Opinion
G057078
10-28-2019
JEROLD D. FRIEDMAN, Petitioner and Appellant, v. MICHAEL E. GATES et al., Respondents, CITY OF HUNTINGTON BEACH, Real Party in Interest.
The Animal Law Office and Christine Kelly for Petitioner and Appellant. Brian L. Williams, City Attorney, and Daniel S. Cha, Deputy City Attorney for Respondents and Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2018-01016038) OPINION Appeal from a judgment of the Superior Court of Orange County, Robert J. Moss, Judge. Affirmed. Request for judicial notice. Denied. The Animal Law Office and Christine Kelly for Petitioner and Appellant. Brian L. Williams, City Attorney, and Daniel S. Cha, Deputy City Attorney for Respondents and Real Party in Interest.
* * *
Petitioner Jerold D. Friedman is an attorney who graduated from a law school that is not accredited by the American Bar Association (ABA). He challenges the constitutionality of a provision in Huntington Beach's City Charter requiring that candidates for the elected position of City Attorney must have graduated from an ABA-accredited law school. The trial court found the provision constitutional and denied his petition for writ of mandate. For the reasons explained below, we affirm.
I.
FACTS
A. Background Information on Law School Accreditation
The ABA is a voluntary bar association, and one of its many functions is to review, evaluate, and accredit law schools. "The ABA's process for evaluating law schools is extensive and involves many detailed standards for law school organization and administration, the educational programs offered, the faculty, admissions, the library, and the law schools' actual physical facilities." (In re Doering (2008) 275 Neb. 1004, 1010; see Staver v. American Bar Assn. (M.D. Fla. 2001) 169 F.Supp.2d 1372, 1374 [describing ABA's law school accreditation process].) "'Using these standards, law schools are inspected and, importantly, reinspected on an ongoing basis.'" (Florida Board of Bar Examiners ex rel. Barry University School of Law (Fla. 2002) 821 So.2d 1050, 1055.)
ABA accreditation is meaningful: ABA-accredited law schools "qualif[y] for federal student loans," and "many states require graduation from an ABA-accredited law school to become a member of the[ir] bar." (Whittier College v. American Bar Assn. (C.D. Cal., May 7, 2007, No. CV 07-1817 PA) 2007 WL 1624100, at *1.) All together, the ABA has accredited over 200 law schools, 21 of which are in California.
The California State Bar's Committee of Bar Examiners (CBE) also accredits law schools. In addition to the 21 ABA-accredited law schools in California, which the CBE deems accredited by virtue of their ABA-accredited status, the CBE has accredited 21 other law schools (CBE-accredited schools). Graduates of CBE-accredited schools may take the California bar exam, but not the bar exams in many other states.
Historically, graduates from ABA-accredited schools have enjoyed vastly higher passage rates on the California bar exam than graduates of CBE-accredited schools. For example, 54 percent of graduates of ABA-accredited schools in California passed the July 2016 bar exam, compared with only 13 percent of graduates of CBE-accredited schools. B. The Huntington Beach City Charter
Real Party in Interest the City of Huntington Beach is a charter city. Its Charter, originally adopted in 1937, creates the elected position of City Attorney, and it lists the position's various duties, which include: advising the City Council and City officers in all legal matters pertaining to their offices; prosecuting criminal violations of the Charter, city ordinances, and certain misdemeanors; representing the City in all litigation to which the City is a party; and preparing proposed ordinances and resolutions. The City Attorney also oversees the City's legal department.
The California Constitution grants charter cities the authority to regulate "municipal affair[s]" (Cal. Const., art. XI, § 5), including "the election of municipal officers." (Cawdrey v. City of Redondo Beach (1993) 15 Cal.App.4th 1212, 1223.)
Until about a decade ago, the Charter required prospective City Attorney candidates to be licensed to practice law in California and to have practiced law for at least three years. In 2009, however, the City Council appointed a commission to overhaul the Charter. The commission recommended a host of revisions, including updates to the eligibility requirements to run for the elected offices of City Attorney, City Clerk, and City Treasurer. Among other suggestions, the commission recommended revising the Charter to require City Attorney candidates and appointees to "have graduated from a law school accredited by the American Bar Association." It also recommended adding a provision that "[i]f no candidate meets the qualifications for office of the . . . City Attorney, the City Council shall fill that position by appointment until the next municipal general election in which a qualified candidate is elected."
In a report discussing its recommendations, the committee explained: "The Commission considered making [the] three offices [of City Attorney, Clerk, and Treasurer] appointed, and is not recommending that change. However, with support from the three department heads currently serving in these positions, Section[s] 309-311 [of the Charter] have been modified to strengthen the qualifications for these offices."
The commission later sent a memorandum to the City Council explaining its recommendations further and addressing questions raised by the City Council. Among other matters, the memorandum explained: "Why were the qualifications for City Attorney, City Clerk, & City Treasurer changed? . . . [¶] Staff conducted a thorough survey of other cities with appointed or elected posts. HB's charter, which has not been updated in many years, contained relatively weak requirements for these positions, in comparison to other cities with elected positions. Furthermore, these positions have evolved to become more professional, and the holder of the post is a department head. Those who fill assistant positions just below the department head must meet significant professional requirements. The commission sought to improve the expectations for such an elected department head while avoiding the danger of reducing the available field. Management experience emerged as quite important because a department head is not a sole operator, and must supervise people some of whom may have greater professional qualifications than themselves." The committee's memorandum further explained: "If no qualified candidate was elected, . . . [a]n appointee would have to meet the same qualifications as those required of a person elected to the office."
Huntington Beach voters approved the proposed Charter revisions in the November 2010 general municipal election. As a result, the Charter now requires that "[t]o become and remain eligible for City Attorney the person elected or appointed shall, have graduated from a law school accredited by the American Bar Association," among other requirements. C. Friedman's Attempted Candidacy
Friedman graduated from the University of West Los Angeles, which is a CBE-accredited law school, but not ABA-accredited. He was admitted to the California bar in June 2013. The record is silent on when Friedman graduated from the University of West Los Angeles or how many times he sat for the bar exam.
In 2018, Friedman decided to run for Huntington Beach City Attorney and submitted a "Qualification Affidavit for the Office of City Attorney" form to the City Clerk. In his affidavit, Friedman certified under penalty of perjury that he is a resident of and registered voter in Huntington Beach, is an attorney licensed in California, and has practiced law in California for at least five years. In the section of the affidavit where he was asked to certify he "graduated from a law school accredited by the American Bar Association," Friedman wrote: "[U]nconstitutional[.] [S]ee letter attached." Enclosed was a three-page letter from Friedman's attorney arguing the ABA-accredited-law-school eligibility requirement is unconstitutional.
That same day, Respondent Robin Estanislau, the City Clerk, sent Friedman a letter informing him she is bound to uphold the Charter and he cannot run for the City Attorney's office because he did not graduate from an ABA-accredited law school. Respondent Michael E. Gates ran and was elected City Attorney. D. Procedural History
Friedman filed a petition for writ of mandate and complaint for declaratory and injunctive relief directly in the California Supreme Court, alleging the Charter's ABA-accredited-law-school eligibility requirement violates equal protection principles and constitutes an unconstitutional bill of attainder. Friedman asserted he has a fundamental right to run for and hold public office, and the eligibility requirement violates the state and federal equal protection clauses by invidiously discriminating against attorneys who did not graduate from ABA-accredited schools. The Supreme Court transferred the matter to this court for consideration, and this court in turn transferred the matter to the superior court to hold a hearing on whether Friedman is entitled to relief.
The trial court denied the petition. Citing Clements v. Fashing (1982) 457 U.S. 957 (Clements), the court first noted candidacy is not a fundamental right and found the City Attorney eligibility classifications "need only be drawn in such a manner as to bear some rational relationship to a legitimate state end." The court then reasoned "that the California State Bar, which regulates the admission of individuals to practice law in this state, recognizes the efficacy of the American Bar Association (ABA)'s requirements for law school accreditation, [and] exempted accredited law schools from certain requirements imposed upon state but not ABA accredited law schools. There is an objective correlation between a student's ability to pass the state bar examination and whether the student attended an ABA accredited law school. As passing the bar examination is the primary requirement imposed by the State to practice law, contrary to [Friedman's] arguments, there is a relationship between graduating from an ABA accredited law school and ability to perform legal services by passing the state set examination to allow an applicant to practice law."
The trial court went on: "The City of Huntington Beach has a reasonable interest in the qualifications of elected officials. [Citation.] The City of Huntington Beach Charter imposes a wide range of responsibilities upon an elected city attorney. The court finds that there is a reasonable relationship between the City's requirements for an elected city attorney to have graduated from an ABA accredited law school and its interest in the qualifications of elected officials. The court also finds that the requirement would meet an intermediate level of scrutiny."
In rejecting Friedman's bill of attainder theory, the trial court reasoned "the City of Huntington Beach has a valid interest in the qualification of candidates for public office . . . . [¶] . . . [As with other] cities with elected city attorneys, the City lacks the ability to vet candidates for the position, thus a requirement above and beyond State Bar admission is both reasonable, and desirable. The fact that other cities have chosen not to impose such requirements, or have imposed different requirements, does not render the subject requirement void or unreasonable." Friedman timely appealed the denial of his petition.
Friedman's briefs do not address the trial court's ruling on his bill of attainder claim, so we do not consider the matter further.
II.
DISCUSSION
"Although the election has come and gone, resolution of this constitutional issue is appropriate because it is a matter of public interest and likely to recur in the future." (Boyer v. County of Ventura (2019) 33 Cal.App.5th 49, 53 (Boyer).) "On appeal, the standard of review on constitutional questions is independent judgment with deference to [the] trial court's underlying factual findings, which are reviewed for substantial evidence." (Ibid.) A. The Applicable Level of Scrutiny
Friedman contends we should apply strict scrutiny to the eligibility requirement and determine whether it is narrowly tailored to serve a compelling government interest. According to Friedman, strict scrutiny applies because the Charter provision impinges on his fundamental right to run for public office and on Huntington Beach voters' fundamental right to vote for the candidate of their choosing. Friedman's argument is without merit.
In evaluating a constitutional challenge to an election law, both the United States Supreme Court and California courts have applied the balancing test set forth in Anderson v. Celebrezze (1983) 460 U.S. 780, 789 (Anderson), rather than applying strict scrutiny. (Ibid.; Kunde v. Seiler (2011) 197 Cal.App.4th 518, 538-539; see Legislature v. Eu (1991) 54 Cal.3d 492, 514-517 (Eu) [applying Anderson and upholding term limits for state legislators]; see also Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164, 175 [discussing adoption of Anderson by California courts].)
In performing the Anderson balancing test, the reviewing court "must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, [it] must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights." (Anderson, supra, 460 U.S. at p. 789.)
"Under [the Anderson] standard, the rigorousness of [a court's] inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. . . . [W]hen those rights are subjected to 'severe' restrictions, the regulation must be 'narrowly drawn to advance a state interest of compelling importance.' [Citation.] But when a state election law provision imposes only 'reasonable, nondiscriminatory restrictions' upon the First and Fourteenth Amendment rights of voters, 'the State's important regulatory interests are generally sufficient to justify' the restrictions." (Burdick v. Takushi (1992) 504 U.S. 428, 434 (Burdick).)
The California Supreme Court articulated a three-part analysis for applying the Anderson balancing test, explaining a reviewing court should "consider three separate elements in ascertaining the constitutionality of state laws restricting access to the ballot: (1) the nature of the injury to the rights affected, (2) the interests asserted by the state as justifications for that injury, and (3) the necessity for imposing the particular burden affecting the plaintiff's rights, rather than some less drastic alternatives." (Eu, supra, 54 Cal.3d at p. 517 [citing Anderson], italics added.) Although this three-part test generally tracks the language of Anderson, the Eu court's suggestion that the reviewing court also consider the existence of "less drastic alternatives" appears to be incorrect. As the United States Supreme Court later noted in Burdick, considering the existence of less drastic alternatives would invoke strict scrutiny, not the balancing test described in Anderson. (Burdick, supra, 504 U.S. at p. 440 fn. 10 [noting that "[a]lthough the dissent purports" to apply the Anderson balancing test, the dissent "actually employs strict scrutiny" by arguing "the State could adopt a less drastic means" to achieve its interests].) We therefore reject Friedman's argument that we must consider the existence of less drastic alternatives here. B. Application
1. Character and Magnitude of Injury to Protected Rights
The Anderson test requires us to first consider the character and extent of the injury to the rights affected. The challenged provision of the Charter affects two important rights: a prospective candidate's right to run for public office, and the voters' right to vote for the specific candidate of their choosing. These rights, while important, are neither fundamental nor absolute.
"Far from recognizing candidacy as a 'fundamental right,' [the United States Supreme Court] ha[s] held that the existence of barriers to a candidate's access to the ballot 'does not of itself compel close scrutiny.'" (Clements, supra, 457 U.S. at p. 963.) California courts have echoed this conclusion. "[C]andidacy for public office is not a fundamental constitutional right to which a rigorous standard of review applies." (Boyer, supra, 33 Cal.App.5th at p. 57 [citing Clements]; see Kern County Employees' Retirement Assn. v. Bellino (2005) 126 Cal.App.4th 781, 794-795 [citing Clements]; see also 26 Am.Jur.2d Elections § 250 ["each state has the power to prescribe the qualifications of its officers and the manner in which they are to be chosen, including the power to adopt candidate eligibility requirements, provided that any restrictions imposed are reasonable and nondiscriminatory"].)
In support of his contention there is a fundamental right to run for public office warranting application of strict scrutiny, Friedman relies on older cases, such as Thompson v. Mellon (1973) 9 Cal.3d 96, 102 and Johnson v. Hamilton (1975) 15 Cal.3d 461, 466, which recognized candidacy as a fundamental right and applied strict scrutiny to restrictions on candidacy eligibility requirements. Those cases were decided before Clements, Anderson, Eu, and Burdick, and no longer control.
Nor is there a fundamental right of voter choice. Although "'voting is of the most fundamental significance under our constitutional structure,'" it "does not follow . . . that the right to vote in any manner" is "absolute." (Burdick, supra, 504 U.S. at pp. 432-433 [rejecting argument that "any burden upon the right to vote must be subject to strict scrutiny"].) Courts therefore "give wide latitude to state election laws, even those that may restrict the electorate's choice of representatives, so long as those laws are applied in an even-handed manner without discriminating against particular citizens or classes of citizens." (Eu, supra, 54 Cal.3d at p. 516, italics added.)
Here, the eligibility requirement impacts the ability of attorneys who did not graduate from ABA-accredited law schools to run for City Attorney, and it also impacts Huntington Beach voters' ability to vote for those candidates. But those same Huntington Beach voters passed the Charter's eligibility requirement. Further, the requirement is politically neutral. "[N]either voter choice nor candidate eligibility is restricted based on the content of protected expression, political affiliation, or inherently arbitrary factors such as race, religion or sex. . . . Voters retain the ability to vote for any qualified candidate holding the beliefs or possessing the attributes they may desire in a public officeholder." (Eu, supra, 54 Cal.3d at p. 519.)
Friedman asserts the eligibility requirement impacts a "substantial class of potential candidates." According to a 2017 report by the California State Bar, however, less than 10 percent of attorneys practicing in Los Angeles, San Diego, and Orange Counties graduated from non-ABA-accredited law schools. The eligibility requirement thus "does not significantly impair access to the ballot" or "dictate electoral outcome in any sense." (See Rawls v. Zamora (2003) 107 Cal.App.4th 1110, 1117 (Rawls).)
Accordingly, although the eligibility requirement "does affect the rights of voters and candidates to a degree, there are several mitigating aspects, including the voters' continued right to vote for any qualified candidates, as well as the candidates' ability to run for other public offices." (See Eu, supra, 54 Cal.3d at p. 519.) We therefore conclude it is not a "'severe'" restriction, but rather imposes "only [a] 'reasonable, nondiscriminatory restriction[]'" on the rights of voters and prospective candidates. (See Burdick, supra, 504 U.S. at p. 434.)
2. Huntington Beach's Interests
Balanced against that impact on prospective candidates and voters are the City's interests in requiring City Attorney candidates to have graduated from an ABA-accredited law school. As the Charter revisions' legislative history makes clear, the committee recommended adding the ABA-accredited-law-school eligibility requirement to the Charter because the City Attorney is a department head who bears significant professional responsibilities, and because the City desired to "strengthen" the qualifications of City Attorney candidates without significantly reducing the field of prospective candidates.
The City has an interest in ensuring candidates are well qualified for the City Attorney position, particularly considering the City Attorney's wide-ranging high level duties, coupled with the City's inability to vet candidates for elected positions. "There can be no doubt that the [City] has a strong interest in assuring that a person with aspirations to hold office is qualified to administer the complexities of that office. [Citation.] And the authority of the [City] to determine the qualifications of their most important governmental officials is an authority that lies at the heart of representative government." (See Rawls, supra, 107 Cal.App.4th at p. 1117 [upholding statutory requirement that county sheriff candidates have law enforcement experience]; see also Eu, supra, 54 Cal.3d at p. 520 [rule aimed at "'encourag[ing] qualified candidates to seek public office'" may promote a "considerable state interest"].)
3. Necessity of the Eligibility Requirement
That brings us to whether it is "necessary" for Huntington Beach to limit the elected City Attorney position to ABA-accredited law school graduates to ensure City Attorney candidates are qualified and capable of discharging the position's specialized duties. (See Anderson, supra, 460 U.S. at p. 789.) We conclude the eligibility requirement is necessary to attract qualified candidates. Although graduation from an ABA-accredited law school is not a guaranty of an attorney's skill level, intelligence, or professional qualifications, the record shows it is a reliable indicator or predictor of those characteristics.
Friedman asserts all law schools provide an "equal education," but this is simply not true. In fact, most states do not permit graduates of non-ABA-accredited law schools to sit for their bar exams, at least not without several years of experience practicing law in another jurisdiction. Recognizing the effectiveness of the ABA's accreditation process, courts in other jurisdictions repeatedly have upheld rules restricting bar admission to graduates of ABA-accredited law schools. (Bring v. North Carolina State Bar (1997) 126 N.C. App. 655, 660 (Bring) [collecting cases].) "[C]hallenges to the constitutionality of an [ABA] approved law school requirement have generally met with failure . . . because requiring graduation from an approved law school before admission to practice law represents one rational way to evaluate the sufficiency of an individual's legal education." (In re Fox (Utah 2004) 89 P.3d 127, 131 (Fox).)
Indeed, courts in other jurisdictions have concluded requiring graduation from an ABA-accredited school is "a reasonable means of assuring that applicants have a competent legal education" (Bring, supra, 126 N.C.App. at p. 660), "is reasonably related to ensuring a competent bar" (In re Application of Hansen (Minn. 1978) 275 N.W.2d 790, 796), and "is a highly efficient way of preliminarily evaluating competence" (Fox, supra, 89 P.3d at p. 131). In the words of one court, "[t]here is clearly a direct rational connection between the requirement of graduation from an [ABA] accredited law school and an applicant's fitness to practice law. The ABA standards relating to the accreditation of law schools provide assurance that applicants to the bar 'have experienced a generally uniform level of appropriate legal education.'" (In re Tocci (1992) 413 Mass. 542, 548.)
A federal appellate court applied similar reasoning in the employment context. In upholding a requirement that applicants for certain attorney positions in the Internal Revenue Service (IRS) and the U.S. Army must have graduated from an ABA-accredited school, the Sixth Circuit reasoned: "While some non-accredited law schools offer legal education comparable (or perhaps even superior) to accredited schools, others surely do not. It is not irrational for the IRS and the Army to rely on the judgment of the ABA in determining which schools merit accreditation, and to use that as a proxy for a minimum acceptable level of skill required for an attorney position." (Whittle v. U.S. (6th Cir. 1993) 7 F.3d 1259, 1263.)
Although the California Supreme Court has not directly addressed the issue presented here, it implicitly has recognized that law school accreditation matters. In Bib'le v. Committee of Bar Examiners (1980) 26 Cal.3d 548, 554-555 (Bib'le), the Court upheld a requirement that students of unaccredited law schools take California's First Year Law Student Examination as a precondition of eligibility to take the California bar exam. In rejecting the petitioner's argument that the requirement impermissibly discriminated "against persons required to study law in unaccredited schools," the Court reasoned "there is a rational basis for the different treatment of students receiving instruction at [CBE] accredited [schools] and [those receiving instruction at] unaccredited schools" in determining eligibility to take the California bar exam because the CBE, "by setting standards for accreditation, can impose minimum standards on the quality of education at accredited schools." (Id.) Of course, Bib'le involved a distinction between CBE-accredited and unaccredited schools, not a distinction between ABA- and CBE-accredited schools, but it nevertheless suggests accreditation matters.
Against that backdrop, we conclude it is necessary for Huntington Beach to limit the elected City Attorney position to ABA-accredited law school graduates to ensure City Attorney candidates and appointees are well qualified for the job. Because the position is an elected position, the City lacks the ability to vet candidates, so its decision to impose an easily administered litmus test to evaluate prospective candidates' qualifications satisfies the City's legitimate interest in ensuring qualified candidates seek the position. Moreover, the ABA's rigorous law school accreditation process ensures that graduation from an ABA-accredited law school correlates to a notably higher bar passage rate, a statistic even the CBE uses "in the evaluation of the qualitative soundness of [a given] law school's program of legal education." These considerations all could lead the City to reasonably conclude graduates of ABA-accredited schools are generally better qualified to represent the City than graduates of non-ABA-accredited schools.
See California State Bar Law School Accreditation, Rule 4.160(N), available at http://www.calbar.ca.gov/Portals/0/documents/rules/Rules_Title4_Div2-Acc-Law-Sch.pdf.
Friedman contends the City "wrongfully equate[s] correlation with causation," and "graduation from an ABA-accredited law school [does not] cause[ ] a person to be 'more professional' or better qualified as a city attorney than any other California-licensed attorney." But whether attending an ABA-accredited law school causes a candidate to be better qualified or correlates to better qualifications is not the point. Rather, as the Charter revision's legislative history suggests, the City believes graduates of ABA-accredited schools tend to be better qualified than graduates of non-ABA-accredited schools. Whether those higher qualifications are the result of or simply correlate to attending an ABA-accredited school is immaterial.
Friedman suggests admission to the California State Bar should be enough to reflect a candidate is qualified for the position. In his original petition, Friedman even alleged "[a]ll attorneys licensed by the California State Bar are equally qualified to practice law." But the bar exam is a pass-or-fail test that only ensures an applicant has the requisite minimal competency to practice law. Although passing the bar exam is an important professional milestone, it by no means opens limitless employment opportunities for the newly admitted lawyer. As Friedman himself concedes, "graduating from Stanford or UCLA will more surely result in a high-profile position."
Of course, we do not mean to suggest graduation from an ABA-accredited law school is the "be-all-end-all" marker of an attorney's intelligence, qualifications, or likelihood of professional success. Quite the contrary. Abraham Lincoln never went to law school, and numerous United States Supreme Court Justices — most recently, Robert H. Jackson (1941-1954) and Stanley Forman Reed (1938-1957) — did not graduate from law school. In reaching our holding, we do not diminish the many successes and accomplishments of those who have graduated from CBE-accredited and unaccredited law schools who successfully passed the bar exam. We merely recognize the fact that not all lawyers practice at the same level, and Huntington Beach reasonably could conclude that in today's legal market, graduation from an ABA-accredited law school generally correlates to a candidate who has the specialized skills necessary to function as City Attorney.
As for whether the ABA-accredited-law-school requirement is a "necessary" means of advancing the City's interests, Friedman asserts anyone — even a goat — can be appointed City Attorney, even if he or she did not go to ABA-accredited law school, thus reflecting the eligibility requirement is unnecessary. Friedman misreads the Charter. It unambiguously requires that "[t]o become and remain eligible for City Attorney the person elected or appointed shall have graduated from a law school accredited by the American Bar Association." (Italics added.) In other words, if no qualified candidate runs for City Attorney, the City Council would fill the vacancy by appointing an attorney who meets the various eligibility requirements for office, including graduation from an ABA-accredited school.
Friedman also argues the Charter's eligibility requirement requires only graduation from an ABA-accredited school, not a juris doctorate (J.D.) from an ABA-accredited school, so hypothetically, someone who received his or her J.D. from an unaccredited law school, and who later received a master of law degree from an ABA-accredited law school, could qualify to run. Similarly, Friedman asserts someone who received his or her J.D. from an unaccredited law school, and who later received a second J.D. degree from an ABA-accredited law school, also could qualify to run. Friedman presents no evidence either scenario applies to him. "[W]e may not invalidate a statute simply because in some future hypothetical situation constitutional problems may arise." (See California Teachers Assn v. State of California (1999) 20 Cal.4th 327, 347.)
Friedman contends the provision is "overbroad" because he, as someone who passed the bar exam, is more qualified than ABA-accredited law school graduates who did not pass the bar exam. He is comparing apples and oranges: law school graduates who have not passed the bar exam can neither practice law nor hold the position of City Attorney, so their alleged qualifications or lack thereof are immaterial.
Friedman also argues the ABA's accreditation standards do not pertain to public offices generally nor city offices specifically, and include no standards relevant to constitutional, governmental, or municipal law. Considering the ABA evaluates each law school's coursework and curriculum in the accreditation process, however, and considering constitutional law is a standard bar exam subject, we cannot conclude the ABA's accreditation standards are irrelevant to the City Attorney's duties, and Friedman cites nothing on point.
Friedman proposes requiring "more years of experience" as a less drastic alternative to the ABA-accredited-law school eligibility requirement. As noted above, whether less drastic alternatives exist is not an appropriate inquiry under the Anderson balancing test. (See Burdick, supra, 504 U.S. at p. 440, fn. 10.) Even if it were, however, Friedman's proposal would fall short from a practical standpoint because "years of experience" do not reflect the quality, breadth, or nature of an attorney's work. For example, an attorney performing substantive and challenging legal work, especially work related to municipal law, presumably accumulates far more relevant experience than an attorney who solely performs document review or who limits her practice to a narrow field. Because measuring a candidate's qualifications based on the number of years he or she has been practicing law would not capture those distinctions, years of experience is not necessarily a reliable indicator of a prospective candidate's qualifications.
Friedman alternatively suggests a requirement based on law school class rank would correlate more closely to a candidate's quality of education and ability to pass the bar exam than the school he or she attended. Again, we are not persuaded. Common sense dictates the quality of one's education is more closely tied to one's school (the provider of that education) than one's class rank. Because of the difficulty in gaining acceptance into a top-ranked law school, it is reasonable to assume a graduate of an ABA-accredited school, even one who placed in the bottom quartile of her class, will be better qualified to serve as City Attorney than a graduate of an unaccredited California law school who placed higher in his class. Class rank is not necessarily effective in measuring a prospective candidate's qualifications.
For these reasons, we conclude requiring graduation from an ABA-accredited law school is a valid candidacy eligibility requirement that passes muster under the Anderson balancing test. The City's interests in ensuring City Attorney candidates are well qualified justifies the eligibility requirement. In light of this holding, we deny as moot the City's request for judicial notice of the job specifications for various nonelected county attorney positions that require graduation from ABA-accredited law schools. C. Equal Protection
Friedman also contends the Charter violates his right to equal protection under the state and federal constitutions by discriminating based on socio-economic status. In support, he asserts ABA-accredited law schools are far more expensive than other law schools, and he infers the Charter "discriminates against candidates on the basis of wealth or poverty when they were a law student." However, the record includes no evidence on the annual tuition charged to, average financial aid given to, or average postlaw school debt incurred by students of ABA-accredited schools or CBE-accredited schools, nor does it include evidence on the socio-economic status of the students of those schools or evidence on why poorer students may choose to attend a particular school. We therefore decline to reach this issue.
Attached to Friedman's opening brief is a declaration in which he purports to compile information from the State Bar on the tuition of ABA-accredited law schools in California and the tuition of unaccredited law schools (that is, law schools that are neither accredited by the ABA nor the CBE). We have concerns about the accuracy of Friedman's calculations and his failure to present this data to the trial court. But even if Friedman's tuition data and related calculations were accurate, and even if the data were properly before us, we fail to see how the average tuition charged by unaccredited law schools is relevant to our analysis here, where Friedman graduated from a CBEaccredited law school.
III.
DISPOSITION
The judgment is affirmed. Respondents and Real Party in Interest shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. THOMPSON, J.