attacks on discriminatory statutes or practices even when the government could deprive a successful plaintiff of any monetary relief by withdrawing the statute's benefits from both the favored and excluded class." (Id. at pp. 738-739.)

The Bar erroneously relies on our decision in Searle v. City of Berkeley Rent Stabilization Board (1988) 197 Cal.App.3d 1251, 1256. There, we held that purchasers of real property lacked standing to challenge a regulation which applied only to the sellers of real property, because the purchasers were not in the class allegedly discriminated against, and were not injured by the regulation in question. The opposite is true here, where appellant is plainly within the class allegedly discriminated against and subjected to unequal treatment without any rational basis, and where appellant has plainly suffered injury through operation of the CLE program, which was the basis for suspending appellant's right to practice law. We conclude appellant has standing here.

B. Scope of Review

Warden contends we must review the CLE program under the stringent "strict judicial scrutiny" test. The Bar contends we may review the program only under the more lenient "rational basis" test. We agree with the Bar on this point.

Warden urges a higher standard, the strict scrutiny test, should be applied, because the Bar's CLE program infringed his fundamental right to earn a living by practicing as an attorney. (Cf. Supreme Court of New Hampshire v. Piper (1985) 470 U.S. 274, 284-288 (Piper) [A rule against practice by out-of-state attorneys was invalidated, because it discriminated against nonresidents and thereby infringed fundamental rights to equal treatment regardless of state residency under the privileges and immunities clause.].) However, for general equal protection purposes, in the absence of a suspect classification, there is no fundamental constitutional right to practice law; and a statutory classification on this subject will be upheld if it meets the "'rational relationship'" test. (Lupert v. California State Bar (9th Cir. 1985) 761 F.2d 1325, 1327-1328 & fn. 2.)

The Bar correctly asserts that when a statutory classification is challenged on equal protection grounds, and the statutory classification is not based, inter alia, upon suspect grounds such as race, the statute's classification scheme should simply be analyzed to determine whether it bears a rational relationship to a legitimate state purpose. (See Del Monte v. Wilson (1992) 1 Cal.4th 1009, 1014 (Del Monte).)

However, this does not mean the courts may abdicate their responsibility to conduct "'"a serious and genuine judicial inquiry into the correspondence between the [legislative] classification and the legislative goals."'" (Cooper v. Bray (1978) 21 Cal.3d 841, 848 (Cooper), italics added by Cooper court, quoting from Newland v. Board of Governors (1977) 19 Cal.3d 705, 711.)9 In making this "'serious and genuine judicial inquiry,'" we must determine whether the legislative classifications established by the CLE program are rationally related to the purposes of the program, in protecting the public from lawyers who are active members of the bar, representing individual clients, by furthering their education and training in the law, legal ethics, or law practice management.10

C. The CLE Program And Its Exemptions Are Unconstitutional Violations of Equal Protection

The Bar contends its CLE program and the exemptions thereto are designed to educate lawyers who represent individual clients in their practices, by keeping them current in legal developments and educating them in legal ethics, law office management, and the special problems of prevention of emotional distress or substance abuse which may arise among those who represent individual clients. Assuming without deciding that these may all be worthy goals bearing a rational relationship to a legitimate state interest (see Verner v. State of Colorado (Verner) (D.Colo. 1982) 533 F.Supp. 1109, 1118, affd. (10th Cir. 1983) 716 F.2d 1352, 1353 [The Colorado CLE program with no exemptions for state lawmakers, retired judges, or law professors had a rational basis.]), even under the relatively deferential standard of review we apply, the exemptions implicated here which are granted from participation in the California CLE program have no rational relationship to these legitimate state interests.

Under section 6070, subdivision (c), lawyers who actively practice law are exempt from the requirements of the CLE program if they are state officers or elected officials such as legislators, retired judges, full-time professors at law schools, or employees of the state or federal governments who do not represent other clients. While a rational relationship may arguably exist between the goals of the legislation and the exemptions for public employees who do not represent individual clients, we fail to see such a rational relationship in the three exemptions for state officers or elected officials, retired judges, and full-time professors who do actively represent individual clients. All of these exempted persons may represent individual clients in private practice without complying with the CLE requirements; and their exemptions do not become inapplicable (as do the exemptions for state or federal employees acting within the scope of their employment) if they act as lawyers representing individual clients.

We discern no rational basis for these three exemptions. The fact that a lawyer wins an election or is appointed to a state office does not mean that the lawyer is necessarily current in recent legal developments, well versed in legal ethics, or an expert in law office management. If a state officer or elected official, a retired judge, or a law professor represents individual clients in private practice, the same legitimate state interests of the public protection of such clients apply; yet these lawyers, without any ascertainable rational basis, are not required to comply with the CLE requirements which their opponents must fulfill.

Nothing in section 6070 or its legislative history shows any rational basis for this discrimination in favor of officers and elected officials of the state, retired judges, and law professors. The only explanation for the exemption accorded to state legislators as "[e]lected officials," for instance, is an indication that the sponsor of the legislation was required to add an exemption applicable to legislators because of the opposition thereto from legislators who "'didn't want to be dragged into a classroom.'" (Sen. Bill No. 905 (1989-1990 Reg. Sess.) (Bill 905) Off. Local Gov. Affairs, Enrolled Bill Rep. (Sept. 25, 1989) p. 2.) The legislative history also seems to indicate the exemptions for retired judges and law professors were added in response to similar sentiments on the part of retired judges and law professors. Appellant and presumably numerous other attorneys also do not want to be "'dragged into a classroom,'" so this is not a rational basis upon which to distinguish between appellant and the exempted lawyers.

If these CLE program exemptions provided (as do the exemptions for state and federal workers acting within the scope of their employment) that the exemption is lost whenever an otherwise exempt lawyer represents individual clients in private practice, their validity might arguably withstand the rational basis test of constitutional equal protection. In such a case, the Bar might well assert that the legitimate state interest in protecting members of the public from representation by lawyers who were unfamiliar with current law, legal ethics, or the requirements of law office management would support both the CLE program and its exemptions. However, that is not the case here. The very state interest cited by the Bar in support of the CLE program and its exemptions is violated by these exemptions.

In Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 291-301 (Raffaelli), our Supreme Court faced a closely analogous problem, where an equal protection challenge was mounted to a section of the Business and Professions Code, and a rule of court adopted pursuant thereto, which prevented resident aliens from becoming members of the Bar. Our high court invalidated the statute and rule of court as violative of equal protection principles, because they imposed a discriminatory scheme of classification without any rational basis: "We conclude that the challenged classification does not have 'a rational connection with the applicant's fitness or capacity to practice law.'" (Id. at p. 301.)11 These requirements violated equal protection by regulating Bar membership without any rational basis, since the discrimination against resident aliens who are not citizens, versus naturalized American citizens, was arbitrary and did not serve the enunciated goals of protecting the public from unethical or absconding attorneys. (Id. at p. 299.) The same is true here. The statutory discrimination in section 6070 and the parallel provisions of rule 958, adopted pursuant to the statute and containing the statutorily-mandated exceptions, do not pass muster on equal protection grounds because they lack a rational basis. (See also Schware v. Board of Bar Examiners (1957) 353 U.S. 232, 239, fn. 5 ["[I]t is sufficient to say that a person cannot be prevented from practicing [law] except for valid reasons."].) We are required to eliminate legislation or rules of court which violate equal protection by irrationally discriminating against appellant in depriving him of his right to practice law. (Raffaelli, supra, 7 Cal.3d at p. 301; cf. also People v. Hall (1994) 8 Cal.4th 950, 963 [The court invalidated a rule of court which improperly limited the sentencing discretion of trial judges.]; California Court Reporters Assn. v. Judicial Council of California (1995) 39 Cal.App.4th 15, 33-34, review den. [A rule of court which eliminated the need for court reporters in transcribing proceedings was invalidated.].)

Our Supreme Court faced another analogous problem in D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22-24. There, the statutory classification under attack on equal protection grounds was an enactment forbidding the licensing of doctors of osteopathy as physicians, regardless of their individual qualifications, allegedly to protect the public, although in fact the record showed doctors of osteopathy were no threat to the public and had been forbidden to practice medicine for reasons having no rational relationship to a legitimate state interest. Our Supreme Court held the legislative classification invalid on equal protection grounds, and ordered that doctors of osteopathy be considered for licensure as physicians. Thus, the constitutional requirement that state regulation of the profession bear a rational relationship to a legitimate state interest imposes upon the courts the duty of fairly testing whether the state classification scheme is consistent with the asserted state interest, here the need to protect the public.

Likewise instructive is the decision of our Supreme Court in Hays v. Wood (1979) 25 Cal.3d 772, 786-795 (Hays). In Hays, the high court invalidated on equal protection grounds a statute which imposed more onerous requirements on certain attorneys in public life than on public figures from other professions. The high court subjected this classification scheme to the rational basis test and found it invalid: "For reasons to be stated, we fail to discern the requisite rationality in the classification here adopted." (Id. at p. 787.) The high court then rejected the rationale (also urged in part by the Bar in this case) that the discriminatory legislation could be justified on the basis that the Legislature could exempt certain classes as a part of "'striking the evil where it is felt most.'" (Id. at p. 791, quoting from Werner v. Southern Cal. etc. Newspapers (1950) 35 Cal.2d 121, 132.) As the Hays court explained, the Legislature's "decision as to where to 'strike' must have a rational basis in light of the legislative objectives." (25 Cal.3d at p. 791.) We discern no such rationality in the decision to "'strike'" out against almost all California attorneys, while exempting for no rational reason a relatively small number of powerful or politically well connected lawyers. Just as it would violate equal protection to impose a tax upon all persons, but exempt that relatively small number of persons who served in the Legislature or other important positions, we find no rational basis for the CLE exemptions in issue here.

The decision of the federal Supreme Court in Piper, supra, 470 U.S. at pages 284-288 is also instructive, even though the case was decided under the guarantee of equal treatment embodied in the privileges and immunities clause rather than on equal protection grounds. There, the federal Supreme Court found state rules regulating the practice of law and limiting it to state residents were unconstitutional because they were not supported by reasons with sufficient "'substantiality'" (id. at p. 285) in terms of protection of the public from unethical lawyers. The same is true here, where we consider the CLE program and its exemptions, which without any rational basis would allow, as to certain favored attorneys, the perceived evil which the CLE program seeks to prevent. We also observe that our ruling is fully consistent with the recent holding of our Supreme Court in People v. Ngo (1996) 14 Cal.4th 30. In Ngo, our Supreme Court held that compliance with the CLE program was not necessary in order to achieve professional competence, and observed that there was a "'lack of any statistical evidence clearly demonstrating a direct, positive correlation between [CLE] and attorney competence.'" (P. 37.) Similarly, it seems obvious that no statistical evidence demonstrates a rational basis for concluding a currently licensed lawyer, who is a retired judge from any state, an officer or elected official of this state, or a professor of law, is consequently more competent than other lawyers in such matters as legal ethics or law office management. Nor does statistical evidence provide a rational basis to support the proposition that a retired judge of five years or more bench experience (see fn. 14, post) primarily devoted to routine criminal matters, for example, who then commences a private law practice should be exempt from CLE requirements, the purpose of which, inter alia, is to ensure his currency in legal matters, while a lawyer who has been in private practice continually for the same or a longer period must meet those requirements for the same purpose.

The Bar also suggests, despite an absence of support in the legislative history or the proceedings below, that the exemptions to the statute may be justified on the unusual theory that the exempted lawyers are generally less likely to represent individual private clients than other lawyers who are not exempt. For multiple reasons, we must reject this theory postulating a claimed rational basis to support the exemptions in question.

First, as heretofore noted, this theory finds no support in, and is inconsistent with, the legislative history of the statute. That history indicates the exempted groups were added in piecemeal fashion, benefiting certain lawyers who were serving in the Legislature or otherwise and did not wish to be "'dragged into a classroom.'" (Bill 905, Off. Local Gov. Affairs, Enrolled Bill Rep. (Sept. 25, 1989) p. 2.) The exemptions were not designed to benefit all lawyers who do not represent individual clients, and in fact apply to the exempted lawyers regardless of the number of clients they represent.

Second, this theory is inconsistent with the plain language of section 6070, which applies to all nonexempt lawyers regardless of whether they represent few or many clients. There are numerous lawyers who do not ever represent individual private clients, and yet who are not exempted from the law. Lawyers who are employed by cities and counties, by district attorneys, by school districts, by banks and other corporations, or by universities and colleges, are all covered by the statute, without any exemption. It is clear that the purpose of the exemptions was not simply to exempt those lawyers who do not represent individual private clients, or who represent only a few clients, or only do so infrequently.12

Third, the record before us does not support the notion that active members of the bar in the exempted categories represent fewer clients than other lawyers. While there may be some lawyers such as legislators, retired judges, professors, and others who do not actively represent any individual clients, they generally opt for inactive status, and as such are exempted from CLE requirements. The exemptions in question here, however, would exempt certain actively enrolled lawyers; e.g., a prominent civil litigator with numerous clients who also happens to be a legislator, a class action specialist who happens to also be a law school professor,13 or a senior partner in a law firm who is also a retired judge14 would all be exempt. By no stretch of the imagination can the exemptions for these lawyers be rationally justified on the grounds that they do not represent individual clients.15

Moreover, our duty under Cooper, supra, is to conduct a "'serious and genuine judicial inquiry'" (21 Cal.3d at p. 848) -- not merely to accept whatever after-the-fact rationalizations might be proffered by the Bar in arguments in briefs, without support in the legislative history or the record under review. Neither the legislative history of section 6070 nor the record before us supports the Bar's theory; no member of the Bar or other person involved in the design of the CLE program was willing to declare under penalty of perjury that the exemptions were based upon this theory, because they plainly were not.

Thus, section 6070 as implemented by rule 958 violates the equal protection clauses of the Fourteenth Amendment of the federal Constitution and article I, section 7 of the California Constitution.

D. The Proper Remedy

We and our concurring and dissenting colleague agree that the exemptions of section 6070 are unconstitutional as to Warden, and that he is entitled to be reenrolled on the Bar's active list.

Our disagreement centers on the proper relief to be otherwise ordered. The Bar suggests by a footnote in its brief, and our colleague also suggests, that we may judicially rewrite section 6070 by "excising the offending exemptions" (dis. opn., post, at pp. 1-2); i.e., at least those exempting from CLE requirements retired judges, officers and elected officials of this state, and full-time law professors, enrolled by the Bar as "active" attorneys. We cannot agree with this suggestion, for the following reasons.

1. Underlying Principles Implicated in the Judicial Reformation of an Unconstitutional Statute

We all recognize that California courts have in some cases reformed a statute to preserve its constitutionality. The bedrock general principles courts must heed before rewriting a statute to preserve its constitutionality are these:

a. Such judicial action is a "comparatively drastic alternative, to be invoked sparingly . . . ." (Arp v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 395, 407 [The court would not reform a constitutionally infirm statute which denied equal protection to widowers who lacked a widow's statutory presumption of total dependency on a deceased spouse, for purposes of computation of workers' compensation benefits.].)

b. "[T]he judicial role in a democratic society is fundamentally to interpret laws, not to write them." (Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 675 (conc. opn. of Werdeger, J.) (Kopp).)

c. The court considering such judicial reform of an unconstitutional statute can only do so when it can reach both of two conclusions with confidence: "(i) [I]t is possible to reform the statute in a manner that closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred such a reformed version of the statute to [judicial] invalidation of the statute." (Kopp, supra, 11 Cal.4th at p. 670, italics added.)

d. Judicial reformation of statutes in a way which does not closely effectuate clearly articulated legislative policy is inappropriate under these standards. (Kopp, supra, 11 Cal.4th at p. 654.) Judicial reformation of an unconstitutional statute is improper in any event when inconsistent with the legislative intent or when that intent cannot be ascertained. (Id. at p. 643.)

In applying these standards to the constitutional equal protection issue apparent in section 6070, we turn again to facets of its legislative history as a first step in deciding if the conclusions Kopp posits can be confidently reached by excision of the section 6070 exemptions for officers and elected officials of the state, retired judges, and full-time law professors.

2. The Legislative History of Section 6070

By way of background, we note that prior to the passage of the legislation adding section 6070 (Stats. 1989, ch. 1425, §2, pp. 6307-6308), Bar members had never been required to participate in CLE. Such legal education was promulgated on a voluntary basis for many years through programs offered by the Continuing Education of the Bar and its affiliated agencies.

The new legislation, as here pertinent, was introduced by Senator Davis on March 6, 1989. (Bill 905, 1 Sen. Final Hist., p. 630.) As originally introduced, it was egalitarian in nature, imposing the burden of CLE on "all active members of the [Bar]" with no exemptions. (Bill 905 (Mar. 6, 1989) §1.) It mirrored the Colorado program whose validity the Bar mistakenly relies on , since that program contained none of the exemptions added later to the California legislation, as we discuss post. (Verner, supra, 716 F.2d at p. 1353.)

The legislation did not survive long in this unamended form. On March 29, 1989, the matter was set for a hearing before the Committee on the Judiciary on May 16; that hearing, however, did not take place. Senator Davis canceled the hearing five days before it was to take place; and rather than proceed with a hearing on the unamended version of Bill 905 with no exemptions, he instead amended the measure at the behest of his colleagues to add exemptions. (1 Sen. Final Hist., p. 630.)

That Senate amendment of June 1, 1989, to Bill 905 exempted "officers, elected officials, and full-time employees of the State of California, or of any political subdivision thereof, acting within the scope of their employment . . . ." (§1, italics added.)

When Bill 905 arrived in the lower house, the Assembly amended the exemption provision, adding exemptions for retired judges and full-time law professors at accredited law schools; it deleted the exemptions the Senate had provided for full-time employees of state political subdivisions acting within the scope of their employment -- e.g., career district attorneys, city attorneys, and county counsel -- while retaining the exemptions for state employees similarly situated. ((Aug. 30, 1989) §1) The Legislature passed Bill 905 with the Assembly amendments intact. (1 Sen. Final Hist., p. 630.)

In sum, the Legislature was presented, in the original Bill 905, with the opportunity to enact CLE without the exemptions we find deny constitutional equal protection to Warden. The Legislature rejected that legislative opportunity, further abandoning it by enacting those very exemptions.

The Bar and our dissenting colleague contend we may nevertheless excise those exemptions to return the CLE program to the status which the Legislature has already considered and declined to adopt. In this regard, the case at bench is inapposite to Welsh v. United States (1970) 398 U.S. 333 (Welsh) and the concurring opinion of Associate Justice Harlan (id. at pp. 344-367), which our Supreme Court in Kopp, supra, recognized as the seminal authority for the judicial power of reformation to preserve constitutionality (11 Cal.4th at pp. 627-629).

Welsh involved a federal statute extending draft exemption to conscientious objectors on religious grounds. Justice Harlan, finding the statute unconstitutionally underinclusive, approved the extension of the statutory conscientious objector benefit to persons who claimed that status on nonreligious grounds. He rationalized this statutory reformation because he found Congress's prior "longstanding" tradition of extending draft exemption to conscientious objectors indicated the Congress would prefer extension of the conscientious objector benefit rather than its exclusion. (398 U.S. at pp. 365-366 (conc. opn. of Harlan, J.).)

Section 6070 had no "longstanding" legislative substance or prior tradition to indicate any past legislative preference for any CLE program at all; and most critically, there is no historical basis to any claim that the Legislature would have preferred the extension of the burden of CLE training to classes of lawyers it specifically exempted therefrom, after rejecting the clear opportunity in the original version of Bill 905 to do so.

Nothing exists in the legislative history of section 6070, or any legislative tradition concerning CLE of the Bar, causing us to conclude with confidence that excision of its exemptions from CLE would "closely effectuate[] policy judgments clearly articulated by the enacting body," and that the Legislature would have preferred its rejected original version of the statute sans exemptions to its judicial invalidation. (Kopp, supra, 11 Cal.4th at p. 670.)16

3. The Mere Enactment of a Statute Does Not Allow Us to Judicially Reform It

The Legislature's enactment of an unconstitutional statute on a given subject does not per se establish with confidence that the Legislature would prefer judicial reformation over invalidation to cure the constitutional defect. The excision proposal necessarily assumes we may judicially reform the unconstitutional aspects of section 6070 challenged by Warden, by extending the CLE burdens it imposes to classes of lawyers exempted therefrom by the Legislature, simply because the Legislature legislated on the subject of CLE.

The rationale of that position is this: A confident and conclusive presumption arises from the mere fact of section 6070's enactment that the Legislature would have extended the burden of CLE requirements to classes of lawyers it specifically exempted therefrom, had it foreseen those exemptions would result in an unconstitutional statute; i.e., that in enacting section 6070, the Legislature evinced a desire to establish CLE albeit with certain exemptions; and if section 6070 is declared unconstitutional rather than reformed to extend the burden of CLE to the lawyers the Legislature specifically exempted therefrom, that legislative policy decision to enact CLE will be thwarted.

An identical rationale for reformation of statutes enacted by initiative was rejected by a majority of our Supreme Court in Kopp. In Kopp, certain provisions of Proposition 73, an initiative campaign reform measure involving Government Code sections 85301-85304 limiting the amount and pace of political contributions, had been declared unconstitutional in Service Emp. Intern. v. Fair Political Prac. Com'n (9th Cir. 1992) 955 F.2d 1312 (cert. den. 505 U.S. 1230). Our Supreme Court first held Service Emp. Intern. did not, on full faith and credit grounds, proscribe its authority to judicially reform the initiative statutes to cure their unconstitutionality. Proceeding to that judicial reform issue, a majority of the Kopp justices found that such authority should not be exercised because it was not possible to determine with confidence that the electorate would have preferred the reformation proposed by the dissenting justices over invalidation.17

The dissenters' rejected position in Kopp was predicated, in part, on the same rationale the dissent posits here: Judicial reformation should be undertaken because the initiative measure showed voters clearly wanted political contribution limits; and without the reformation the dissenters urged, "'invalidating a statute would be far more destructive of the electorate's will.'" (Dis. opn., post, at p. 5.) Kopp, of course, rejected reformation of the law before the court on that basis, even though that case, unlike this one, involved an initiative passed by the "electorate." (11 Cal.4th at pp. 670-671.)

We emphasize again our Supreme Court's observation that "close and careful [judicial] scrutiny" must be exercised in determining whether the body enacting unconstitutional legislation would have preferred "a given reformed construction to invalidation." (Kopp, supra, 11 Cal.4th at p. 661, fn. 58.)

"[C]lose and careful scrutiny" is not generated by the simple assumption that the Legislature, because it legislates, albeit unconstitutionally, on a given subject such as CLE, always thereby also expresses a clearly inconsistent desire for a judicially reformed statute on that same subject, rather than invalidation of the legislation. Close and careful scrutiny by the judiciary is not so simple. If it were, courts on that basis would arguably have carte blanche to judicially reform all unconstitutional legislation on any subject legislated upon. Thus, no statute would ever be declared unconstitutional, with a judicial reservation of the opportunity of the Legislature to readdress the subject on which it enacted an unconstitutional statute.

We must rely instead in this analysis on the applicable teachings of Kopp, on which (as we discuss in the next section) not only a majority, but all the justices seem to have agreed. (See fn. 17, ante.) A statute may not be judicially reformed to preserve its constitutionality unless the court can with confidence conclude: Such reformation closely effectuates policy judgments clearly articulated by the enacting body, and the enacting body would have preferred the reformed construction to invalidation of the statute. Neither of these conjunctive inquiries is affirmatively answered by the simple observation that because the Legislature unconstitutionally acted on a particular subject it must have preferred judicial reformation to revocation.

4. No Authority Supports Reform of Underinclusive Legislation by Extending Its Burdens Rather Than Its Benefits

California cases judicially reforming, instead of invalidating, underinclusive statutes violating the equal protection clause have uniformly done so by extending the benefits of such statutes to those excluded therefrom. No such statute has been so reformed by extending the burdens it imposes to persons expressly exempted from those burdens by the Legislature.

We begin this portion of our analysis by restating that the issue here is not solely whether we lack the authority to reform an unconstitutional statute. Rather, the issue is whether the statute may be reformed under the Supreme Court's teachings summarized in Kopp: Can we affirmatively reach the conclusions that the exemption excision proposed by the Bar effectuates a policy judgment the Legislature clearly articulated, and that the Legislature would have preferred the excised version of the statute to its invalidation? (11 Cal.4th at p. 670.)

This case involves legislative authorization imposing for the first time the burden of CLE training on certain California lawyers as a condition to practicing law. Adoption of the Bar's proposal, to excise the exemptions of classes of attorneys from CLE, plainly would have the effect of extending the burden of CLE to other classes of lawyers that the Legislature specifically declined to so burden when presented with that opportunity.

We recognize that in some equal protection cases, distinguishable from this case, a court's extension of statutes reflects a judicial effectuation of "broad legislative policy judgments granting benefits to a named class, while declining to respect other policy judgments improperly limiting those benefits to the named class." (Kopp, supra, 11 Cal.4th at p. 652, italics added.) However, section 6070 is a statute that conferred burdens, not benefits, on lawyers; and the excision reform the Bar posits extends only the burden of CLE to exempted classes of lawyers.

We have found no case, and neither the Bar nor our dissenting colleague present one, where an underinclusive statute violating the equal protection clause has been judicially reformed, by excision or otherwise, to extend its burdens to persons the Legislature has expressly exempted therefrom.18 The reason is obvious in the case at bench. The imposition of legal burdens such as CLE is generally an exclusive function of the Legislative through statutory enactment, not a function of the judiciary. When the Legislature has expressly granted exemptions from the burdens its enactment imposes, neither the Kopp principles applicable to judicial reform of an unconstitutional statute, nor common sense, supports the transparent legal fiction that a diametrically opposed judicial inference thereby exists: that the Legislature nonetheless clearly articulated a contrary policy judgment to impose such burdens on the very classes it exempted therefrom.19

We turn now to review of some of the cases dealing with equal protection and extension of benefits and other cases relied on by the Bar and the dissent. First, Hays, supra, 25 Cal.3d 772, the only case cited by the Bar in support of its excision theory, was a case wherein the Political Reform Act of 1974 (Gov. Code, §81000 et seq.) had set at $1,000 the threshold for public disclosure of any payment made by clients of attorneys and brokers who were public officials. Public officials in other businesses were required to disclose such names of clients only where payments for professional services reached $10,000. Hays, while upholding the statutory concept of disclosure requirements, reformed the statute to extend to attorneys and brokers the benefit of the higher disclosure level of $10,000 which all other public officials were given. Hays did not extend the burden of compliance with the more onerous legislation on all public officials, and Hays did not support such a theory. Nor do any of the cases cited by our dissenting colleague.

Hayes v. Superior Court (1971) 6 Cal.3d 216, 223-224, on which the dissent relies, is also inapposite. There the court reformed a statute to extend its benefits to out-of-state convicts convicted in California who were previously excluded therefrom. "[A] reviewing court may correct a discriminatory classification by invalidating the invidious exemption and thus extending statutory benefits to those whom the Legislature unconstitutionally excluded." (Id. at p. 224, italics added.)

Santa Barbara Sch. Dist. v. Superior Court (1975) 13 Cal.3d 315, 331, which the dissent cites in passing, did not involve the reformation of a statute; it involved the constitutionality of separate statutes enacted by an initiative measure containing a severability clause, and is inapposite for that reason alone. Further, Santa Barbara was not a case in which a statute was judicially reformed so as to extend statutory burdens to persons previously specifically exempted therefrom, and lends no support to that theory. (Accord, Welsh, supra, 398 U.S. at pp. 361-367 (conc. opn. of Harlan, J.).)20

The public "'benefit'" argument of the dissent for excision simply reiterates, in slightly different form, the proposition we have already rejected, that section 6070 should be reformed simply because CLE legislation was enacted. It too ignores the Kopp court's rejection of an identical contention, and implicitly rejects the Kopp rules stating the criteria a court must apply when urged to judicially reform an initiative or legislative statute.

Moreover, the language the dissent relies on from Gerken v. Fair Political Practices Com. (1993) 6 Cal.4th 707, 721-722 (conc. opn. of Baxter, J.), decided prior to Kopp, does not support the argument that "excision" (dis. opn., post, at p. 2) should be applied to section 6070 to achieve some portion of the legislative purpose in legislating upon CLE. The initiative measure under consideration in Gerken contained a severability clause (6 Cal.4th at p. 714), unlike the legislation in this case. To paraphrase Gerken, severability of a statute depends upon whether the remainder of the statute, postseverance, would have been adopted by the Legislature had it foreseen the statute's partial unconstitutional invalidity. (Pp. 721-722.)

First, this statement does not establish the criteria to be applied by a court in concluding with confidence whether the statute as judicially modified would have been adopted by the Legislature. Kopp does.

Second, Justice Baxter, and his two codissenters in Kopp, specifically concurred in that portion of then Chief Justice Lucas's analysis therein of such criteria at part IV of Kopp. (11 Cal.4th at pp. 660-661.) "I concur in all aspects of parts III and IV of the lead opinion." (Id. at p. 685 (dis. opn. of Baxter, J.).) Thus, all the justices in Kopp concurred in its analysis of criteria to be applied before judicially reforming an unconstitutional initiative or statutory measure.21

In sum, no judicial speculation is necessary in this case as to whether the Legislature might have preferred, as a policy matter, the extension of any statutory benefit it granted to other persons not included in the statute as being entitled thereto. Statutory burdens, not benefits, were imposed by section 6070. When the Legislature refused the opportunity in the first version of Bill 905 to extend the burden of CLE to all actively enrolled lawyers in favor of amendments specifically exempting certain classes of lawyers therefrom, it clearly articulated a policy judgment diametrically opposed to the Bar's excision proposal here which, if adopted, would substantially restore the very CLE program the Legislature rejected.

The dissent's excision argument is not strengthened by the fact that section 6070, as amended to exempt state officers and elected officials and others, passed by a large margin. No cases are cited supporting the theory that legislation which passes by a large margin in an unconstitutional form is more likely to be judicially reformed than other legislation. Once legislation is enacted, we are bound to examine it for purposes of all judicial review without regard to the division of votes that led to its legislative passage. This contention also misses the signal fact that it was the amended version of section 6070, including those exemptions here germane, which passed by a large margin. Assuming arguendo the viability of the theory that legislative intent is somehow determined by counting up the legislators' votes for and against the statute under judicial scrutiny, we logically know from the passage of the version containing those exemptions by such a large margin that the legislators favored those exemptions by large margins; and that apparently very few legislators, if any, favored the version of the legislation which the dissent would adopt by judicial reformation. Those facts, if assumed arguendo to be relevant, would not allow us to conclude with confidence that the dissent's proposed reformed version of the statute would have passed in the Legislature. They compel the opposite conclusion.

At oral argument counsel for the Bar made certain statements regarding the allegedly small number of lawyers who were exempted from the CLE requirements by the legislation. Those statements simply involved counsel's estimates which are not in evidence and are nowhere supported by the appellate record. More importantly, there is no authority for the proposition that a factor to be considered in the judicial reformation of an unconstitutional statute is the alleged paucity of the number of persons to whom its exempted burdens are proposed to be judicially extended. The unconstitutional law in issue in Kopp, supra, also governed only campaign contributions to a relatively small number of elected officials and their opponents, but our high court did not rely on the small numbers of persons affected as a means to judicially reform the initiative measure by imposing the burden of statutory compliance on that small number of people, just as we may not impose the burden of CLE compliance upon state elected officials and others through judicial reformation here.22

In sum, we cannot confidently conclude the Legislature clearly articulated a policy judgment that it would have preferred a reformation of the statute which imposes CLE on classes of attorneys it specifically exempted from its burdens, over invalidation and the consequent legislative opportunity to reexamine the subject legislated upon. The judicial reformation of statutes cannot be predicated upon an evidentiary and intellectual void.

A final but related factor posited by Kopp, applicable to the consideration of judicial reform of an unconstitutional statute, is this: Is it "at least as likely that the [Legislature] would prefer to start anew in order to create a comprehensive and coherent [constitutional] scheme, rather than settle for a makeshift and ill-fitting law that might actually hamper future [CLE] reform by creating an illusion that full and complete reform had been achieved"? (11 Cal.4th at p. 670, italics added.)

This query is particularly pertinent here. If we were to follow the Bar's excision proposal, thereby creating the illusion of full and complete reform of a statute thus seemingly impervious to constitutional challenge, a subsequent equal protection challenge may well arise to section 6070 by reason of a matter not directly before us in this appeal, but implicated by that proposal, which the Legislature may well wish to address. What is the rational constitutional basis for exempting full-time state lawyers acting in the scope of their employment from CLE, and denying the same exemption to lawyers similarly situated who are employed by other political subdivisions of the state, such as cities and counties? Further, the Legislature may wish to address the question of whether the Bar departs from its charter under section 6070 and rule 958 by granting CLE credit for certain courses it apparently approved under the rubric of prevention or treatment of emotional distress,23 which in the words of one commentator instruct, inter alia, on such pressing legal and educational issues as "finding a new job, chanting your way to a more efficient law practice or dieting for [CLE] credits . . . ." (Kraw, Class Room Capers, San Francisco Daily Journal (Jan. 7, 1997) p. 4, col. 5.) We again note that the stated purpose of CLE is "To assure that, throughout their careers, California attorneys remain current regarding the law, the obligations and standards of the profession, and the management of their practices." (Regs., §1.0.)24

The dissent correctly observes these questions are not directly before us, but errs in concluding that their consideration on the issue of judicial reformation of section 6070 is, therefore, impermissible. Kopp posits an analysis of such factors as an important part of the calculus on which such judicial reformation is grounded. A single example illustrates the wisdom of such analysis: A strong possibility exists that an equal protection challenge similar to Warden's will be mounted on behalf of full-time attorneys employed by political subdivisions of the state denied exemption from CLE (for which their public employers may pay)25 which is afforded their state counterparts.

To excise the exemptions as the Bar and dissent urge, and thus bypass legislative reconsideration of a statute we have held is unconstitutional, would encourage courts to further reform section 6070 on a piecemeal basis, triggered by successive lawsuits asserting the violation of equal protection to such other lawyers not exempted from CLE requirements. By such means, the court would simply and impermissibly become deeply enmeshed in a role which in the circumstances of this case is reserved to the Legislature. We owe deference to that role.

In sum, we emphasize that the enactment of a constitutional and beneficial CLE program is, in the first instance, a legislative and not a judicial function. We are here required, however, by Kopp, supra, to apply the legal criteria stated in that case, in measuring the dissent's argument for judicial reformation of an unconstitutional statute through excision of portions of the present CLE statute. We are unable to conclude with confidence that the Legislature would prefer, as a clearly articulated policy, to subject its own members, retired judges, and others to the CLE program which it explicitly exempted them from; and thereby retain a CLE program seemingly impervious to further constitutional challenge, but in fact subject to successive waves of lawsuits aimed at gradually invalidating additional statutory exemptions.

The Legislature, in our view, will more likely prefer invalidation of section 6070, allowing it to start anew and initiate comprehensive legislative reform of CLE, rather than accept a judicial reformation of section 6070 mandatorily expanding the burden of CLE training to those the Legislature specifically exempted therefrom.


We unanimously hold the CLE program as specified in section 6070 to be unconstitutional. We also decline, by majority vote, to adopt the Bar's proposal for judicial reformation of the statute in order to lessen the equal protection problems manifest in section 6070. No California case has yet supported judicial reformation of a statute by extension of legislatively imposed burdens to members of a class the Legislature has expressly exempted therefrom, to cure an underinclusive statute denying equal protection of the law. While the Bar's implicit suggestion is that for reasons of both the public interest and constitutional theory the best CLE program would be one exempting no actively enrolled lawyers therefrom, that is not what the Legislature passed. It had the clear option and opportunity to do so, and declined to enact such a statute.

We simply cannot conclude with confidence that any particular form of the statute which we might create by "excision" would actually reflect the clearly articulated policy choices of the Legislature.26 Those policy choices are matters for legislative, not judicial, determination. We must invalidate the statute so that the Legislature may consider reforming it by enactment of a new, constitutional version; or await the creation by our Supreme Court of a replacement for rule 958, uninhibited by unconstitutional exemption provisions.

In sum, we hold the CLE program is unconstitutional. It violates equal protection, by forcing some attorneys licensed by the Bar who represent individual clients in private practice, and not others, to comply with the program for reasons having no rational relationship to a legitimate state interest. The CLE program cannot be judicially reformed to close its irrational exemptions, consistent with a clearly articulated policy judgment by the Legislature and without violating its express and evident intention. Therefore, we conclude section 6070 and the CLE program adopted pursuant to section 6070, including rule 958, violate Warden's constitutional right to equal protection of the laws.27


The judgment is reversed, and the matter is remanded to the trial court with instructions to enter a new and different judgment declaring that section 6070 is unconstitutional, and embodying a mandatory injunction requiring the Bar to reinstate Warden to active membership. Costs are awarded to Warden.






* Judge of the Superior Court of Napa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


A072485, Warden v. State Bar of California

Haerle, J., concurring in part and dissenting in part:

I concur wholeheartedly with practically everything in the majority's opinion save and except that much of it as deals with the relief to be granted. And even as to that I agree in part: Mr. Warden is clearly entitled to be reinstated on the "active" list of the respondent California State Bar. But I do not agree that it is necessary to declare the entirety of Business and Professions Code section 607028 unconstitutional; by so doing, I respectfully submit, the majority throws the baby out with the proverbial bathwater. There is, as politicians are wont to say, a better way: by excising the offending exemptions.

I agree with the majority that the permissibility of such a remedy is governed by the recent decision of our Supreme Court in Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607 (Kopp). But, unlike the majority, I read that decision as making clear (and contrary to some earlier and conflicting precedent) that an appellate court can and should reform a partially unconstitutional statute when to do so would further the intent of the Legislature. I agree with the majority that we must look to part IV (id. at pp. 626-662) of then Chief Justice Lucas' plurality opinion for the guiding principles. The first such principle is one repeated several times in this part of the opinion, to wit, that "a court may reform -- i.e., 'rewrite' -- a statute in order to preserve it against invalidation under the Constitution, when we can say with confidence that (i) it is possible to reform the statute in a manner that closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred the reformed construction to invalidation of the statute." (Id. at pp. 660-661.)

Excising the three offending exemptions is, I submit, a plainly permissible method of accomplishing such a reformation. In the first place, it is clear that the presence or absence of a severability clause (there is none in section 6070 or the statute that gave birth to it) is not determinative. This is manifest from precedent both in the United States Supreme Court (see, e.g., United States v. Jackson (1968) 390 U.S. 570, 585, fn. 27) and from our own high court (see, e.g., People v. Mirmirani (1981) 30 Cal.3d 375, 387, fn. 9; Legislature v. Eu (1991) 54 Cal.3d 492, 535; City of Dublin v. County of Alameda (1993) 14 Cal.App.4th 264, 275).

We come then to the question of whether a "discriminatory exemption"29 such as is involved here may be excised as a means of accomplishing judicial reformation. I think it is very clear that it may. Kopp itself noted that the United States Supreme Court "tacitly followed" Justice Harlan's suggested approach in Welsh v. United States (1970) 398 U.S. 333, 361 (Welsh) and "[i]n the process it effectively, albeit not always candidly, rewrote -- by elimination and by addition of words -- various federal and some state statutes." (Kopp, supra, 11 Cal.4th at p. 632, emphasis on "elimination" supplied.)

Justice Harlan's seminal concurring opinion in Welsh itself speaks of "amputation" and of "eliminating the exemption" as possible remedies. (Welsh, supra, 398 U.S. at p. 364 and fn. 16.) And in Champlin Rfg. Co. v. Commission (1932) 286 U.S. 210, 234, the high court stated the rule as follows: "Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law."

Aside from Kopp, our own Supreme Court has noted several times that excision is a permissible form of reformation of a partially unconstitutional statute. In Gerken v. Fair Political Practices Com. (1993) 6 Cal.4th 707, 721, Justice Baxter noted in his concurring opinion: "When provisions of an initiative statute are constitutionally or otherwise invalid, the void provisions must be stricken from the statute but the remaining valid provisions should be given effect if they are severable." (See also Santa Barbara Sch. Dist. v. Superior Court (1975) 13 Cal.3d 315, 330-331; Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 821, 836.)

But the principal support for the relief I would prefer to see applied here comes from our high court's decision in Hayes v. Superior Court (1971) 6 Cal.3d 216 (Hayes). In that case, the court held that a criminal defendant then in prison in Nevada, but who has been granted probation by a California court without imposition of sentence, could obtain a final disposition of his California case pursuant to then Penal Code section 1203.2a notwithstanding the fact that, by its terms, that section applied only to a person who was "committed to a prison in this State." The court ruled that the quoted limitation violated the equal protection clauses. But, it went on to hold, the appropriate remedy was to strike the limitation and thus extend the benefits of the section to those in prison elsewhere than California. In so holding, it declared: "A statutory classification which arbitrarily excludes some but not all of those similarly situated in relation to the legitimate purposes of the statute does not necessarily invalidate the entire statute. [Citations.] In light of the purposes and history of a particular statute or an overall statutory scheme a reviewing court may correct a discriminatory classification by invalidating the invidious exemption and thus extending statutory benefits to those whom the Legislature unconstitutionally excluded." (Id. at p. 224.)

The majority suggests that this principle obtains when the reformation operates to extend benefits, but not to extend "burdens." Assuming, without conceding, that the California State Bar's Minimum Continuing Legal Education (MCLE) program can be properly classified as a "burden,"30 I simply do not understand why the principle so carefully articulated in Hayes must be so restricted. What possible difference does it make whether the excision of the offending portion of the statute extends benefits to those formerly denied them or extends the "burdens" of the statute to those formerly provided a "discriminatory exemption" therefrom? To me, these are nothing more than opposite sides of a single coin, and the same rule should apply in both situations.

Which brings me to the final, and certainly key, question: can we "say with confidence" that (i) the statutory reform I propose, excising the three offending exemptions, would "reform the statute in a manner that closely effectuates" the Legislature's clearly articulated policy judgments, and (ii) the Legislature would have preferred section 6070 sans exemptions to the total invalidation the majority decrees? (See Kopp, supra, 11 Cal.4th at p. 661.) I think both questions must be answered in the affirmative.

At oral argument, counsel for the State Bar told us that (at the time section 6070 was enacted presumably) 55 legislators and 130 retired judges were effectively exempted from the requirements of the section. Appellant did not challenge those figures. No figure was offered regarding full time law school professors, but common sense tells us that figure could not be more than a few hundred. The issue then becomes: which remedy is proper under the test laid out by Kopp, the total invalidation of the entire MCLE program as decreed by the majority or the excision of three31 "discriminatory exemptions" which benefit no more than a few hundred California lawyers? The majority argues that, since the Legislature either could not or would not pass the bill in its original "Colorado" form and grafted on the exemptions at issue here (and others), it necessarily follows that the excision route is inconsistent with its "policy judgments." I disagree for at least two reasons. First of all, I respectfully suggest that the grafted exemptions patently implicated much more the political process of getting the bill passed circa 1989 than they did the Legislature's "policy judgments." Second, and contrary to the majority's reasoning, Kopp makes clear that reformation of a statute can and may be in ways that run contra to express legislative action. It noted: "In each of the numerous extension cases discussed above, a court rendered a decision that effectively reformed a statute by including within its reach that which the enacting body implicitly -- and sometimes expressly -- excluded." (Kopp, supra, 11 Cal.4th at p. 652.)

Finally, I note that the Legislature passed section 6070 in the same session in which it was originally introduced and within almost seven months after that introduction. The final vote in favor of passage was 24 to 2 in the Senate and 71 to 1 in the Assembly. (1 Sen. Final Hist. (1989-1990 Reg. Sess.) p. 630.) The legislation was, from its inception, backed by the State Bar. These factors, coupled with the already-noted fact that the exemptions benefit only a few hundred California lawyers, suggest rather strongly to me that our Legislature would much prefer excising the offending exemptions to invalidating the entire statute.32 Or, to put matters as the Kopp court did (paraphrasing now-Justice Ginsburg of the United States Supreme Court), we can and should reform the law because "invalidating a statute would be far more destructive of the electorate's will." (Kopp, supra, 11 Cal.4th at p. 661.)

In short, I would order the State Bar to re-enroll appellant in its active rolls and that the exemptions from MCLE allowed by section 6070 and the companion State Bar rule pertaining to legislators, retired judges and law school professors be stricken as being, for all the reasons so ably explained by the majority, in violation of the equal protection clauses of the United States and California Constitutions.


Haerle, J.

Trial Court: Superior Court of Alameda County

Trial Judge: Hon. James R. Lambden

Attorneys for Appellant Lew Warden

In Propria Persona

Attorneys for Respondent Diane C. Yu

Starr Babcock

Colin P. Wong

State Bar of California

Office of General Counsel

1 Unless otherwise indicated, all subsequent statutory references are to the Business and Professions Code.

2 Since an inactive Bar member is not allowed to practice law (§6006), involuntary enrollment on inactive status operates as a temporary suspension from the practice of law. (See Conway v. State Bar (1989) 47 Cal.3d 1107, 1111.)

3 Persons who are not active members of the bar need not comply. However, many persons who are not on active status may wish voluntarily to participate in such programs. For instance, active California judges, who are not members of the Bar, have their own CLE program. (See Cal. Standards Jud. Admin., §25.)

4 As our Supreme Court has observed, "the membership, character and conduct of those entering and engaging in the legal profession have long been regarded as the proper subject of legislative regulation and control . . . ." (State Bar of California v. Superior Court (1929) 207 Cal. 323, 331.)

5 "A member may submit an application setting forth good cause for an exemption from compliance with or modification of any of the requirements, including an extension of time for compliance, in accordance with a procedure to be established by the Committee on Minimum [CLE]." (Regs., §6.3.) "Should the decision be adverse to the member, the member may appeal such decision pursuant to the provisions of California Rule of Court 952(d)." (Id., §6.3.1.)

6 Under the guidelines, a retired judge is one who has served as judge of a court of record in California or other jurisdictions, has retired from the bench, and is either immediately qualified to receive retirement/pension benefits or is vested in such benefits and entitled to receive them in the future. (§ 6.1.1.) A full-time professor is a full-time teacher at an accredited law school regardless of academic title. (Id., §6.1.3.) Full-time state and federal employees are exempt only if the sole legal work they do is within the scope of their employment. They are not exempt if they engage in any outside legal activity, including pro bono work or legal work for themselves, close friends, or immediate family. Attorneys employed by the Bar are not exempt. (Id., §§6.1.4 & 6.1.5.) "For purposes of 6.1.4 and 6.1.5, attorneys are exempt who are required by the [Bar] to maintain 'active' membership status as a result of the duties they are required to perform by virtue of their employment with the State of California or the United States Government." (Ibid.)

7 Section 1 of the Fourteenth Amendment to the federal Constitution provides that no state may deprive any person of the "equal protection of the laws." This provision is mirrored in article I, section 7 of the California Constitution, which provides "(a) A person may not be . . . denied equal protection of the laws . . . ."

8 It is clear that Warden's ability to legally practice his profession is entitled to constitutional protection against arbitrary or unconstitutional governmental abrogation. (See Spevack v. Klein (1967) 385 U.S. 511, 516; Barnard v. Thorstenn (1989) 489 U.S. 546, 553.) If Warden did not have standing to assert the unconstitutionality of the Bar's actions relative to himself, then obviously no one would have standing in any case to allege unconstitutionality.

9 "[T]he test for determining the validity of a statute where a claim is made that it unlawfully discriminates against any class is substantially the same under the state prohibitions against special legislation and the equal protection clause of the federal Constitution." (County of L. A. v. Southern Cal. Tel. Co. (1948) 32 Cal.2d 378, 389.) We would apply a higher and more stringent level of scrutiny if this case involved regulations based upon a suspect classification, such as race; but Warden does not allege the existence of such a suspect classification.

10 The CLE program has resulted in a large number of Bar approved "providers" of CLE programs for utilization by the thousands of California lawyers who are required to attend private, for-profit courses for CLE credit. The course offerings vary widely. They range from conventional offerings in legal practice areas to classes in such subjects as unusual techniques of "stress reduction" through chanting and meditation (Roth, Dr. Feelgood to the Lawyers' Rescue, San Francisco Daily Journal (Jun. 27, 1996) p. 6, cols. 4-5) or "Sports Nutrition" (Beyond Cholesterol Sports Nutrition & Cardiovascular Health (Inst. for Natural Resources) CLE program Sept.-Nov. 1996). While one might question the public benefit or logic in suspending lawyers from the practice of law who decline to be trained in sports nutrition or other subjects which are arguably useless in benefiting those lawyers' clients, we will assume, for purposes of this appeal, that some CLE programs do contribute, inter alia, to assurances that California attorneys remain current regarding the law, legal ethics, and law office management.

11 Although the Raffaelli case also dealt with discrimination based upon alienage, a category subsequently subjected to the strict scrutiny standard of review, the test actually employed by the Raffaelli court as to this issue was obviously the same rational basis test which we must apply here.

12 If this were the true purpose of the exemptions in question, they would be limited to persons who do not represent private clients, as are the exemptions for state and federal employees.

13 A law professor's regular teaching duties might well satisfy part of the CLE requirement. However, regular teaching of the law would not satisfy the specific requirements for education in the areas of legal ethics, law office management, or the elimination of bias in the profession, except in the case of a professor who happened to teach all three subjects in a given compliance period. Aside from this, however, a law school professor would be exempt from CLE requirements even though the professor also had a substantial private practice representing clients.

14 For example, judges with only five years of service on the bench who meet certain other statutory criteria under the Government Code could leave the bench "entitled to receive [benefits] at some time in the future" (guidelines, § 6.1.1, subd. 2.b.), resume private practice, and yet be exempt from the CLE program forever, simply because they would qualify as "retired judges" by statute (§6070) and regulations promulgated by the Bar (§6.1.1). (See Govt. Code, §§75033.5 & 75522, subd. (a).)

15 The 1989 Legislature which adopted these exemptions was guided by lawyers. Both the Speaker of the Assembly and the President Pro Tem of the Senate were lawyers, and both houses contained numerous lawyers (including at least one law school professor). (Cal. Legis. Handbook (1989) pp. 45-53, 225-234.) The membership of the 1989 Legislature adopting these exemptions also included physicians, dentists, and teachers. (Ibid.) We are aware of no legislators in nonlegal professions who have been exempted from continuing education programs or proficiency testing in their professional fields based solely upon holding a state office.

16 Moreover, the statute in question here does not contain any severability clause. Although the absence of such a clause is not necessarily determinative, it is one factor to be considered in deciding whether a portion of the statute could be judicially reformed through severance or excision. (See Legislature v. Eu (1991) 54 Cal.3d 492, 535; City of Dublin v. County of Alameda (1993) 14 Cal.App.4th 264, 275.)

17 Four justices explicitly indicated agreement with this principle: Then Chief Justice Lucas (Kopp, supra, 11 Cal.4th at p. 670), Justice Mosk, (id. at pp. 674-675), Justice Werdegar (id. at p. 678), and Justice Kennard (id. at p. 679 ["I would so determine were I to reach that question . . . ."]). Moreover, even the three dissenters in Kopp (Justices Baxter, Arabian, and then Justice George) based their plea for reformation upon the greater need for reformation of voter-approved initiatives, a consideration which does not apply in this case. (Pp. 685-686.)

18 For examples of cases concerning statutes which cannot be reformed under the Kopp standard, see 11 Cal.4th at pages 653-660.

19 Our dissenting colleague recognizes that the "'discriminatory exemption'" in issue here violates equal protection because of the burden it places on those not exempted. (Dis. opn., post, at p. 2.) However, he then reasons that this burden of CLE compliance is really a "'benefit'" to the public (id., post, at p. 3, fn. 3), without explaining, for example, how programs he properly describes as "quaint" would benefit the public which bears the ultimate burden of paying for them through legal fees charged by lawyers required to attend (id., post, at p. 4, fn. 4). This analysis is wholly inconsistent with Kopp, supra, 11 Cal.4th at page 670. No case supports the proposition that a legislative burden may be extended in reforming a statute to persons expressly exempted therefrom because some "'benefit'" to the public can be found in the overall legislative purpose in enacting that statute. Substantially all legislative enactments are at least theoretically passed for some public benefit. The judicial reformation of section 6070 the dissent urges would simply subordinate a legislative directive that persons be free of a statutory burden, to the second guessing of a court that the Legislature's policy was nonetheless to impose that burden on exemptees because of some overall public benefit the Legislature intended in enacting the legislation on CLE with those exemptions.

20 In Del Monte, supra, 1 Cal.4th 1009, the court reformed a statute by extending the benefit of a tax exemption to veterans who were excluded therefrom because not California natives or residents upon entry into service. That decision did not extend the burden of taxation to previously exempted veterans.

21 United States v. Jackson (1968) 390 U.S. 570, 585, also relied on by the dissent, did not expand the burden of the death penalty for kidnapping; it reformed a statute to strike that burden, eliminating it as punishment for that crime, while leaving the kidnapping statute otherwise intact.

22 The numbers cited by the dissent also give an incomplete picture of the impact of the exemptions, which must as a matter of common sense include many exempted lawyers, by virtue of the various exemptions for officers and elected officials of the state, retired judges, the many lawyers who are state employees, and so on. The Legislature clearly intended to exempt and did exempt all actively enrolled lawyers from CLE training who are retired judges; officers or elected officials of the state, including legislators and their legal staffs; law professors who teach full-time at certain accredited schools; and all lawyers employed full time by the state acting within the scope of their employment. No support exists in logic or the record before us for a confident conclusion that these exemptions were merely coincidental, and that the statute would have passed in the form the dissent proposes without those expressly adopted exemptions, because of any overriding legislative policy decision to establish a requirement for CLE training.

23 Section 2.1.2. of the guidelines provides: "'Emotional distress' may include instruction on how to deal with stress. . . . [¶] . . . [P]revention, detection and treatment of . . . emotional distress may address generic issues of . . . emotional distress in society in general and need not focus solely on problems which attorneys encounter in the legal profession." (Italics added.) Neither section 6070 nor rule 958 provides for CLE credit for instruction in generic issues of societal emotional distress unrelated to the legal profession. That concept seems to have been added by the Bar on its sole initiative, without any express basis therefor in either legislation or rule of court.

24 By contrast, a continuing education program for physicians was established for the protection of the public, which has no exemptions for members of the Legislature, state or federal employees, retired physicians who still practice medicine, or medical school professors. (§§2190 & 2190.1.) This program also carefully sets forth the requirements for approval of education programs, and specifies that course content must be directly related to patient care. (§2190.1; Cal. Code Regs., tit. 16, §1337.5.) All the requirements of that program, as opposed to the one in issue here, have a rational basis in the need to protect the public by keeping active practitioners current in their discipline.

25 Bill 905, which enacted section 6070, also included a legislative declaration stating it was "the intent of the Legislature" that local governments should pay the costs of CLE courses for their lawyer employees. (Stats. 1989, ch. 1425, §3, p. 6308.) Thus, local governmental entities not exempted by section 6070, which in obedience to the Legislature's expressed intent paid for CLE compliance courses for their employees, could also have standing to challenge the law. (Cf. County of Ventura v. State Bar (1995) 35 Cal.App.4th 1055, 1057-1060.)

26 While we do not want to throw the baby out with the bath water as our dissenting colleague suggests we are doing (dis. opn., post, at p. 1), we simply lack the authority in the circumstances of this case to leave a portion of the baby in the bathtub by adopting the Bar's "excision" or "amputation" proposals. The law in question specifically exempts retired judges, legislators, and others. We would reach the height of judicial activism by "reforming" the statute so as to require those exempted lawyers to take CLE courses when there is no law now in existence requiring them to do so.

27 Our disposition moots certain other contentions raised by appellant, and we need not address them at length. Specifically, we do not find appellant's rights were violated based upon his age or his last name, which governed the onset of his initial period for CLE compliance. We also conclude the Bar and its individual officers may not be sued for damages, as opposed to injunctive relief, for violation of appellant's civil rights or violation of a covenant of good faith and fair dealing, simply because they applied section 6070 as written to appellant. (See Verner, supra, 533 F.Supp. at pp. 1112-1115.) We also decline to address appellant's due process challenge, which is moot in light of our conclusion as to the equal protection issue. In addition, we do not address any questions arising under the First Amendment to the federal Constitution or the broader free speech guarantee contained in the California Constitution (art. I, §2, subd. (a)) because those issues are not briefed or presented for review in this case.

28 All further statutory references are to the Business and Professions Code unless otherwise indicated.

29 The phraseology is that of the United States Supreme Court in Williams v. Vermont (1985) 472 U.S. 14, 23. One scholar suggests that such exemptions are treated the same as other "underinclusive" forms of legislation. (See Tribe, American Constitutional Law (2d ed. 1988) §16-4, pp. 1448-1449.)

30 I assume the majority means a "burden" on the affected attorneys; hopefully, it would agree with me that it may not be a "burden" to clients or potential clients of those attorneys, the portion of the body politic whose interests the Legislature presumably had most in mind. As to them, I assume MCLE was seen by the Legislature as a "benefit." My point is that, here as in many other instances, one person's "burden" is another's "benefit" and vice versa.

31 I stress that the only issue before us is the constitutionality of the three identified exemptions. Thus, although I appreciate the reason for the majority's reference to the different treatment the statute affords full time state attorneys and that afforded full time county and city attorneys (maj. opn. at pp. 29, 30), I would note that that issue was neither briefed nor argued before us. In the same vein, although I very much share Presiding Justice Peterson's views regarding some of the more quaint aspects of current MCLE programs (maj. opn. at p. 9, fn. 10, and p. 29), again I would note that these matters are simply not before us.

32 The majority suggests that the real choice is between invalidating the exemptions and "allowing [the Legislature] to start anew and initiate comprehensive . . . reform of CLE . . . ." (Maj. opn. at p. 31.) I suggest (a) this formulation of the alternatives represents a clear leap of faith and (b) we should not be suggesting to the Legislature how to "reform" MCLE in respects that are not clearly our business. (See fn. 4, ante.)