Southern Calif. Institute of Law v. State Bar of Calif. CA2/1 ( 2016 )

Filed 4/13/16 Southern Calif. Institute of Law v. State Bar of Calif. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
SOUTHERN CALIFORNIA INSTITUTE B263251
OF LAW, INC.,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC531619)
v.
STATE BAR OF CALIFORNIA, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Los Angeles Superior Court, Barbara M.
Scheper, Judge. Affirmed.
Kevin Mauseth, Evan Michael Hess for Plaintiff and Appellant.
Kerr & Wagstaffe, James M. Wagstaffe, Michael von Loewenfeldt, and Kevin
B.Clune; Lawrence C. Yee, Rachel S. Grunberg, General Counsel, State Bar of
California, for Defendants and Respondents.
_______________________
Introduction
In this lawsuit, plaintiff and appellant Southern California Institute of Law, Inc., a
law school accredited by the State Bar of California (but not by the American Bar
Association), sues the State Bar and its Committee of Bar Examiners, as well as about
two dozen present and former Committee members. The suit seeks to thwart the Bar’s
efforts to enforce adherence to certain rules and guidelines in order to maintain the
school’s eligibility for accreditation.
A previous federal-court action seeking this result based on charges of
constitutional and civil-rights law violations ended in dismissal. This state-court action,
comprised of 435 paragraphs of similar (and sometimes identical) claims, was removed
to federal court where its federal claims were dismissed before it was remanded for
disposition of any remaining state-law claims.
The superior court dismissed six causes of action pursuant to the defendants’ anti-
SLAPP motion, then sustained demurrers to the remaining six causes of action. Finding
no merit in the plaintiff’s appeal from these results, we affirm the judgment.
Background
The California State Bar and Committee of Bar Examiners
Respondent State Bar of California is a public corporation whose membership
consists of all persons licensed to practice law in this state. (Cal. Const., art. VI, § 9.)
The State Bar acts as an arm of the Supreme Court with respect to regulation and control
of admission to the State Bar. (Obrien v. Jones (2000) 23 Cal.4th 40, 48; Brotsky v. State
Bar of California (1962) 57 Cal.2d 287, 300.) The State Bar’s Committee of Bar
Examiners (CBE) is responsible for the approval, regulation, and oversight of law schools
in the state. (Bus. & Prof. Code, § 6060.7, subd. (b)(1).) It is authorized to examine all
applicants for State Bar admission, and to administer the requirements for admission to
practice law. (Bus. & Prof. Code, § 4046, subds. (a) & (b).) An applicant may be
admitted only by order of the Supreme Court, after certification by the CBE that all
requirements for admission are fulfilled. (Bus. & Prof. Code, § 6064; Saleeby v. State
Bar (1985) 39 Cal.3d 547, 557.)
2
Among the three types of law schools whose graduates are eligible to take the
California bar examination are California Accredited Law Schools (CALS), consisting of
law schools accredited by the CBE, but not by the ABA. (Bus. & Prof. Code, § 6060,
subds. (e), (h).)1 Appellant Southern California Institute of Law, Inc. (SCIL) is in the
CALS category.
ALS Rules and Guidelines
Under the Accredited Law School Rules of the State Bar (ALS Rules) the CBE
has discretion over whether to grant or (subject to Supreme Court review) to terminate a
law school’s accreditation. (ALS Rules 4.146, 4.175(B), 4.176, 4.177.) The
interpretation and application of the ALS Rules are governed by CBE-adopted Guidelines
for Accredited Law School Rules (ALS Guidelines). (ALS Rule 4.103.) CALS are
subject to CBE inspection at least every five years for compliance with CBE
accreditation rules and guidelines. (ALS Rule 4.162.) The CBE has discretion to waive
any rule in order to provide a school with time to come into compliance, “but a waiver is
temporary,” and “[a] request to renew a waiver must be filed with the [school’s] Annual
Compliance Report.” (ALS Rule 4.109.)
SCIL’s contentions (set forth in 435 paragraphs in an 85-page first amended
complaint) challenge three specific sets of ALS rules and guidelines. The “minimum
cumulative bar exam pass rate” rule deals with the requirement of ALS Rule 4.160(M),
which became effective January 1, 2013. It requires that CALS must maintain a
minimum cumulative bar examination pass rate, to be determined by the CBE, for the
CBE’s use in evaluating “the qualitative soundness of a law school’s program of legal
education.” (ALS Rule 4.160(M).) ALS Guideline 12.1 provides that the minimum
cumulative bar examination pass rate that CALS must maintain—beginning January 15,
1
The other two types of law schools whose graduates are eligible to take the
California bar examination are law schools approved by the American Bar Association
(ABA-accredited law schools), and law schools that are neither approved by the ABA nor
accredited by the CBE but that meet certain other requirements and whose graduates have
passed a CBE-administered “baby bar” examination after their first year of law study.
(Bus. & Prof. Code, § 6060, subds. (e), (h).)
3
2015—is at least 40 percent for the most recent five-year reporting period, to be reported
on or before July 1 of the year following each reporting period. ALS Guideline 12.2
provides that the CBE “may issue a Notice of Noncompliance” to a school that is not in
compliance by September 15, 2014; that a law school that fails to report its compliance
by July 1, 2016, “will be placed on probation”; and that a school that does not meet the
terms of its probation by the end of 2017 “will be subject to the loss of its accreditation.”
(ALS Guideline 12.2.)
The second of the challenged rules and guidelines is ALS Guideline 2.3(D), the
bar examination pass-rate disclosure requirement. ALS Guideline 2.3(D)(i) and (ii)
requires CALS to provide information in their course catalogs or student handbooks, and
on the school’s Web site, disclosing the “pass rates of its graduates on the ten most recent
administrations of the California Bar Examination,” either by posting the pass rates
themselves or by posting an active link to the page of the State Bar Web site that has the
bar exam statistics. (ALS Guideline 2.3(D)(i) & (ii).)
The third of the rules and guidelines challenged by the plaintiff’s lawsuit is ALS
Guideline 6.7, referred to as the “biennial class offering requirement.” ALS Guideline
6.7 provides that CALS must offer required advanced courses a minimum of every two
years, and must offer first-year courses annually.
SCIL v. Biggers—the federal lawsuit
On February 4, 2013, shortly after ALS Guidelines 12.1, 12.2, and 2.3(D) went
into effect, SCIL filed a federal court lawsuit entitled Southern California Institute of
Law v. Archie “Joe” Biggers, et. al, SACV 13-193 JVS (RNBx) (SCIL v. Biggers). The
SCIL v. Biggers lawsuit, against 22 current and former CBE members in their individual
and official capacities (but not the State Bar itself), charged that the revisions of ALS
rules and guidelines and enforcement of requirements with respect to course offerings
and continued accreditation, violate SCIL’s rights under federal civil rights laws and the
First and Fourteenth Amendments to the United States Constitution.
The SCIL v. Biggers pleading’s first claim for relief charges that the changes to
ALS Guidelines 12.1 and 12.2, effective January 1, 2013, violate the Due Process Clause
4
of the Fourteenth Amendment, they lack substantial evidence and rational basis, they
were enacted in disregard of State Bar governing procedures, and they constitute an
exercise of legislative and executive power by the judicial branch of government in
violation of separation of powers under the California Constitution. The pleadings’
second claim charges that ALS Guideline 2.3(D)(i) and (ii), requiring disclosure of bar
passage rates, violates SCIL’s rights of commercial free speech under the First and
Fourteenth Amendments. The third claim charges that the CBE’s decision, “without fair
and impartial process,” not to renew a waiver of enforcement of the biennial class
offering requirement that SCIL had been granted in the past, violates SCIL’s Fourteenth
Amendment due process rights. For these claims SCIL sought injunctive and declaratory
relief barring enforcement of these rules and guidelines, as well as compensatory and
punitive damages and attorneys’ fees and costs.
On June 12, 2013 and August 19, 2013, the federal district court granted the
defendants’ motion to dismiss SCIL v. Biggers.2
SCIL v. The State Bar—the state-court lawsuit
While its appeal in SCIL v. Biggers was pending in the Ninth Circuit Court of
Appeals, on December 31, 2013, SCIL filed the action underlying this appeal in the Los
Angeles Superior Court. (Southern California Institute of Law v. The State Bar of
California, et al. (LASC No. BC531619) (SCIL v. State Bar). The state-court lawsuit
names as defendants the State Bar and the CBE, as well as 23 present and former CBE
members in their individual and official capacities (with less than a handful of
exceptions, the same as those sued in SCIL v. Biggers). SCIL alleges in its first amended
complaint that it is a part-time evening law school founded in 1986, accredited by the
State Bar in 1996, with approximately 90 to 100 students who attend campuses in
Ventura and Santa Barbara. It alleges that it caters to working students, many of whom
have minimal pre-law backgrounds and are members of underrepresented ethnic and
racial groups. And it alleges that its claims “detail a denial of procedural due process
2
The court initially dismissed the second of the three causes of action without
prejudice to amendment, an offer SCIL declined.
5
instigated by malevolent motive.” “In a nutshell,” the lawsuit “is about the limits of state
power and the application of state procedural and substantive due process, as well as
accountability for the malicious misuse and abuse of governmental powers under the state
and federal constitutions.”
In six of the state-court lawsuit’s 12 causes of action, SCIL alleges (as had the
original federal-court lawsuit) that the CBE’s enforcement of the challenged rules and
guidelines—the minimum cumulative bar exam pass-rate rule, the required disclosure of
bar-examination pass rates, and the biennial class offering requirement—violate state and
federal law. The remaining six causes of action (the 1st, 2nd, 4th, 5th, 6th, & 12th causes
of action) allege the defendants’ malicious, unlawful, and unconstitutional conduct at or
in connection with a June 28 and 29, 2013 CBE meeting, in alleged retaliation for SCIL’s
filing of the SCIL v. Biggers lawsuit. SCIL alleges in these six causes of action that the
defendants violated SCIL’s rights, by advising SCIL in a July 3, 2013 letter, that a
communication SCIL had made to some of its graduating students did not comply with
ALS rules and guidelines, and requiring SCIL to correct that noncompliance.3
The state-court action is removed to federal court, its federal claims are dismissed,
and its state-law claims are remanded.
On February 7, 2014, the defendants removed the SCIL v. State Bar action to the
United States District Court. (CV 14-00996 JVS (RNBx).) With respect to the first,
3
The federal district court summarized the circumstances giving rise to SCIL’s
retaliation claims: “In June 2013, after certifying to CBE that students who had
graduated that month had fulfilled their graduation requirements, SCIL sent letters to
some students who had not taken a post-graduation practice bar exam. The letters stated
that SCIL would take steps to decertify those students to prevent them from sitting for the
bar examination that July. SCIL has no authority to decertify students once they have
completed their graduation requirements. CBE reviewed the complaints of several
concerned students at a meeting on June 28 and 29, 2013, and on July 3, 2013, sent a
letter to SCIL informing the school that such conduct appeared to be in violation of ALS
Rules and ALS Guidelines. CBE instructed SCIL to advise graduates who had received
the letter that their eligibility to sit for the bar examination was not in danger, and that if
SCIL did not comply, a notice of noncompliance would be issued.” SCIL did comply,
and no notice of noncompliance was issued.
6
second, fourth, and twelfth claims, the district court held that the accreditation of law
schools is ancillary to oversight of the admissions process, the authority for which is
granted by statute to the California Supreme Court (Bus. & Prof. Code, §§ 6060, 6060.7),
of which the defendant State Bar, and its CBE, is an arm. The State Bar’s enforcement of
rules relating to accreditation of law schools, assisting the Supreme Court, is an exercise
of judicial power for which federal law provides absolute immunity. The defendants
therefore are protected by common law immunity to the extent these claims seek relief
under federal law; and even if they are not absolutely immune, SCIL’s federal theories
fail to state a claim on which relief can be granted, requiring their dismissal with
prejudice. The court also held that SCIL’s due process claims would necessarily fail
because SCIL had been deprived of no protectable liberty or property interest; and its
equal protection claims of selective and malicious enforcement would also fail, because
the claim of disparate treatment “‘does not apply to forms of state action that “by their
nature involve discretionary decisionmaking based on a vast array of subjective,
individualized assessments,”’” such as the discretion vested in the CBE.
Holding that the claims of the defendants’ retaliation against SCIL at the June 28
and 29, 2013 meeting “must fail,” the district court explained: Despite SCIL’s
characterization of the meeting as having resulted in findings of fact and adjudication of
SCIL’s violations of ALS Rules and Guidelines, its pleading and attached materials show
that “no such things occurred.” The meeting resulted in no notice of noncompliance to
SCIL, and no adverse action with regard to SCIL’s accreditation. The pleading shows
only that CBE responded to an apparent violation of ALS Rules by informing SCIL of
the proper rule and telling it to rectify its violation before a notice of noncompliance was
issued. “Here, as with the due process claim, CBE took no action that actually affected
SCIL’s accreditation or any other property or liberty interest. Thus, the claims rooted in
retaliation for the exercise of First Amendment rights must fail.”
The district court remanded to state court the third, fifth, sixth, seventh, eighth,
ninth, tenth, and eleventh claims, and also any state-law claims under the first, second,
7
fourth, and twelfth causes of action. It denied, as moot, the defendants’ special motion to
strike under California’s anti-SLAPP statute.
State court sustains demurrer, grants special motion to strike, and denies
preliminary injunction.
On June 16, 2014, the defendants demurred, and filed a special motion to strike
the retaliation claims of the first, second, fourth, fifth, sixth, and twelfth causes of action
under the anti-SLAPP statute, Code of Civil Procedure section 425.16. Requests for
judicial notice (RJN’s) accompanied both the demurrer and the anti-SLAPP special
motion to strike.4 SCIL also moved for a preliminary injunction barring enforcement of
the challenged guidelines as to SCIL.
On February 2, 2015, the superior court denied SCIL’s preliminary injunction
motion. On February 18, 2015, it granted the defendants’ anti-SLAPP motion as to the
retaliation causes of action (the 1st, 2nd, 4th, 5th, 6th, & 12th causes of action). It found
that SCIL’s retaliation claims are based on the defendants’ protected activity—
communications made in connection with quasi-judicial proceedings—thereby shifting to
SCIL the burden to show a likelihood of prevailing on the merits; and that SCIL was
unable to show a likelihood of prevailing on these claims. It held that the defendants’
alleged conduct constitutes privileged communicative acts (Civ. Code, § 47, subds. (a) &
(b)); that claims based on common-law torts cannot be asserted against the State Bar or
CBE (Gov. Code, §§ 814, 815); and that SCIL failed to show that the defendants’ alleged
conduct was either unconstitutional or deprived SCIL of any cognizable property
4
The defendants’ RJN of 18 documents in support of their demurrers refers to
their simultaneous RJN of documents in support of their special motion to strike—some
documents apparently appearing in both requests. Only the RJN in support of the
demurrer is included in respondent’s appendix, but some of the requested documents
(apparently those overlapping with their RJN in support of the anti-SLAPP motion) are
not attached. Appellant’s appendix contains neither of these RJN’s.
8
interest.5 After SCIL declined to amend, the court sustained the demurrers to the
remaining causes of action with prejudice.
The court’s detailed written opinion explains its reasons. With respect to the third
cause of action’s challenge to the biennial course-sequencing requirement of ALS
Guideline 6.7, the court held that the CBE’s previous waiver of enforcement of the
requirement was not a “statutorily conferred benefit,” and nothing in the ALS Rules or
Guidelines required the CBE to grant or extend the waiver.
With respect to the minimum bar exam pass-rate requirement of ALS Guidelines
12.1 and 12.2 (challenged in the 6th, 7th, 8th, 9th, 11th causes of action), the court found
that SCIL’s claim is not ripe for adjudication. Although the CBE allegedly warned SCIL
that its apparent violation, if uncorrected, could lead to probation and eventual loss of
accreditation, SCIL was neither placed on probation nor was its accreditation withdrawn.
Moreover, the imposition of probation is not mandatory: Under ALS Guideline 12.2, a
failure to comply with the 40 percent pass-rate requirement will not result in probation
until the end of 2016, and a school will not even be “subject to” loss of its accreditation
for such a failure until the end of 2017, “at the earliest.” (ALS Guideline 12.2, italics
added.) Before that, SCIL would be entitled to a hearing on the issue; and even then, the
CBE still would have discretion to take any appropriate lesser action affecting the
school’s accreditation or provisional accreditation. (ALS Rule 4.175.) Therefore, the
court held, SCIL showed no more than a fear of a potential loss with respect to
accreditation, but no actual loss. The court also rejected SCIL’s claims that the
challenged guidelines violate the Administrative Procedure Act; that they violate
executive-branch powers; that they are retroactive, or are presumptively unconstitutional;
that SCIL’s accreditation is a vested right; that they are either irrational, arbitrary, or ultra
vires; that the CBE’s Rules Advisory Committee’s participation renders the guidelines’
adoption void; or that the guidelines violate SCIL’s or its faculty’s freedom of speech.
5
The formal order granting the anti-SLAPP motion was filed March 3, 2015.
9
With respect to SCIL’s challenge to ALS Guideline 2.3(D), requiring publication
of bar exam pass-rate information (7th, 8th, 10th, & 11th causes of action), the court
found that the defendants did not lack a rational basis for requiring the disclosure; that the
requirement is reasonably related to defendants’ interest in preventing deception; and that
it is justifiable as part of the regulatory scheme constraining law school accreditation.
On March 30, 2015, the trial court dismissed the state-court case with prejudice.
On April 8, 2015, SCIL filed this appeal “from the following judgment or order in this
case,” specifically identifying the appealed orders as “March 03, 2015 Order Granting
Special Motion to Strike (Anti-SLAPP) under C.C.P. 425.16 and March 30, 2015 Order
of Dismissal following grant of demurrer.”
Ninth Circuit appeals in SCIL v. Biggers and SCIL v. The State Bar
On August 15, 2015, the Ninth Circuit Court of Appeals affirmed the federal
district court’s dismissal of the federal claims in SCIL v. Biggers. (SCIL v. Biggers (9th
Cir. Aug. 24, 2015 No. 13-56718) 2015 U.S. App. LEXIS 14895, pp. 3-4.) On the same
date, the Ninth Circuit affirmed the district court’s dismissal of SCIL’s federal claims in
the state-court lawsuit. (SCIL v. State Bar (9th Cir. Aug. 24, 2015 No. 14-55690) 2015
U.S. App. LEXIS 14896, pp. 3-4).)
The Ninth Circuit Court held in SCIL v. Biggers that SCIL’s constitutional due
process challenge to the minimum bar passage requirement of ALS Guideline 12.1 and
12.2 fails for two reasons: first, SCIL’s current accreditation is unchallenged by the
requirement, and SCIL has no property entitlement to renewed accreditation after its
current accreditation expires in 2016 (a decision that is within CBE’s discretion); and
second, the CBE’s adoption of the 40 percent bar-passage requirement would in any
event satisfy a rational-basis review. (SCIL v. Biggers, supra, 2015 U.S. App. LEXIS
14895 at p. 3.) SCIL’s First Amendment challenge to ALS Guideline 2.3(D) fails to state
a claim, the Court of Appeals held, because the required disclosure of past bar exam
results regulates only commercial speech, and satisfies the standards for commercial-
speech regulations. (Id. at p. 4.) And the Court of Appeals held that SCIL’s due process
challenge to the failure to renew its course-sequencing waiver (ALS Guideline 6.7) does
10
not state a claim, because SCIL has no property entitlement to a continuing waiver. (Id.
at pp. 4-5.)
In the SCIL v. State Bar decision the Ninth Circuit Court of Appeals found it
unnecessary to determine whether the defendant CBE members would have absolute
immunity, because SCIL’s pleading failed to allege a cognizable injury, therefore SCIL’s
constitutional rights were unaffected. (SCIL v. State Bar, supra, 2015 U.S. App. LEXIS
14896 at pp. 3-4.)
Discussion
I. Requests for Judicial Notice.6
SCIL has requested this court’s judicial notice of 14 items it claims are relevant to
its opening brief’s “factual allegations and arguments”; respondents have filed a “partial
opposition,” objecting to notice of all but four of these documents. But SCIL has
provided this court with no explanation of the requested documents’ relevance to any
issue in this appeal, and we see potential relevance with respect to only one of the
requested items. We therefore take judicial notice of the document identified as exhibit
A to the RJN: “Amended versions of ALS Guidelines 12.1 and 12.2” (no copy of which
is attached to appellant’s RJN, but a copy of which has been supplied by respondents
without objection). We deny judicial notice of the other requested documents (exhs. B-N
to the request), for lack of any apparent relevance to this appeal.
SCIL has also filed an RJN of another 10 documents in connection with its reply
brief and oral argument in this court, with single-sentence explanations suggesting the
relevance of each document. In the absence of objection, we grant judicial notice of
exhibit A to the request, comprised of two documents: a January 15, 2015 CBE letter to
SCIL, with an attached notice of noncompliance (requesting a response within 15 days)
with respect to SCIL’s failure to meet the minimum bar-examination pass rate required
6
Because SCIL has not appealed from any RJN’s granted or denied in the trial
court, we do not address those rulings.
11
by ALS Guideline 12.1; and SCIL’s January 26, 2015 response to the CBE.7 (The
superior court’s order sustaining the demurrer to the first amended complaint indicated
that it was aware of the notice of noncompliance.) We deny the RJN of the remaining
requested documents (exhs. B-J to the request), for lack of any apparent relevance to this
appeal.
II. The Trial Court Correctly Granted The Anti-SLAPP Special Motion To Strike.
The trial court granted the defendants’ special motion to strike the six causes of
action based on allegations of retaliation at the June 28 and 29, 2013 CBE meeting to
SCIL’s filing of the federal Biggers v. SCIL lawsuit, under the anti-SLAPP statute,
section 425.16 of the Code of Civil Procedure.8
Section 425.16 provides a special motion to strike, as protection for acts done in
furtherance of a person’s rights of free speech or petition under the United States or
California Constitutions. The trial court’s ruling on the motion is governed by a two-step
process: “First, the court decides whether the defendant has made a threshold showing
that the challenged cause of action is one arising from protected activity. The moving
defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains
were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the
United States or California Constitution in connection with a public issue,’ as defined in
the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it
then determines whether the plaintiff has demonstrated a probability of prevailing on the
claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
SCIL contends that the trial court erred in granting the anti-SLAPP motion
because the defendants failed to meet their threshold burden of showing that the
7
The CBE’s notice of noncompliance bears the date “January 15, 2014,” but
apparently was actually issued on January 15, 2015, the date of the CBE’s cover letter,
and 11 days before SCIL’s January 26, 2015 response.
8
All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
12
retaliation claims arise from the defendant’s exercise of their free speech rights; and that
even if the defendants met that burden, SCIL demonstrated a probability of success on
the merits. Our review of these issues is de novo. (Monterey Plaza Hotel v. Hotel
Employees & Restaurant Employees (1999) 69 Cal.App.4th 1057, 1064.)
We affirm the order granting the special motion to strike.
A. The Trial Court Correctly Determined That SCIL’s Allegations Of
Retaliation Arise From Exercise Of The Defendant’s Free Speech Rights.
So far as relevant here, section 425.16’s protection for “act[s] [done] in
furtherance of [a] person’s right of petition or free speech under [the] United States or
California Constitution in connection with a public issue,” includes “(1) any written or
oral statement or writing made before a legislative, executive, or judicial proceeding, or
any other official proceeding authorized by law”; and “(2) any written or oral statement
or writing made in connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official proceeding authorized by law
. . . .” (§ 425.16, subd. (e)(1) & (2); Briggs v. Eden Council for Hope & Opportunity
(1999) 19 Cal.4th 1106, 1112-1113.)
The first amended complaint’s general allegations (paragraphs 1-225) allege that
at the June 28 and 29, 2013 CBE meeting, “SCIL was summarily found in violation of”
ALS Rule 4.160(B) (requiring SCIL to “demonstrate integrity in all of its programs,
operations, and other affairs”), ALS Guidelines 2.3(A) (dealing with “Honesty in
Communications”), and 2.7(A) (requiring adequate notice to students of changes in
academic standards); that the defendants intentionally concealed their consideration of
this subject; and that the June 28 and 29, 2013 findings constitute “formal quasi-judicial
Committee findings.”9 According to the pleading, the defendants’ conduct chills SCIL’s
exercise of its constitutionally protected free speech rights, and caused damage to SCIL’s
reputation, and institutional injury to the integrity of its accreditation.
9
Our quotations from SCIL’s pleadings omit inconsistent italicization of terms
with Latin roots, such as quasi-judicial.
13
Ruling on the anti-SLAPP motion, the superior court held that the conduct
underlying each of the stricken retaliation claims constitutes activity protected under
subdivisions (e)(1) and (e)(2) of section 425.16. The CBE’s alleged conduct at its June
28 and 29, 2013 meeting, and its July 3, 2013 letter, communicating the meeting’s results
to SCIL—the “quasi-judicial acts” that allegedly caused SCIL harm—come within the
anti-SLAPP statute’s protections.
SCIL alleges that the defendants brought a “quasi-judicial hearing before the
CBE”; that the defendants conferred about the meeting’s agenda, participated in the
hearing, found SCIL to be in violation of rules or guidelines, and in the process,
“exercised quasi-judicial power”; and after making that finding, they issued a letter
informing SCIL of the hearing’s outcome. This constitutes written and oral
communications made at and in connection with an official proceeding, about an issue
under consideration by the official body. And the resulting harm that SCIL alleges—
harm to its reputation and integrity—arose, according to SCIL, from this protected
conduct. (§ 425.16, subd. (e)(1) & (2); Briggs v. Eden Council for Hope & Opportunity,
supra, 19 Cal.4th at pp. 1112-1113.)
Civil Code section 47, subdivision (b) provides the defendants with an absolute
privilege for publications made in official proceedings authorized by law. (Albertson v.
Raboff (1956) 46 Cal.2d 375, 379; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman
(1996) 47 Cal.App.4th 777, 784.) The privilege applies to communications to or from
governmental officials, as well as to communications preliminary to proposed judicial or
other official proceedings. (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47
Cal.App.4th at p. 784.) It applies to communications made in quasi-judicial proceedings,
by participants authorized by law, in order to achieve the objects of the proceeding, and
that have some connection or logical relation to the action or proceeding. (Silberg v.
Anderson (1990) 50 Cal.3d 205, 212.) These provisions apply to any planning for the
June 28 and 29, 2013 meeting, any discussions at the meeting, and any communications
resulting from the meeting. And just as such communications are protected under the
litigation privilege of Civil Code section 47, subdivision (b), so too they are “equally
14
entitled to the benefits of section 425.16.” (Dove Audio, Inc. v. Rosenfeld, Meyer &
Susman, supra, 47 Cal.App.4th at p. 784; Briggs v. Eden Council for Hope &
Opportunity, supra, 19 Cal.4th at p. 1115.)
SCIL contends on appeal, however, that the anti-SLAPP protections do not apply,
because “the gravamen of SCIL’s retaliatory claims ‘arise from’ Defendants’ decisions”
on June 28 and 29, 2013, not from any communication of those decisions: “The fact that
Defendants may have later engaged in protected conduct when it [sic] sent SCIL a
demand letter ‘does not convert a claim seeking recovery on a fully accrued cause of
action for [defendants’] earlier alleged misfeasance into a claim ‘arising from’ such later
protected conduct.’”
But SCIL’s allegations do not support this argument. According to SCIL’s
allegations, the June 28 and 29, 2013 conduct, boils down to the defendants’
consideration of reports from some students that SCIL had threatened to decertify them
from taking the bar examination. The only resulting action alleged was the July 3, 2013
letter, informing SCIL that it lacked authority to carry out its threat, and advising SCIL
that it might face a formal inquiry unless its misstatements were corrected—advice with
which SCIL complied. (See fn. 3, ante.)10
Such a formal inquiry is a prerequisite to any action the CBE is permitted to take
with respect to a school’s accreditation. The CBE can act only after the school is given a
notice of noncompliance, followed by the school’s failure to provide a satisfactory
response, the scheduling and completion of an inspection, and—if the inspection results
in a written finding of noncompliance—a formal hearing at the school’s request. Only
after each of these steps has been completed do the rules permit the CBE to take action
affecting the law school’s accreditation: The CBE may then “take any action affecting
10
SCIL alleges that its only notification of the CBE’s June 28 and 29, 2013
findings, was the July 3, 2013 letter. A copy of the July 3, 2013 letter, apparently was
attached as exhibit 21 to the first amended complaint, but is not included in appellant’s
appendix in this appeal. The deficiency is cured by the inclusion in respondents’
appendix of both CBE’s July 3, 2013 letter to SCIL, and SCIL’s earlier letter to certain of
its graduates that had been considered at the CBE’s June 28 and 29, 2013 meeting.
15
the law school’s . . . accreditation that it considers appropriate, including termination of .
. . accreditation.” (ALS Rules 4.171, 4.174, 4,175(B).) But even then, the Supreme
Court has the last word; after the CBE has terminated a law school’s accreditation, the
school may seek Supreme Court review of the termination. (ALS Rule 4.177.)
No notice of noncompliance resulted from the June 28 and 29, 2013 meeting, with
respect to SCIL’s threat to decertify students from taking the bar examination. In
response to CBE’s July 3, 2013 letter, warning that such a notice might be necessary in
the absence of corrective action, SCIL did not dispute that it had overstepped its authority
(a fact confirmed in its pleading), and it told its students that its earlier communication
was mistaken, as CBE’s July 3, 2013 letter had advised it to do. There was no notice of
noncompliance, no formal inquiry or inspection, and no action by CBE with respect to
SCIL’s accreditation.
Because SCIL’s pleading shows that the July 3, 2013 warning letter, resulted in no
actionable wrong or harm, it is left only with the claim that the actionable wrongs on
which the defendants’ liability rest constitute the CBE’s consideration of the students’
reports to it about SCIL’s threats. Yet consideration of matters concerning SCIL’s
conduct as an accredited law school—such as unauthorized threats to decertify graduates
from taking the bar examination—is squarely within the defendants’ official mandate,
and thus within section 425.16’s protections.
Moreover, even if the CBE had actually taken some action against SCIL, the only
harm that SCIL alleges (unidentified harm to its reputation, and “institutional injury” to
“the integrity of its accreditation license”) could have resulted (if at all) only from the
publication of the CBE’s June 28 and 29, 2013 findings in the July 3, 2013 letter to SCIL.
The mere existence of the June 28 and 29, 2013 meeting, finding that SCIL should be
warned that its conduct, unless corrected, might lead to future action with respect to its
accreditation) does not itself constitute action with respect to SCIL’s accreditation; nor
could SCIL’s reputation or the integrity of its accreditation license have been harmed by
uncommunicated findings alone.
16
Section 425.16 is not rendered inapplicable, as SCIL argues, by its allegations that
the defendants acted maliciously and with improper motives. (§ 425.16, subds. (b)(1),
(e); Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 269.) Section 425.16 applies
to claims arising from communications made in connection with protected activities,
regardless of any motive the plaintiff may ascribe to the defendant’s activities. “When
evaluating whether the defendant has carried its burden under the first prong of the anti-
SLAPP statute, ‘courts must be careful to distinguish allegations of conduct on which
liability is to be based from allegations of motives for such conduct.’” (Hunter v. CBS
Broad., Inc. (2013) 221 Cal.App.4th 1510, 1520.)
The trial court correctly ruled that the stricken causes of action, alleging the
defendants’ retaliation for SCIL’s earlier federal lawsuit, arise from the defendants’
exercise of constitutional rights of free speech under section 425.16, subdivisions (b)(1)
and (e)(1) & (2). The defendants thus met their initial burden of showing that the
stricken causes of action come within the anti-SLAPP statute.
B. The Trial Court Correctly Determined That SCIL Failed To Demonstrate
A Probability Of Prevailing On The Merits Of Its Stricken Claims.
Despite the defendants’ successful satisfaction of their first-prong burden, SCIL
could defeat the anti-SLAPP motion by demonstrating a probability of prevailing on the
merits of its claims. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at
p. 63.) But the trial court correctly found that SCIL could not make that showing:
“Plaintiff points to no evidence or authority to support its conclusory assertion that
defendants’ conduct was unconstitutional or that it deprived plaintiff of any cognizable
property interest.” The court also found that the defendants are entitled to absolute
governmental immunity.
We conclude that the doctrine of res judicata—claim preclusion—requires us to
affirm these rulings. The federal courts have ruled in SCIL v. State Bar, that the
defendants’ alleged retaliatory conduct at and in connection with the June 28 and 29,
2013 meeting was not unconstitutional and did not deprive SCIL of any cognizable
property interest. And in a August 24, 2015 memorandum opinion, the federal Court of
17
Appeals for the Ninth Circuit affirmed the district court’s dismissal of the retaliation
claims alleged in SCIL v. State Bar, holding that SCIL’s stricken claims are legally
untenable. We set forth the opinion’s single-paragraph dispositive discussion in its
entirety:
“We need not decide whether Appellees enjoy absolute immunity in this case,
because SCIL has failed to allege a cognizable injury. The [July 3, 2013] letter SCIL
received from CBE had no legal consequence; by sending it, CBE did not ‘make any
decision or take any state action affecting [SCIL’s] rights, benefits, relationship or status
with the state.’ [Citing Gini v. Las Vegas Metro. Police Dep’t (9th Cir. 1994) 40 F.3d
1041, 1045.] Rather, the letter simply notified SCIL that CBE was contemplating taking
action against the school, and would do so if SCIL failed to correct its conduct. This
mere warning of potential action against SCIL does not give rise to the school’s
constitutional claims. [Citing Corales v. Bennett (9th Cir. 2009) 567 F.3d 554, 565]
(‘Plaintiffs do not have a retaliation claim based on threats of discipline for First
Amendment activity if that threat is itself based upon lawful consequences and is not
actually administered.’); [Gaut v. Sunn (9th Cir. 1987) 810 F.2d 923, 925] (‘We find no
case that squarely holds a threat to do an act prohibited by the Constitution is equivalent
to doing the act itself . . . [and] we are not prepared to create an exception to this
pattern.’); [Kerley Indus., Inc. v. Pima County (9th Cir. 1986) 785 F.2d 1444, 1446] (‘[A
letter without] operative legal effect . . . cannot constitute the basis of a claim of
deprivation of property without due process.’) Because no action affecting SCIL’s
constitutional rights ever occurred, the school’s claims with respect to CBE’s letter were
properly dismissed.” (SCIL v. State Bar, supra, 2015 U.S. App. LEXIS 14896 at pp. 3-
4.)
We review de novo whether the federal court’s decision binds this court as a
matter of res judicata. (Stewart v. United States Bancorp (9th Cir. 2002) 297 F.3d 953,
956; see Butcher v. Truck Ins. Exchange (2000) 77 Cal.App.4th 1442, 1452 [preclusive
effect of a prior judgment of a federal court is determined by federal law].)
18
The doctrine of claim preclusion, or res judicata, bars relitigation of claims that
were brought, as well as claims involving the same transaction or occurrence that could
have been brought. (McClain v. Apodaca (9th Cir. 1986) 793 F.2d 1031, 1034; see
Butcher v. Truck Ins. Exchange, supra, 77 Cal.App.4th at p. 1452 [“an issue once
determined normally may not be reexamined in a later proceeding”]; see Rest.2d
Judgments, § 33.)11 Res judicata applies when there is an identity of claims and of the
parties, and there has been a final judgment on the merits. (Cell Therapeutics, Inc. v.
Lash Grp., Inc. (9th Cir. 2009) 586 F.3d 1204, 1212.)12
These qualifications are met in this case. The first amended complaint in SCIL v.
State Bar was dismissed by the federal district court, and the dismissal was affirmed by
the Ninth Circuit; the same pleading was remanded to the superior court, which entered
the anti-SLAPP ruling and final judgment that are before us in this appeal. By affirming
the district court’s ruling that SCIL’s retaliation claims failed to allege any legally
cognizable injury, and that the claims were properly dismissed, the Ninth Circuit Court of
Appeals rendered a final judgment that SCIL’s claims had no probability of success. The
Ninth Circuit held that the July 3, 2013 letter from the CBE to SCIL, setting forth the
results of the June 28 and 29, 2013 meeting, “had no legal consequence”; by sending it,
CBE made no decision and took no state action affecting SCIL’s rights; “[t]his mere
warning of potential action against SCIL does not give rise to the school’s constitutional
claims,” and “no action affecting SCIL’s constitutional rights ever occurred.”
11
“A valid and final judgment in an action brought to declare rights or other legal
relations of the parties is conclusive in a subsequent action between them as to the
matters declared, and, in accordance with the rules of issue preclusion, as to any issues
actually litigated by them and determined in the action.” (Rest.2d Judgments, § 33.)
12
The lack of complete mutuality of parties in this case with those in SCIL v.
Biggers does render res judicata and collateral estoppel principles inapplicable, because a
plea of res judicata or collateral estoppel to bar an action or claim may be asserted by one
who was not a party, or in privity with a party, to the earlier litigation. (See Bernhard v.
Bank of America (1942) 19 Cal.2d 807, 812; Zdanok v. Glidden Co., Durkee Famous
Foods Div. (1964) 327 F.2d 944, 955.)
19
We are bound by these rulings as a matter of res judicata and issue preclusion. We
therefore need not evaluate—and are barred from reviewing—the merits of the federal
court’s rulings with respect to these retaliation claims. (United States v. Stauffer Chem.
Co. (1984) 464 U.S. 165, 170-171; South Delta Water Agency v. United States, Dep’t of
Interior, Bureau of Reclamation (9th Cir. 1985) 767 F.2d 531, 538 [doctrine of res
judicata precludes court in subsequent action from relitigating claims decided in prior
action]; see Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 904-905, 909
[judgment adverse to plaintiff in first suit bars second suit].)
III. The Dismissals Of The Remaining State-Law Claims Must Be Affirmed.
After striking the six retaliation-based causes of action of the first amended
complaint, the trial court sustained the demurrers “with respect to all remaining causes of
action not otherwise stricken under Defendants’ anti-SLAPP motion . . . .” These
remaining causes of action claim:
(1) that the minimum bar examination pass-rate requirement and the biennial class
offering requirement violate substantive due process and equal protection under the
California Constitution (Cal. Const., art. I, § 7(a));
(2) that the minimum bar examination pass-rate requirement, the bar pass-rate
disclosure requirement, ALS Rule 4.160(M), and subdivision (a) of Business and
Professions Code section 6060.7, violate the separation of powers provisions of the
California Constitution (Cal. Const., art. III, § 3);
(3) that the minimum bar examination pass-rate requirement and bar pass-rate
disclosure requirement violate the Administrative Procedure Act (Gov. Code, § 11350,
subd. (B)(1)); and
(4) that the bar pass-rate disclosure requirement violates the free speech
guarantees of article I, section 2 of the California Constitution.
For the reasons set forth below, we affirm the trial court’s order sustaining
demurrers to these claims.
20
A. SCIL’s Constitutional Challenges Are Barred By Res Judicata and
Collateral Estoppel.
As we have discussed above with respect to the trial court’s anti-SLAPP rulings,
the doctrine res judicata precludes relitigation of claims that were or could have been
asserted in an earlier lawsuit concerning the same transaction or occurrence. (McClain v.
Apodaca, supra, 793 F.2d at p. 1034; Butcher v. Truck Ins. Exchange, supra, 77
Cal.App.4th at p. 1452.) Res judicata applies when there is an identity of claims and of
the parties, and there has been a final judgment on the merits. (Cell Therapeutics, Inc. v.
Lash Grp., Inc., supra, 586 F.3d at p. 1212.) It “‘treats a judgment, once rendered, as the
full measure of relief to be accorded between the same parties on the same “claim” or
“cause of action.”’” (South Delta Water Agency v. United States, Dep’t of Interior,
Bureau of Reclamation, supra, 767 F.2d at p. 538.) And it bars litigation not just of
claims actually asserted, but also those claims that could have been asserted, but were
not, involving the same occurrence or circumstance. (McClain v. Apodaca, supra, 793
F.2d at p. 1034.)
The doctrine of res judicata also embraces the concept of issue preclusion, or
collateral estoppel, which bars relitigation of issues, either factual or legal, that have been
conclusively adjudicated between the same parties in a prior action. (Wolfson v.
Brammer (9th Cir. 2010) 616 F.3d 1045, 1064.)
These doctrines apply here. SCIL’s challenges to the constitutionality of the ALS
Rules and Guidelines, and their application to SCIL, are barred by the federal judgments
in the SCIL v. Biggers and SCIL v. State Bar cases.13
13
We review de novo whether the federal court’s decision binds this court as a
matter of res judicata. (Stewart v. United States Bancorp, supra, 297 F.3d at p. 956.)
21
1. The doctrine of res judicata requires affirmance of the orders
dismissing SCIL’s claims that the minimum bar examination pass-
rate requirement and the biennial class offering requirement violate
state-constitution guarantees of substantive due process and equal
protection of the laws.
The decisions of the Ninth Circuit Court of Appeals in SCIL v. Biggers and SCIL
v. State Bar, affirming dismissal of SCIL’s challenges to the 40 percent minimum
cumulative bar exam pass-rate requirement and the biennial class offering requirement,
preclude SCIL’s litigation of their state-law claims that these guidelines violate
substantive due process and equal protection under the California Constitution. (Cal.
Const., art. I, § 7(a).)14
With respect to these challenges the Ninth Circuit Court of Appeals held in SCIL
v. Biggers that without a viable claim that the challenged guideline will deprive it of a
protected property or liberty interest, SCIL can mount no due process challenge. “To
prevail in a civil action against state actors for the deprivation of ‘rights, privileges, or
immunities secured by the Constitution and laws,’ 42 U.S.C. § 1983, . . . the conduct
complained of must have deprived the plaintiff of some right, privilege or immunity
protected by the Constitution or laws of the United States.” (Thornton v. City of St.
Helens (9th Cir. 2005) 425 F.3d 1158, 1164.)
The Ninth Circuit Court also determined that SCIL has no such property or liberty
entitlement. “Because the challenged Guidelines cannot disturb SCIL’s accreditation
until 2017 at the earliest, SCIL has no viable claim that [the minimum 40 percent
cumulative bar exam pass-rate requirement for future accreditation] will deprive it of its
protected interest in accreditation.” (SCIL v. Biggers, supra, 2015 U.S. App. LEXIS
14895 at p. 3.)
14
Article I, section 7 of the California Constitution, provides (in pertinent part)
that “A person may not be deprived of life, liberty, or property without due process of
law or denied equal protection of the laws . . . .”
22
Nor does the CBE’s history of allowing a waiver of the biennial class offering
requirement to continue without annual requests by SCIL for its renewal create “a
legitimate claim of entitlement” to an ongoing waiver of that guideline. “A property
interest in a benefit protected by the due process clause results from a legitimate claim of
entitlement created and defined by an independent source, such as state or federal law.”
(Jacobson v. Hannifin (9th Cir. 1980) 627 F.2d 177, 179.) But “[l]ongstanding
enjoyment of a government benefit, without more, does not create a property right.”
(Thornton v. City of St. Helens, supra, 425 F.3d at p. 1165, fn. 2.) An “applicant does not
have a property interest in the renewal of a license if the reviewing body has discretion to
deny renewal or to impose licensing criteria of its own creation.” (Id. at p. 1165.) As the
Court of Appeals held, “[t]he granting of SCIL’s course-sequencing waiver remains
subject to CBE’s discretion, and thus does not give rise to SCIL’s due process claim.”
(SCIL v. Biggers, supra, 2015 U.S. App. LEXIS 14895 at p. 5.) And as SCIL confirms in
its opening brief, Business and Professions Code section 6060.7 “empowers the CBE to
set rules for the accreditation of law schools”—supplying the CBE with that discretion.
We also note the acknowledgement in SCIL’s opening brief that although SCIL may seek
renewal of its class-sequencing waiver, the waiver is at the CBE’s discretion—thereby
impliedly conceding the absence of any constitutional claim.
These decisions of the federal Court of Appeals constitute final rulings of fact and
law on claims before the federal courts in SCIL v. Biggers, and that resulted in dismissal
of the federal claims in this action by the federal district court and Ninth Circuit Court of
Appeals. In the absence of any authority (or contention) that our state constitution
affords greater protections with respect to due process and equal protection than those of
the United States Constitution, we are bound by the federal courts’ determinations that
SCIL’s due process and equal protection challenges are fatally deficient.15
15
The “test for determining whether a statute . . . 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 Los Angeles v.
Southern California Tel. Co. (1948) 32 Cal.2d 378, 389; O’Kane v. Catuira (1963) 212
23
SCIL’s inability to show that it has been deprived of any property interest also
dooms its substantive due process claims. A party lacks any justiciable claim for
violation of substantive due process unless and until it is deprived of a property interest.
(Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110.) In that case the
defendant county had adopted a plan proposing streets crossing the plaintiff’s property.
(Id. at p. 117.) The plaintiff’s challenge to the plan was not justiciable, however, because
the “county has taken no action with respect to plaintiff’s land except to enact a general
plan describing proposed streets, as required by state law.” (Ibid.) Although some of the
proposed streets, if constructed, would cross plaintiff’s property does not enable the
plaintiff to challenge the plan before its actual implementation to his detriment. “Since
the only conduct of the county consisted of adopting a general plan as required by state
law, and since we have concluded that the adoption of the plan did not constitute a taking
of plaintiff’s property, the trial court properly sustained the demurrers of the county
defendants to this cause of action.” (Id. at p. 121.) Here, as in the Selby Realty case, the
court concluded that the CBE’s only conduct was to adopt a plan for regulating law
schools, as it was required by law to do; that the plan it adopted did not itself constitute a
taking of any property or right from SCIL—consequences that would depend on
uncertain future events and could occur only after the end of 2016 at the earliest. So
here, too, the demurrer was properly sustained.16
Cal.App.2d 131, 137.) We note also SCIL’s reliance for its substantive due process claim
on its periodic (and unfounded) assertion that the CBE wields executive power, rather
than acting as an arm of the Supreme Court in the judicial branch of our government—a
contention we reject in connection with SCIL’s separation-of-powers claim, below.
SCIL apparently claims that the CBE is or should be an executive-branch agency because
the guarantee of substantive due process “limits what the government may do in both its
legislative [citation], and its executive capacities,” rather than in any judicial forum.
(County of Sacramento v. Lewis (1998) 523 U.S. 833, 846.)
16
This result is not changed by the fact that on January 15, 2015, the CBE issued a
Notice of Noncompliance regarding SCIL’s failure to meet the minimum bar exam pass
rate, of which we have taken judicial notice. (See text at fn. 7, ante.) SCIL’s claims
based on the minimum bar exam pass-rate requirement’s enforcement remain unripe and
24
2. The doctrine of res judicata requires affirmance of the dismissal of
SCIL’s constitutional claims based on freedom of speech.
ALS Guideline 2.3(D)(i) and (ii) requires SCIL either to post the bar examination
pass rates of its graduates for the last 10 administrations of the bar exam, or to include a
link to the State Bar Web site with that information. In its tenth cause of action, SCIL
contends that the CBE’s admitted purpose for this requirement is to ensure that
prospective students “are not misled by the imprimatur of accreditation into believing that
graduation from a given law school will necessarily result in the inability to pas the bar
examination.” This, SCIL contends, “operates as an unconstitutional restriction on pure
speech, commercial speech, and SCIL’s web-based hybrid speech.”
In SCIL v. Biggers the federal district court and the Ninth Circuit Court of Appeals
have ruled that these allegations fail to state a claim for violation of the First Amendment
to the United States Constitution. The federal district court held that bar examination
pass-rate disclosure requirement of ALS Guideline 2.3(D) is merely one of many
prerequisites to accreditation; that it constitutes commercial speech that “mandates no
compelled recitation of any message about the validity of passage rates as a measure of
institutional quality”; that the information required to be disclosed is purely factual and
uncontroversial, and prospective students are free to draw their own conclusions about its
relevance; and that it does not restrict SCIL’s speech or mandate any specific message
with respect to any matters of opinion. And the court held that the requirement of ALS
Guideline 2.3(D) is reasonably related to the CBE’s interest in protecting prospective
students, and places at most a minimal burden on SCIL’s speech.
SCIL contends, however, that the doctrines of res judicata and collateral estoppel
cannot be applied to its free speech claims, because under Los Angeles Alliance for
Survival v. City of Los Angeles (2000) 22 Cal.4th 352, 366, 367, “federal decisions
interpreting the First Amendment are not controlling” of claims under the California
nonjusticiable while it remains uncertain whether SCIL will fail in the future to satisfy
the minimum bar examination pass rate. (Selby Realty Co. v. City of San Buenaventura,
supra, 10 Cal.3d at pp. 115, 121.)
25
Constitution’s free speech guarantees. But significantly, SCIL fails to show how that
principle applies here. It has not suggested any manner in which the California
Constitution’s free speech guarantees apply more broadly to the challenged regulation
than would the free speech guarantee of the federal Constitution; and it nowhere
identifies any way in which the rules that apply to its statements under the federal and
state constitutions would differ in any way. As the court noted in Los Angeles Alliance
for Survival v. City of Los Angeles, “Merely because our provision is worded more
expansively and has been interpreted as more protective than the First Amendment,
however, does not mean that it is broader than the First Amendment in all its
applications.” (Id. at p. 367.)17 And as SCIL affirmatively contends with respect to this
point, citing Gallo Cattle Co. v. Kawamura (2008) 159 Cal.App.4th 948, 959, “California
courts ‘follow the United States Supreme Court in matters concerning free speech
doctrine . . . unless persuasive reasons are presented for taking a different course.’”
In the absence of any showing that the issues or law applied in the SCIL v. Biggers
decisions would apply differently to SCIL’s free speech challenges under the California
Constitution, we are bound by the doctrine of res judicata to affirm the trial court’s order
sustaining the demurrer to SCIL’s claim that ALS Guideline 2.3(D)(i) and (ii) violate
California’s free speech guarantee.
17
In Los Angeles Alliance for Survival v. City of Los Angeles, our Supreme Court
reviewed the constitutional validity of an ordinance regulating the solicitation, asking, or
begging for money, goods, or services. It held that “regulations such as the Los Angeles
ordinance here at issue, that single out the public solicitation of funds for distinct
treatment, should not be viewed as content based or constitutionally suspect for purposes
of analysis under article I, section 2(a), of the California Constitution.” (Id. at p. 378.)
26
3. The minimum bar examination pass-rate requirement of ALS
Guideline 12.1, 12.2, and the disclosure of SCIL’s bar pass-rate
requirement of ALS Guideline 2.3(D), do not violate the separation of
powers requirements of the California Constitution or the
Administrative Procedure Act.
a. Separation of Powers
SCIL sought a declaration in its eighth cause of action that ALS Guidelines 12.1,
12.2, and 2.3(D), and Government Code section 6060.7, subdivision (a), are invalid
because the regulation of law schools is an executive, not legislative or judicial
function—thereby violating the separation of powers required by article III, section 3 of
the California Constitution.18 The trial court’s order sustaining the demurrer to this claim
must be affirmed.
As our Supreme Court has held, “the power to regulate the practice of law,”
including the admission of attorneys, is a function of the judicial branch of our state
government. (In re Attorney Discipline System (1998) 19 Cal.4th 582, 592.) The Court
explained: “The [separation of powers] doctrine has not been interpreted as requiring the
rigid classification of all the incidental activities of government, with the result that once
a technique or method of procedure is associated with a particular branch of the
government, it can never be used thereafter by another. (Italics omitted.)” (Id. at p. 596.)
The state bar is “‘a public corporation created . . . as an administrative arm of this court
for the purpose of assisting in matters of admission and discipline of attorneys.’
[Citation.] In those two areas, the bar’s role has consistently been articulated as that of an
administrative assistant to or adjunct of this court . . . .” (Id. at pp. 599-600.)
Although the functions of the judicial branch with respect to the admission of
attorneys and attorney discipline may include executive and legislative elements, in
18
Article III, section 3 of the California Constitution provides: “The powers of
state government are legislative, executive, and judicial. Persons charged with the
exercise of one power may not exercise either of the others except as permitted by this
Constitution.”
27
“‘California, the power to regulate the practice of law, including the power to admit and
to discipline attorneys, has long been recognized to be among the inherent powers of
article VI courts. . . . “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.]’” (In
re Attorney Discipline System, supra, 19 Cal.4th at p. 592.) “‘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.]’”
(Id. at p. 593, quoting 1 Witkin, Cal. Procedure (4th ed. 1996) Attorneys, § 356, p. 438,
italics omitted.)
Arguing that the Supreme Court’s authority over the admission of attorneys is
unrelated to regulation of law schools—and that the Court therefore lacks authority to
regulate law-school accreditation—SCIL contends (supported by no authority and little
explanation) that “it [is not] logically tenable to assert that legal education is related to
becoming a lawyer”; that it “makes little sense” to permit the judicial branch to regulate
law school accreditation; that the licensing of many other professions comes within the
authority of non-governmental (but not executive-branch) entities; and that the Supreme
Court’s powers over legal education are not adequately limited. But on demurrer we look
only to whether the current structure is legally or constitutionally infirm, not whether it
makes sense or might be improved.
Admission into the bar ordinarily involves a series of qualifying events, including
satisfying the requirements for admission into a state-licensed law school; satisfying the
requirements for graduation from that school; certification to take the bar examination
and obtaining a passing score; and acceptance into the bar by the Supreme Court. Our
law provides that it is the Supreme Court, rather than the legislative or executive
branches of government, “that dictates the standards for education, admission and
discipline” of attorneys. (In re Attorney Discipline System, supra, 19 Cal.4th at p. 593.)
These are judicial functions, “‘[h]ence, under the constitutional doctrine of separation of
28
powers, the court has inherent and primary regulatory power. [Citations.]’” (1 Witkin,
Cal. Procedure, supra, Attorneys, § 356, p. 438.)
The court’s authority over the standards for admission to the bar after law school
graduation and successful passage of the bar examination encompasses also the standards
for law school graduates’ certification to take the bar examination, and the educational
standards required of law schools whose certifications enable their graduates to do so.
Under our law, the regulation of the law schools that are accredited to certify graduates to
sit for the bar examination—and regulation of the standards required for those schools to
retain accreditation—is an element of the standards for education and admission of
attorneys, within the authority of the Supreme Court; and the Supreme Court is part of the
government’s judicial branch. (Cal. Const., art VI, § 9; In re Attorney Discipline System,
supra, 19 Cal.4th at p. 592.) The CBE, “by setting standards for accreditation, can
impose minimum standards on the quality of education at accredited schools.” (Bib’le v.
Committee of Bar Examiners of The State Bar (1980) 26 Cal.3d 548, 555.) Because the
power to regulate the education of attorneys is among the functions of the judicial branch
of our state government, the order dismissing the separation-of-powers claim in SCIL’s
eighth cause of action must be affirmed.
b. The Administrative Procedure Act
SCIL also contends in its eighth cause of action that ALS Guidelines 12.1 and
12.2’s bar examination pass-rate requirement, and ALS Guideline 2.3(D)’s requirement
of disclosure of SCIL’s bar pass-rate, violate the Administrative Procedure Act,
Government Code section 11340 et seq. It is unnecessary to address the specifics of this
claim, because the Administrative Procedure Act applies only to agencies of the
executive branch of government—not the judicial branch. Subdivision (a) of
Government Code section 11340.9 expressly exempts from the Administrative Procedure
Act’s requirements the agencies of the judicial branch of government, of which the State
Bar and CBE are a part, as discussed above. The dismissal of this claim therefore must
be affirmed.
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Disposition
The judgment is affirmed. Respondents are entitled to their costs on appeal.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
LUI, J.
30