GARCIA (SERGIO C.) ON ADMISSION

Amicus Curiae Brief of La Raza Lawyers Association of Sacramento, et al.

Cal.July 23, 2012

SUPREMECOURT COPY ——suerente courr FILED Bar Misc. 4186 §202512 JUL 23 2012 IN THE SUPREME COURTOF THE STATE OF CALIFORNGA: McGuire Clerk Deputy In re SERGIO C. GARCIA on Admission BRIEF OF AMICI CURTAE THE LA RAZA LAWYERSASSOCIATION OF SACRAMENTO AND THEASIAN/PACIFIC BAR ASSOCIATION OF SACRAMENTOIN SUPPORT OF THE COMMITTEEOF BAR EXAMINERS’ MOTION FOR ADMISSION OF SERGIO C. GARCIA TO THE STATE BAR OF CALIFORNIA Anthony P. Marquez (SBN 80369) Joshua Kaizuka (SBN 212195) Dean of Students Law Office of DenisWhite University ofNorthern California 901 H Street, Suite 101 Lorenzo Patino School ofLaw Sacramento, CA 95814 1115 H Street Telephone: (916) 444-3300 Sacramento, CA 95814 Fax: (916) 444-3210 Telephone: (916) 441-4485 josh@deniswhitelaw.com Fax: (916) 441-0185 MarquezA@patinoschooloflaw.com Attorneysfor: La Raza Lawyers Association of Sacramento and Asian/Pacific Bar Association of Sacramento Bar Misc. 4186 §202512 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re SERGIO C. GARCIA on Admission BRIEF OF AMICI CURIAE THE LA RAZA LAWYERSASSOCIATION OF SACRAMENTO AND THE ASIAN/PACIFIC BAR ASSOCIATION OF SACRAMENTOIN SUPPORT OF THE COMMITTEE OF BAR EXAMINERS’ MOTION FOR ADMISSION OF SERGIO C. GARCIA TO THE STATE BAR OF CALIFORNIA Anthony P. Marquez (SBN 80369) Joshua Kaizuka (SBN 212195) Dean of Students Law Office of Denis White University ofNorthern California 901 H Street, Suite 101 Lorenzo Patino School ofLaw Sacramento, CA 95814 1115 H Street Telephone: (916) 444-3300 Sacramento, CA 95814 Fax: (916) 444-3210 Telephone: (916) 441-4485 josh@deniswhitelaw.com Fax: (916) 441-0185 MarquezA@patinoschooloflaw.com Attorneys for: La Raza Lawyers Association of Sacramento and Asian/Pacific Bar Association of Sacramento TABLE OF CONTENTS INTRODUCTION.....ccessccsccsseeeeseceeesssesesensesaeeesseceneeseeecssesaeansessenesseeesnee sees 1 ARGUMENT.....ccccssssssessceesceneceeesecsesssseceseresscaaeesersssessenseesstaenensaeesceenneesereganes 3 I. 8 U.S.C. Section 1621(c) Does Not Require The California Supreme Court To Adopt A Rule That Makes It Mandatory That Only Those Eligible For Admission To The State Bar Are Those Applicants Who Can Establish Lawful Presence In The United States..........c.cccccccsessesssssseesseeeeseeeneeeeseneerseesenseees 3 A. 8 U.S.C. Section 1621(c)(2)(c) On Its Face Would Permit Garcia To Be Sworn In At A Mexican Consulate Or At Any Location Where He Is Not Physically Present In The United States... 6 B. No Other Federal Or State Law Preempts Or Applies To The Court’s Authority To Set The Requirements For Individuals To Practice Law In A State Court...... 8 I. If 8 U.S.C. Section 1621(c) Is Applicable, Then An Exception Exists Pursuant To 8 U.S.C. Section 1621(d) Because California Law As Provided For By The Legislature Or An Order OfThe California Supreme Court Admitting Garcia To The State Bar Would Constitute Enactments OfA State Law After August 22, 1996, Which Affirmatively Provides For Such Eligibility 0...cccesseseeseeseneeeetenenensnesecsseeeeneneneneetetenes 16 A. Amendments To Business And Professions Code Section 6060 After August 22, 1996, Allows For Individuals To Be Admitted To The State Bar Even If They Are Foreign Nationals............s-cssssesesseseees 16 B. In Setting Standards For Admission To The State Bar, The Court Acts In A Legislative Capacity And Any Holding Of The Court In The Form Of An Order, Decision, Opinion, Decree Or Rule,Is A. State Law ...ccccccccsssssssssreceseesseseseeseeesereesseneessoeeeeuaee 19 CONCLUSION...cecccccssccseseecececeseesseusecensensasesnanenescansssesensenareessnenssaensanenags 22 TABLE OF AUTHORITIES CASES Arizona v. United States (2012) 567 U.S. 5 183 L. Ed. 2d 351 one eeeeessessseeeeseeeeteeteeretetetetsens 12 Caminetti v. United States (1917) 242 U.S. 470 oo. eeccescesesceessenesseceeseeenensseseaneneneesensneneeseseeneeacenens 3,4 Cooper v. Swoap (1974) 11 Cal.3d 856 oo... ccccssssseseeeeseseeeseneesessessneaeensensseaseetesanaeasensacenens 21 Gerritsen v. De La Madrid Hurtado (Oth Cir. 1987) 819 F.2d 1511 .ecceceeeeeeeesesretsreeseneneeeteereestenetersaneenenes 7 Hines v. Davidowitz (1941) 312 U.S. 52 weeceecssseeeeseeeeeestseeseeeeseeeesetsneresanenseeeseneenesesneasaneanaes 13 Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137 coesesesesesssesesesescessnestecnsarssensssesenenenecenenseneraensersseesrees 13 Howard v. Babcock (1993) 6 Cal. 4th 409 oo. ceeeesssessesesseesesseasensseersneesseseecasesecacensnensstenenee ses 19 Hustedt v. Workers’ Comp. Appeals Bad. (1981) 30 Cal. 3d 329. .eeccescseseesssessescesseseesnenerseeseaenessnesnesenenarersnesneess 19 In re Atty. Discipline Sys. (1998) 19 Cal.4th 582... eecssecessesessssescenenrenensesesessesenesesseeesnenenesessesseees 20 Inre Griffiths (1973) 413 U.S. 717 cseeccsesesseseeneseseetereseeensasssereseneneaneneneneenenansenssrenesges 17 In re Lavine (1935) 2 Cal.2d 324... .eeccscsssseseeseresteneeereneerssssecenenenensenenenessenaeseens 8,9, 10 In re Shannon (1994) 179 Ariz. 52 voeececcesseseseeseseseeneeseenensassenseneenenensensensnararaeaeareatsees 19 Konigsberg v. State Bar ofCalifornia (1957) 353 U.S. 252 ooeesececssescsceseresseesnnensenssesssceenneseenenenerecnanererasenesensnans 11 Los Angeles Unified School District v. Superior Court (2007) 151 Cal.App.4th 759 .....cccsccsecesssssereaserseesesnsesesnssersesenneneaseneassnseces 5 Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724 oo eccsscescssssescssseesecceceensrsnensnesseeseneseneesasanrecenenensnens 20 -i- National Federation ofIndependent Business v. Sebellius (June 28, 2012, Nos. 11-393, 11-398, 11-400) 567 U.S. [2012 U.S. LEXIS 4876]... cceeeeeeeseeeeeetenereseeeeneees 14, 15 Nelson v. County ofKern (2010) 190 Cal.App.4th 252 .....cssesessesseeesseteessssetessneeresseseetetssetenseas 5 Perez v. The Bahamas (D.D.C. 1980) 482 F.Supp. 1208.0... cceeeeeseeete sees teeetseeseeeeneneeeeetenenes 7 Plyler vs. Doe (1982) 457 U.S. 202 ee ecccessecessssseeeseseeneneseeenscerseesessenensenesenensansasanes 1,2 Raffaelli v. Committee ofBar Examiners (1972) 7 Cal.3d 288 oo... eessesscesssssessesesenseeesssesneeeseresssseesansnesesesenenseesenenes 16 Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal. 4th 525 oo ecccecescsssssesseseeeeseeeesteeesensneeeasssessesesseneeseneasacnens 19 Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116... ccccssscecssesseeseretseecseererstsssecsessseseneseeneesereneasasaees 5 Schware v. Board ofBar Examiners (1957) 353 U.S. 232 cecssssscsssccssssesesesseseneneereneesseaseersseesenseenenseesens 10, 11 Supreme Court ofNew Hampshire v. Piper (1984) 470 U.S. 274 woe eccssssssesceseseseeeseeseessenenecassassneesensenenenenesesenssenens 17 Stratmore v. State Bar (1975) 14 Cal. 3d 887 uo. .cesescsssessseesesesseseeeeseceerersessesseaseesseseesensesnseeasenaas 19 United States v. Lopez (1995) 514 U.S. 549 oeeccesesssesseseeesenenetseeeteeneersessesessassesensneseneseneneenens 14 STATUTES Immigration Reform Act, Pub. L. 99-603, 100 Stat. 3359 (Nov. 6, 1986)... eesescessesseesesecssseenenseseeeeeeseesstersesseeesseaeeesssensesesasananseess 13 The Real ID Act of 2005, 119 Stat. 302, enacted May 11, 2005................ 15 BULS.C. § 1621 oe cecccecseeeeseesscseseneecssseaeeeaenesseeenecaseeessuesseressasseneseeeneas passim BULS.C. § 1621 (a) eersereeceescecseesseesstssnenseseeseesneeneanensnearentsassesseerensasensenssenss 5, 16 B ULS.C. § 1621(C)...ecceeesecesecssesesensesssaessesseseeseasenessenssenseeaseeneens 1,3, 15, 16 8 ULS.C. § 1621(C)(1)(A) nee eeeceeseetenentenseeseneeereansseeansenresseseseneeneeeneeeen 1,4 B ULS.C. § 1621 (C)(2)(C) oe reseesssssecesesneeesesetsreseenetsesecssnecseenessseneneneansaseran 4,6 B U.S.C. § 1621) ...ceeceeseecessessssserenseessesnesseesesensressenseesesssneesereneneeeseeeceneans 16 28 U.S.C. § 1603(a)....cceeccesecsercssesstssessesseaeneestsseresenassersnnessessseaseeaneorerneerseas 7 ~ iii - 28 U.S.C. § 1603 (b) .eecccceeeeessesesesssstseeseseeseseesseeeseeesseesenenseeessenesseeseeseetsennags 7 28 U.S.C. § 1603(C)...cccccccccscesessessesssscnseeeeessnsesseesenesersasesessaneseasenesseessesenaeneage 7 California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code................:1:eee 4 Bus. & Prof. Code § 6060 ......ccccecscsseeesestssseeeeteneesessenenenenes 9, 16, 17, 18, 20 Bus. & Prof. Code § 6060 (€)(2).....cssscccssssesseecereeesereesesseenseneneenesVeeteeeeneees 20 Bus. & Prof. Code § 6060.6 20... .eecccescesssssesereeceeeeseesssesenenenenseneeeseeeanes 9, 18 Code Civ. Proc. § 90 o...cccceceeesesseesseseeeseesseseeeeersasenseeeneseuneaeeesesasensneesaetateas 20 Fam. Code § 17520 ....ccccccecessesscesseeseseseessesseseesnecseeeanerseasensneseasaeneessesaeseeenseas 9 Gov. Code § 6252 (d)....ccscccsesessesssssssseecseesseseseeseeetacenseesensecensesensensessaneaseneaes 4 Gov. Code § 6252 (f) ..cccessessessseessessseseceesensneeeeeeeerseseseseseeeeeeseasensessesnentenenenes 4 Pub. Resources Code § 21000 (IMCA ......ccccseccesseetsseeresnesensnesnesseneneenteneneaes 4 Pub. Resources Code § 21063... ccccecssseeseesseccereceeeeensaseceessesseeeenaeeeneeaes 4,5 Veh. Code § 1280.5 .....cceccessssseessessssesssscssssenseeeeneeeeseassaneeeesssenensesseneeneneiegs 15 OTHER AUTHORITIES Berg, May Congress Grant the States the Powerto Violate the Equal Protection Clause - Aliessa v. Novello and Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996,” (2002-2003) 17 B.Y.U. J. Pub. L. 297 wee eeeseseesessseeeeeeseeeenneneeenenenereeaees 2 H.R.Rep. No. 3734, 104th Congress, 2nd Sess. pp. 2183-2893 (1996)... 1, 3 Janet Napolitano, Secretary of U.S. Department of HomelandSecurity, Press Release (June 15, 2012) ......sssessmesessescereeteneeestetsesniseseseneenenenins 12 Leg. Counsel’s Dig.,.......esssssseesessesessesereessssseseesseaseasenenensnesnensnrnenerenseerey 17 Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (110 Stat. 2105; Pub. L. No. 104-193) (August 22, 1996)... essccsssesssseeseeseeesteereesesecteesssecsassesessenensessenenens 1, 3,5 Senate Bills 1321 and 1950 (1995 — 1996 Reg. Sess.) ..ccseccesssecsesecseesesesesressstecesnseseessseeenenerensneceney 17 State Regulation ofthe Legal Profession (1980-1981) 8 Hastings Const. L.Q. 199, 202 ......:ssscsseseeesetetetetsreiees 19 Title 14, Cal. Code Regs. § 15379 oo. eesssssscessetessecserensesteensssesseeneeseranerntass 5 -iv- 1996 U.S. Code Cong. & Admin. News, p. 2770 .....sssssssssessesesetrerereteess 1,4 1 Witkin, Cal. Procedure (4th ed. 1996) Attorneys, § 356,p. A388 Leese 20 RULES Cal. Rule of Court, rule 8.204(C)(1) oo... cececssseereseeeeeesseeseeeneteneneeteaeenanecnne nes 2 2 Cal. Rules of Court, Rule 9.2 ....cccsccssssscecssensestreressssesenesennsessernoenerasennan eas 19 Cal. Rules of Court, rule 9.22 w...ccesssecsesscneseeneeerenesenteesseeeeesnssensneesnaen erteees 9 Cal. Rules of Court, rule 9.30 oo... cecsescseseesneneetseecsnesneneeeessnnensnesnneeseoarerces 2 0 Cal. Rules of Court, rule 9.30(a).......:cscseseseeeeeesseessereenssessennesnenenserseeetne nes 2 0 Cal. Rules of Court, rule 9.44 oo... cecsesccseesseeeseseseeeesseeeecneeneeneeseanencen ege nes 21 CONSTITUTIONAL PROVISIONS USS. Const., article I, section 8, ClaUSe 3........-sscessseensetseteeeteneeteeeeees 143 U.S. Const., article I, section 8, Clause 4.0... ssesesseeeeeereetensesseseeteennnenens 12 Cal. Const., art. IV o...cccccescsscsscsssseecseeseensescserscsesessesessensnsenensusensnessersusareness eags 4 Cal. Const., art. VI, Section 1...cceesetetesretetereseeeseneneenerentersteeenseneeenersns 21 Cal. Const., art VI, section 18, subd. (d) and (f),. ....sssssesssereeeteteeestettens 19 INTRODUCTION The only reason this matter is before the Court is because of the possibility that 8 U.S.C. section 1621(c) may prohibit an undocumented person from being allowed to practice law in a state court. This question rests on the notion that being licensed to practice law in a state court is equivalentto a person beingissued a professionallicense by an agency of the State (see 8 U.S.C. § 1621(c)(1)(A)). Before we analyze the statute’s application, we should first consider the context in which it was adopted. 8 U.S.C.section 1621(c) was enacted by Congressaspart of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (110 Stat. 2260; Pub. L. No. 104-1930)(hereafter “the Act”) which was designed torestrict welfare and public benefits for aliens. The Act, H.R.Rep. No. 3734, 104th Congress, 2nd Sess.pp. 2183-2893 (1996), was a bipartisan proposalto restrict the availability of state and local public benefits to unqualified aliens or nonimmigrants (1996 U.S. Code Cong. & Admin. News, p. 2770). This was Congress’ last attempt at a compromise bill to impose suchrestrictions. The previousbill proposals whose provisions were much morerestrictive were vetoed by President Clinton (see Id. at p. 2891). In passing this bill H.R.Rep. No. 3734, 104th Congress, 2nd Sess. pp. 2183-2893 (1996), Congress recognized the following: Under Plyler vs. Doe (457 U.S. 202 (1982)), States may not deny Illegal alien children access to a public elementary education without authorization from Congress. However, the -l- narrow 5-4 Supreme Court decision may imply that illegal aliens may be denied at least some State benefits and that Congress may influence the eligibility of illegal aliens for State benefits. Many, but notall, State general assistance laws currently deny illegal aliens means-tested general assistance. (id. at pp. 2770-2771) (Emphasis added.).! Congress recognized at that time, that, where a denial of benefits is not inconsistent with federal immigration law, the states have broader authority to deny benefits andthat states often do deny certain benefits to nonimmigrants (Jd. at p. 2504). Thus, 8 U.S.C. section 1621, as part of the Act, was intended by Congressto see howfar the federal government could go to compel the states and local governments to deny anystate or local public benefit to noncitizens whoare either not qualified aliens or nonimmigrants(Id. at p. 2767). Since the legislative history ofthe Actis virtually nonexistent as to the meaning of 8 U.S.C.section 1621 in the context of the questions raised before the Court, we can only surmise as to the alleged underpinnings of Congressional authority that would require this Court to deny Garcia’s admissionto the State Bar of California. ' See Berg, May Congress Grantthe States the Power to Violate the EqualProtection Clause- Aliessa v. Novello and T:itle IV ofthe Personal Responsibility and Work Opportunity Reconciliation Act of 1996,” (2002- 2003) 17 B.Y.U.J. Pub. L. 297. -2- ARGUMENT I. 8 U.S.C. Section 1621(c) Does Not Require The California Supreme Court To Adopt A Rule That Makes It Mandatory That Only Those Eligible For Admission To The State Bar Are Those Applicants Who Can Establish Lawful Presence In The United States. At the time that 8 U.S.C. section 1621 was enacted, Congress recognized that there was nofederal law barring legal temporary residents (i.e., nonimmigrants) from certain state and local benefits (/d. at pp. 2772). In enacting the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Congress assumed thatit had the authority to impose suchrestrictions on the granting of a state or local public benefit to someone whois unableto establish lawful presence in the United States. In this regard, we can find no authority for this proposition in the legislative history of the Act. Thus, weareleft to consider the words of the statute as it would apply to Garcia’s admission to the State Bar. Whenconsidering the “plain meaning”ofa statute, we find thatthe samerules that apply to the statutory interpretation ofa state statute also apply to the interpretation of a federal statute (see Caminetti v. United States (1917) 242 U.S. 470, [61 L.Ed. 442]. The meaning of the statute must, in the first instance, be sought in the language in whichthe act is framed,andifthat is plain, the sole function of the courts is to enforceit accordingto its terms (Jd. at pp. 452-453). Thus, in the absence of Congressionalintentto the contrary, where the language of the statute is plain and unambiguous, we mustconsiderthe statutory words in their ordinary and usual sense and with the meaning commonly attributed to them (/d. at p. 453). 8 U.S.C. section 1621(c)(1)(A)defines, in part, “State or local public benefit” as any professional license provided by an agencyofthe state. However,the statute does not define what is meant by an “agency ofthe state.” If we consider the ordinary and usual meaning of the words, we must look to its commonly used application in defining what we mean by an “agency ofthe state.” For example, in California, the California Public Records Act defines a “public agency” as any state or local agency (Gov. Code § 6252, subd. (d)). That act further defines “state agency”as “every state office, officer, department, division, bureau, board, and commission or other state body or agency, except those agencies providedfor in Article IV (except Section 20 thereof) or Article VI ofthe California Constitution (Gov. Code § 6252, subd.(f)). Thus, both the State Legislature and the Judiciary are specifically excluded from the definition of “state agency.” Another exampleis the definition of “public agency” for purposes of the California Environmental Quality Act (CEQA) (Division 13 (commencing with Section 21000) of the Public Resources Code, which defines “public agency”as “any state agency, board,or commission, any county, city and county,city, regional agency, public district, redevelopment agency,or otherpolitical subdivision” (Public Resources -4- Code § 21063.). The Resources Agency of the State of California has interpreted this to mean that “public agency” does not include the courts of the state or the agenciesofthe federal government(Title 14, California Code of Regulations, Sec. 15379; see Nelson v. County ofKern (2010) 190 Cal.App.4th 252, 269; Save Tara v. City ofWest Hollywood (2008) 45 Cal.4th 116, 128). Moreover, in construing the usual and ordinary meaning of the term “an agency of the state” we must construe the language in the context of the statute as a whole and the overall statutory scheme, and we give “significance to every word, phrase, sentence, and part of an act in pursuanceofthelegislative purpose” (Los Angeles Unified School District v. Superior Court (2007) 151 Cal.App.4th 759, 767-768). In this regard, we can find nolegislative history to the contrary and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 contains no definition of what it means by “an agency ofthe state.” Thus, we ask the Court to find that Congress did not intend to include state courts within the meaning ofan “agencyofthe state” as that term is used in 8 U.S.C.section 1621(c)(1)(A). We,therefore, urge the Court to adopt the most reasonable and plain meaning of the term “an agencyofthe state” and to hold as a matter of law that the term does not include the courts ofa state. A. 8 U.S.C. Section 1621(c)(2)(c) On Its Face Would Permit Garcia To Be Sworn In At A Mexican Consulate Or At Any Location Where HeIs Not Physically Present In The United States. If, for the sake of argument, this Court were to decide that 8 U.S.C. section 1621 applies to Garcia, then any exception provided bythestatute would also apply to Garcia. 8 U.S.C.section 1621(c)(2)(c) contains one such exception. That exception provides that the term “state or local public benefit” does not apply to the issuance ofa professional license to a foreign nationalnot physically present in the United States. This language is recognition that federal immigration law does have some limits with respect to state authority to issue professionallicenses to noncitizens. Again, the statute is bereft of any legislative history that might shed some light on this question. Nevertheless, ifwe apply this exception to Garcia, the Court may consider whether Garcia could be sworn in at a Mexican consulateorif he were to return to Mexico whether he may be sworn inthere. First, we must consider whatis meant by “not physically present in the United States.” If we apply theprinciples of statutory construction which wehave previously cited for this purpose, it seems plain that physical presence in a state wouldinclude physical presence in a foreign country orterritory. Certainly, “Estados Unidos de Mexico” or Mexico would constitute a foreign country and Garcia’s physical presencein that country would satisfy the meaning of 8 U.S.C. section 1621(c)(2)(c). Moreover, for purposesofestablishing physical presence outside the United States, it is well-established that a Mexican consulateis a “foreign state” (see Gerritsen v. De La Madrid Hurtado(9th Cir. 1987) 819 F.2d 1511, 1517; 28 U.S.C. § 1603(a) and (b)). In contrast, the federal statute also defines “United States” as “all territory and waters, continentalor insular, subject to the jurisdiction of the United States” (28 U.S.C. § 1603(c)). Thus, we may conclude from a reading of the language ofthe statute that consulate territory is not within the jurisdiction of the United States because as a “foreign state” the Mexican consulate is notterritory within the jurisdiction of the United States. As a foreign state, a Mexican consulate is entitled to immunity from jurisdiction of courts of the United States unless a specific exception applies, or unless some international agreementto which the United States is a party otherwise provides. (See Perez v. The Bahamas (D.D.C. 1980) 482 F.Supp. 1208, affd. (D.C. Cir.1981) 652 F.2d 186, cert. den. (1981) 454 U.S. 865, [70 L.Ed.2d 166].) In this connection, we note that when an applicantis notified that he or she has satisfied the requirements for admission to practice law in California, the applicant is advised that the Committee ofBar Examiners of the State Bar has obtained an order of the Supreme Court of California permitting him orher to take the attomey’s oath of office. The notice specifically states that the oath may be taken before anyone authorized to administer oaths and that if the applicant is currently residing outside of -7- California, it is not necessary for the applicant to return to California to take the attorney’s oath. The notice does not require that the applicant must be physically present in California or the United States to take the oath. Thus, Garcia could proceed to a local Mexican consulate or step across the United States border, to Canada or Mexico, and be admitted to the practice of law in California as long as he is sworn in by someoneauthorized to administer oaths under California law. B. No Other Federal Or State Law Preempts Or Applies To The Court’s Authority To Set The Requirements ForIndividuals To Practice Law In A State Court. , In California, the California Supreme Court has exclusive jurisdiction over state bar admission (see Jn re Lavine (1935) 2 Cal.2d 324, 327-329; hereafter “Lavine”). Lavine involved a 1933 “pardon statute” which purported to reinstate, or to direct the Court to reinstate, without a showing of moral rehabilitation, an attorney who had received an executive pardon of an offense upon which his or her disbarment was based (/d.at p. 329). The Court held that the statute was unconstitutional and void as a legislative encroachmentupon the inherent power of the Court to admit attorneysto the practice of law and was tantamountto the vacating of a judicial order by legislative mandate (Jbid.). Thus, this Court held that an “attorney is an officer of the court and whether a person shall be admitted is a judicial, and nota legislative, question (Jd.atp. 328). Althoughthe Legislature may determine additionalcriteria for admission to the State Bar,that criteria is at best a minimum standardto be considered by the Court (/d. at p. 328). Section 6060.6 of the Business and Professions Codeis a good exampleofthis balanceof authority that exists among the legislative, judicial, and executive branches of government. That section allows the Committee of Bar Examinersto accept, and the State Bar to process, an application from an individual containing a federal tax identification number, or other appropriate identification number as determined by the State Bar, in lieu of a social security number,if the individualis noteligible for a social security account numberat the time of the application and is not in noncompliance with a judgmentor order for child or family support pursuant to section 17520 of the Family Code(see also Cal. Rules of Court, rule 9.22). Thus, the Legislature may proscribe someofthe terms for admission to the practice of law in California courts if those termsare reasonable and do “not deprive the judicial branch ofits powerto proscribe additional conditions under which applicants shall be admitted, nor take from the courts the right and duty of actually making orders admitting them” (Lavine, supra at p. 328; see Bus. & Prof. Code § 6060). Theright to practice law presupposesin an applicant integrity, legal standing and attainment, but also the exercise ofa special privilege,that is highly personal and in the nature ofa public trust, the granting ofwhich privilege -9- to an individual is concededto be the exercise of a judicial function (Lavine, supra at pp. 327-328). With respect to federal preemption,it has long been recognized by the United States Supreme Court that federal authorities have no power over the admission of an applicant or an attorney to a state bar except to correct a state’s constitutional violation (see Schware v. Board ofBar Examiners (1957) 353 U.S. 232, 238-239, [1 L.Ed.2d 796]; hereafter “Schware’”). In Schware, the Board ofBar Examiners ofNew Mexico and the state’s supreme court had denied the applicant’s opportunity to take the bar examination because ofhis past affiliation as a member of the CommunistParty (/d. at pp. 237-238). The Court recognized that mere membership in the Communist Party without any evidence that the individualactively advocated the violent overthrow of the United States andthe lack of any evidence of moralturpitude does not justify an inferencethat an applicant presently has bad moral character (Id. at pp. 242-246). Thus, the Court found that a state cannot exclude an individual fro m the practice of law in a manneror for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendmentto the United States Constitution (/d. at pp. 238-239). In makingits ruling, the Court recognized that a state can require high standards of qualification, such as good moral character or proficiency inits law, before it admits a n -10- applicant to the bar, but that any qualification must have a rational connection with the applicant’s fitness or capacity to practice law (/d.at p. 239; accord, Konigsberg v. State Bar ofCalifornia (1957) 353 U.S. 252, [1 L.Ed.2d 810]; hereafter “Konigsberg”). In Konigsberg, the companion case to Schware, the Court held, amongother things, that in reviewing the state’s denial of an individual’s right to practice law on federal constitutional grounds,the Court is justified in searching the record to determine whetherthe applicant’s failure to prove his good moral character andhis loyalty to the United States has a reasonable basis in the evidence (Id. at pp. 262-264). Thus, in the absenceof a violation of a federal constitution right, under whatother theory may federal authorities exercise power over the admission of an applicantto a state bar? We next consider whether Congress’ plenary power over immigration matters would compel this Court to exclude applicants who are otherwiseeligible to practice law in California from admissionto the State Bar.In this regard, recent developments in immigration law have a bearing on this question. On June 15, 2012, Secretary Janet Napolitano of the United States Department ofHomeland Security announced “that effective immediately, certain young people who were broughtto the United States as youngchildren, do notpresenta risk to national security or public safety, and meetseveral key criteria will be considered for relief from -ll- removalfrom the country or from entering into removal proceedings.” Garcia meetsall of the key criteria except for one; he is above the age of thirty. The young people who would otherwise be categorized as unqualified aliens or nonimmigrants under 8 U.S.C. section 1621 are undocumentedor lack lawful presence in the United States. Pursuantto Napolitano’s directive, these young people will be considered for relief from removal from the country or from entering into removal proceedings and will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization. This illustrates the complexity and arbitrariness of federal immigration law. But for his age, Garcia, under this new exception created in the absence of congressionalaction, would be authorized to work. In Arizona v. United States (2012) 567 U.S. _; 183 L. Ed. 2d 351 the syllabus of the United States Supreme Court’s opinion sets forth the federal government’s broad, undoubted power over immigration and alien status, which “rests, in part, on its constitutional powerto ‘establish an uniform Rule ofNaturalization,’ Article I, Sec. 8, clause 4 of the United States Constitution, and onits inherent sovereign power to control and conduct foreign relations(Id. at p. 366). It follows, as stated by the Court, that the Supremacy Clause gives Congress the power to preemptstate law > Janet Napolitano, Secretary ofU.S. Department of Homeland Security, Press Release (June 15, 2012) -12- and that state laws are preempted whenthey conflict with federal law, including when they stand“as an obstacle to the accomplishment and execution ofthe full purposes and objectives of Congress.” (see Hinesv. Davidowitz (1941) 312 U.S. 52, 67).Thus,this Court must consider whether admitting Garcia to the State Bar would stand as an obstacle to the accomplishment and executionofthe full purposes andobjectives of Congress. In this regard, we must ask whether granting Garciaa license to practice law in a state court in California stands as an obstacle to the accomplishment and execution ofthe full purposes and objectives of the Immigration Reform and Control Act of 1986 (IRCA), the comprehensive framework for “combating the employmentofillegal aliens” (see Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137, 147) because Garcia would be able to engage in unauthorized employment. As Garcia has already demonstrated in his brief in chief and as the record demonstrates Garcia has not engaged in any unauthorized employmentin supporting his family and in paying for his education and would be able to engage in employmentthat would not violate any federal immigration law. Thus, this Court has no reasonto believe that if Garcia is licensed to practice law in California state courts that he will use that license to violate federal immigration law. -13- Finally, we think that the federal constitutional Commerce Clause, Article I, Section 8, Clause 3 of the United States Constitution, may not be used to support federal authority over the Court’s exclusive jurisdiction to determine who maybeauthorized to practice law in a state court. Weraise this issue because it has been previously presented before this Court that granting Garcia a license to practice law in California state courts is tantamountto granting him a license to engage in employment and he is not authorized to engage in such employment underfederal immigrationlaws. With this in mind, we should pointout that the act of taking the oath to becomean attorney and counselorat law licensed to practicein all the courts of the state does not compel Garcia to practice atall. It doesn’t even compelhim to engage in any activity that would meetthe definition of interstate commence (National Federation ofIndependent Businessv. Sebellius (June 28, 2012, Nos. 11-393, 11-398, 11-400) 567 U.S. __ [2012 U.S. LEXIS 4876] hereinafter “Sebellius”’). Congress’ power to regulate commerce presupposesthe existence of commercial activity to be regulated (Jbid.). The United States Supreme Court held that this Court’s precedentreflects the following understanding: As expansive as this Court’s cases construing the scope of the commerce power have been, they uniformly describe the poweras reaching “activity.” (Id. at p. 43; see, e.g., United States v. Lopez (1995) 514 U.S. 549, 560). Thus,the federal Commerce Clause may only reach existing commercial -14- activity and not those who choose not to engagein that activity. With no doubt, Congress or the United States Supreme Court may regulate who may practice in a federal court, but not in a state court.? In Sebellius, the Court recognized construing the Commerce Clause to permit Congressto regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressionalauthority (Sebellius, supra at p. 45). Thus, we can find no other federalor state law that would preempt or apply to the Court’s authority to set the requirements for individuals to practice law in California state courts or provides federal authority and poweroverthe admission of an applicantto the State Bar except to correct a state’s constitutional violation. 3 The Real ID Act of 2005, 119 Stat. 302, enacted May 11, 2005, seeks to compelstates to adopt certain standards by January 15, 2013, for a state driver’s license, which presently entitles the licensee to drive anywhere in the United States or a U.S. territory, by imposing requirements,the noncompliance of which, would deny licensees access to federal buildings and air travel. However,the driver’s license from a noncomplyingstate wouldstill be valid and honored by anotherstate. Thus, Congress lacks the authority to compel compliance except where it has the federal constitutional powerto do so(i.e., Commerce Clause, national security, etc.). Moreover, section 12801.5 of the Vehicle Code, which requires satisfactory proof that an applicant’s presencein the United States 1S authorized underfederal law,is not required by any federal law. -15- Il. If 8 U.S.C. Section 1621(c) Is Applicable, Then An Exception Exists Pursuant To 8 U.S.C. Section 1621(d) Because California Law As Provided For By The Legislature Or An Order Of The California Supreme Court Admitting Garcia To The State Bar Would Constitute Enactments OfA State Law After August 22, 1996, Which Affirmatively Provides For SuchEligibility. Evenif 8 U.S.C. section 1621(c) were to apply, 8 U.S.C. section 1621(d), provides for exceptions wherein individuals whoare foreign nationals, including Garcia, may be admitted to the State Bar. 8 U.S.C. section 1621(d) provides the following: “A State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) only through the enactment of a State law after August 22, 1996, which affirmatively providesfor such eligibility. (Italics added.) Thus, the Congress did not intend to preemptstate law in all respects, allowing for exceptions with changesin state law orrules after August 22, 1996. A. | Amendments To Business And Professions Code Section 6060 After August 22, 1996, Allows ForIndividuals To Be Admitted To The State Bar Even If They Are Foreign Nationals. This Court held that citizenship is not a requirement to be admitted to the State Bar. (Raffaelli v. Committee ofBar Examiners (1972) 7 Cal.3d 288.) A year later, the United States Supreme Court held that a foreign citizen could not be barred from taking the Connecticut Bar exam.(Jn re -16- Griffiths (1973) 413 U.S. 717.) In so doing, the United States Supreme Court noted; In 1873, this Court noted that admission to the practice of law in the courts of a state “in no sense depends on citizenship of the United States. It has not, as far as we know, ever been made in any state, or in any case, to depend on citizenship at all. Certainly many prominent and distinguished lawyers have been admittedto practice, both in the State and Federal courts, who were notcitizens of the United States or of any State. (Citation omitted).” (Id. at 719.) In the 40 years since these cases were decided,citizenship requirements and even state residency requirements* have beenstricken from the requirements for admission to the State Bar. During the 1995-1996 Regular Session, the State Legislature submitted to the governor, Senate Bills 1321 and 1950. Thebills made affirmative changes to Business and Professions Code section 6060 to allow for individuals whostudied law in foreign states or countries as well as those who were licensedto practice in foreign countries to become members of the State Bar. A plain reading of the amendmentindicates that individuals from foreign countries could attain membership in the State Bar. According to the Legislative Counsel’s Digest for Senate Bill 1321 whenit wasintroduced,it affirmatively added these new provisionsrelating to out-of-state or foreign attorneys. 4 In Supreme Court ofNew Hampshire v. Piper (1984) 470 USS. 274,the U.S. Supreme Court struck down thein-state residency requirement for admission to the New Hampshire Bar. -17- _Thebills were approvedby the governor on September24, 1996, andfiled with the Secretary on September 25, 1996, a month after August 22, 1996. While the practice of law can include appearancein state courts, many attorneys rarely make an appearancein court andare primarily involved in giving legal advice, legal research, reviewing records, drafting contracts, etc. However,in order to give legal advice, one must be a memberofthe State Bar. Once admitted, an attorney can live, work, and reside in another state or country, so long as he or she complies with continuing education credits and otherwise complies with the rules to maintain good standing. Technology is abundant to perform legal research, communications with clients, continuing education,all ofwhich can be accomplished without residing in California or the United States. Thus, California rejected residency requirementsin this state or even in this country to be admitted to the State Bar when it amended Business and Professions Code Section 6060° in Septemberof 1996. Individualslike Garcia, who has compliedwith all requirements of the State Bar, should not be denied admission solely because he has not received permanent residence status, where no such requirementexists. > The Legislature also enacted Business and Professions Code section 6060.6 in 2005 allowing for individuals to provide identification numbers other than Social Security or Tax Identification numbersas determined by the State Bar when applying or renewinga license to practice law in California. -18- B. In Setting Standards For Admission To The State Bar, The Court Acts In A Legislative Capacity And Any Holding Of The Court In The Form Of An Order, Decision, Opinion, Decree Or Rule, Is A State Law. This Court has inherent authority over the admission and discipline of attorneys in California and this authority has long been recognized (Cal. Rules of Court, Rule 9.2, citing subd. (d) and (f) ofsec. 18, art. VI, Cal. Const.; Stratmorev. State Bar (1975) 14 Cal. 3d 887, 889). Moreover, this Court has the authority to adopt rules relating to the regulation of the admission and discipline of attorneys. (Jn re Atty. Discipline Sys. (1998) 19 Cal.4th 582. Asthis Court has stated: “Indeed, every state in the United States recognizes that the power to admit and to discipline attorneys rests in the judiciary. [Citation.] ‘This is necessarily so. An attorney is an officer of the court and whether a person shall be admitted [or disciplined] is a judicial, and not a legislative, question.’ [Citations.]” (Hustedt v. Workers’ Comp. Appeals Bd. (1981) 30 Cal. 3d 329, 336-337 [178 Cal. Rptr. 801, 636 P.2d 1139], fns. omitted.) “This principle, which was first recognized in California in 1850 [citation], has been reaffirmed on numerousoccasions. [Citations.]’ (Id. at p. 336, fn. 5; see also In re Shannon (1994) 179 Ariz. 52 [876 P.2d 548, 571] [“The judiciary’s authority to regulate and control the practice of law is universally accepted and dates back to the year 1292.”}; Martineau, The Supreme Court and State Regulation of the Legal Profession (1980-1981) 8 Hastings Const. L.Q. 199, 202 [‘In each state it is the supremecourt, with or without the legislative approval, that dictates the standards for education, admission and discipline of attorneys.’ (Fn. omitted.)].) 6 Our more recent decisions have continued to recognize this power.” (E.g., Santa Clara County Counsel Attys. Assn. Vv. Woodside (1994) 7 Cal. 4th 525, 542-544 [28 Cal. Rptr. 2d 617, 869 P.2d 1142}; Howard v. Babcock (1993) 6 Cal. 4th -19- 409, 418 [25 Cal. Rptr. 2d 80, 863 P.2d 150, 28 A.L.R.Sth 811].) (In re Atty. Discipline Sys., supra, 19 Cal.4th at 592-593.) This Court has also noted that: “Witkin has described our authority in this area as follows: ‘The important difference between regulation of the legal profession and regulation of other professions is this: Admission to the bar is a judicial function, and members of the bar are officers of the court, subject to discipline by the court. Hence, under the constitutional doctrine of separation of powers, the court has inherent and primary regulatory power. [Citations.]’” (1 Witkin, Cal. Procedure (4th ed. 1996) Attorneys, § 356, p. 438, originalitalics.) (/d. at 593.) This Court has held that legislative enactmentsrelating to the admission to practice law in this State are «valid only to the extent they do not conflict with the rules for admission adopted or approved by the judiciary. When conflicts exist, the legislative enactment must give way.” (Merco Constr. Engineers, Inc.v. Municipal Court (1978) 21 Cal.3d 724°, 728-729.) Rule 9.30 of the Rules of Court adopts Business and Professions Code Section 6060 (e) (2)’ which allowsfor individuals who studied law in a foreign state or country to receive credit for that study in order to take the 6 In Merco Constr. Engineers, Inc., Civil Procedure Code Section 90asi t existed then, allowed for a corporate party in municipal court to appear through a director or other employee regardless of whether that individual was an attorne y or not. This Court held that the statute offended the separation of powers claus e of the Constitution and had no force andeffect. 7 Bus. Prof. Code section 6060 was amended and enacted after Aug ust 22, 1996,the most recent amendmentto section (a) of Rule 9.30 became effectiv e January 1, 2007. -20- bar examination. ([bid.) Moreover,foreign attorneys can be authorized to practice in this state without taking a bar examination’. Therefore, this Court hasthe inherent authority to affirmatively rule that an individual need not be a permanent resident of the United States to be admitted to practice law in the State of California. In effect, it would be the law in the State of California asit applies to membership in the California State Bar post August 22, 1996 (see Cooper v. Swoap (1974) 11 Cal.3d 856, 886 (J. Clark, dissenting: “The California Constitution makesthis court the final authority on matters of state law. (Cal. Const., art. VI, sec. 1)”). Thus, foreign nationals including Garcia can and should be admitted if he or she has otherwise complied with the requirements to become a memberofthe California Bar. //1 /// /// /// /// /// /// /// 8 Rule 9.44 of the Court Rules allows for foreign attorneys to becomelegal consultants to render legal service without taking the Bar Examination. No California legislation is cited as the basisfor the rule. -21- CONCLUSION For the foregoing reasons, amici respectfully urge this Court to grant the Committee of Bar Examiners’ Motion to Admit Sergio C. Garcia as a memberofthe California State Bar without further delay. Dated: July 17, 2012 Respectfully submitted, Anthony P. Marquez, and Joshua Kaizuka By: Arttermy Sf, byepons Anthony P. Marquez Attorneys for Amicus Curiae La Raza Lawyers Association of Sacramento Asian/Pacific Bar Association of Sacramento -22- CERTIFICATION OF COMPLIANCE Pursuant to Rule 8.204(c)(1), California Rules of Court, the undersigned hereby certifies that this BRIEF OF AMICI CURIAE THE LA RAZA LAWYERSASSOCIATION OF SACRAMENTO AND THE ASIAN/PACIFIC BAR ASSOCIATION OF SACRAMENTOIN SUPPORT OF THE COMMITTEE OF BAR EXAMINERS’ MOTION FOR ADMISSION OF SERGIO C. GARCIA TO THE STATE BAR OF CALIFORNIA contains 5,440 words, excluding the tables andthis certificate, according to the word count generated by the computer program used to produce this document. Dated: July 17, 2012 By: Afrttteong, &. yyy AxtthonyP. Marquez Attorneys for Amicus Curiae La Raza Lawyers Association of Sacramento Asian/Pacific Bar Association of Sacramento -23- DECLARATION OF SERVICE BY OVERNIGHT DELIVERY I am employed in Sacramento County, California. I am over the age of 18 years, and I am nota party to the within action. My business address is 1115 H Street, Sacramento, CA 95814. On July 17, 2012,I served the following documents: ° BRIEF OF AMICI CURIAE. by placing a true copy in a sealed envelope designated by Federal Express for overnight delivery, with delivery fees fully paid, addressedto: Rachel Simone Grunberg Committee of Bar Examiners of the Office of the General Counsel, State State Bar of California Bar of California 1149 S. Hill Street 180 Howard Street Los Angeles, CA 90015 San Francisco, CA 94105-1639 Telephone: (415) 538-2300 Telephone: (415) 538-2309 Jerome Fishkin Fishkin & Slatter LLP 1575 Treat Boulevard, Suite 215 Walnut Creek, CA 94598 Telephone: (925) 944-5600 and then depositing the envelope in a box regularly maintained by Federal Express. I declare underthe penalty ofperjury under the laws of the State of California that the foregoing is true and correct. Dated: July 17, 2012 Anthony P. Rtarquez - 24 -