California Bar Journal

UPDATE

Bar files appeal with Supreme Court to overturn MCLE ruling

by NANCY McCARTHY
Staff Writer

The State Bar has asked the California Supreme Court to overturn a lower court ruling [Warden v. State Bar] that the bar's MCLE program is unconstitutional. The petition for review was filed April 22, and the high court has 60 to 90 days to act.

The First District Court of Appeal ruled March 13 that the continuing education program violates the equal protection rights of California attorneys who are not exempted from it. Retired judges, full-time professors at accredited law schools, and officers and elected officials of the state are exempt from MCLE requirements.

Bar lawyers argued that the court of appeal erred in three areas when it struck down the program:

It applied a "heightened scrutiny test" instead of the traditional rational basis test to the program.

State Bar general counsel Diane Yu said the heightened scrutiny test used by the three-judge appellate panel is appropriate only in reviewing statutes that discriminate against suspect classifications or that infringe on fundamental rights.

Under the rational basis test, however, a court may not second-guess and substitute its political judgment for policy judgments made by the legislature.

"Founded on the basic constitutional doctrine of separation of powers, the court instead must defer to the legislative branch and uphold legislative classifications if there is any 'conceivable basis' to support the classifications," Yu said.

Therefore, she said, the legislature may impose MCLE's goal of maintaining competence on attorneys it believes are more likely to pose a harm to the public due to incompetence. At the same time, lawmakers may exempt those it believes are less likely to engage in the private practice of law.

The court of appeal improperly relied on the alleged motive of one lawyer-legislator not to be "dragged into the classroom."

In the opinion, Justice J. Clinton Peterson wrote that the legislature exempted its members from MCLE requirements when lawmakers who "didn't want to be dragged into the classroom" indicated they would oppose the bill.

Yu said the court majority mistakenly concluded that the legislature would not have enacted the MCLE statute without the exemption carved out for its own members. "The majority in effect attributed the sinister intent of allegedly one legislator to the entire legislature in its adoption of the MCLE statute," Yu said.

The court should have deleted the exemptions rather than throw out the entire program. The three exempt categories affect less than one quarter of one percent of active bar members, Yu said.

The appellate ruling found the entire MCLE statute (Business & Professions Code §6070) unconstitutional, as well as rule 958 of the California Rules of Court, adopted by the state Supreme Court.

The continuing education program was created by the legislature in 1989 and is administered by the bar.

While the appellate process is underway, the MCLE program will remain in operation. The bar will continue to monitor compliance and attorneys are advised to continue to comply with MCLE requirements.

The program requires all active attorneys to complete 36 hours of legal education over a three-year period. The requirement includes four hours of ethics instruction, four more hours in either ethics or law practice management, and one hour each in the elimination of bias and substance abuse.

The bar currently certifies more than 1,100 MCLE providers.