In Re Rose V

¶1The majority holds that this court need not hear argument or issue a written opinion when it suspends or revokes an attorney’s license to practice law. I disagree.

¶2*461Under the California Constitution, this court may not render a judgment unless it has given the parties a chance to argue their case to the members of this court. (Cal. Const., art. VI, § 2.) The state Constitution also requires that this court issue a written opinion giving reasons for any decision that determines a “cause[].” (Id., art. VI, § 14.) Unlike the majority, I conclude that because an order of this court suspending or disbarring an attorney is a judgment, and because such an order determines a cause, our Constitution requires that this court hear argument and issue a written opinion before entering an attorney suspension or disbarment order.

¶3The majority’s decision here produces a startling anomaly: Attorneys are the only persons whose state occupational licenses can be revoked or suspended without a judicial hearing. When the right to continue practicing a trade or profession is at stake, only attorneys are denied their day in court. I would avoid this anomaly by recognizing that the state Constitution’s guarantees of oral argument and a written opinion apply in attorney suspension and disbarment proceedings.

¶4I. Oral Argument

¶5The California Constitution provides that in the California Supreme Court “[c]oncurrence of 4 judges present at the argument is necessary for a judgment” (Cal. Const., art. VI, § 2, italics added), and that in a Court of Appeal “[c]oncurrence of 2 judges present at the argument is necessary for a judgment” (id., art. VI, § 3, italics added). As I explained in a case this court decided last year, the latter provision confers a right to oral argument, which a litigant may waive, before a Court of Appeal renders a judgment. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1270-1271 [82 Cal.Rptr.2d 85, 970 P.2d 872] (dis. opn. of Kennard, J.).)1 Because these two provisions, one applying to this court and the other to the Courts of Appeal, are part of the same article of the Constitution, were adopted at the same time, are closely related in subject matter, and are worded identically (except for the number of judges required), they should be construed alike. (See Department of Revenue of Ore. v. ACF Industries, Inc. (1994) 510 U.S. 332, 342 [114 S.Ct. 843, 849, 127 L.Ed.2d 165]; American Airlines, Inc. v. County of San Mateo *462(1996) 12 Cal.4th 1110, 1129 [51 Cal.Rptr.2d 251, 912 P.2d 1198].) Accordingly, I conclude that the state Constitution gives litigants a right to oral argument in the California Supreme Court before this court renders a judgment.

¶6“A judgment is the final determination of the rights of the parties in an action or proceeding.” (Code Civ. Proc., § 577.) As the majority concedes, “this court has exclusive original jurisdiction to discipline attorneys,” and an attorney suspension and disbarment order “amounts to an exercise of our jurisdiction and a judicial determination on the merits.” (Maj. opn., ante, at p. 446.) Thus, an attorney discipline proceeding is a judicial proceeding, and an order of- this court suspending or revoking an attorney’s license to practice is a judgment because it is the final determination of the attorney’s rights in that proceeding.

¶7To summarize: The state Constitution grants litigants a right to oral argument before this court renders a judgment, and an attorney suspension or disbarment order is a judgment rendered by this court; therefore, an attorney has a right under the state Constitution to oral argument before this court suspends or disbars the attorney.

¶8II. Written Opinion

¶9The California Constitution provides that “[decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.” (Cal. Const., art. VI, § 14.) Is an attorney discipline proceeding a “cause[]” that is “determine[d]” by an order of suspension or disbarment? If it is, then a decision of this court to grant such an order must be explained in a written opinion.

¶10The majority acknowledges that “cause” means “ “a proceeding in court, a suit, or action,” ’ ” but it denies that an attorney discipline proceeding resulting in suspension or disbarment falls within this definition because, the majority insists, these proceedings are sui generis. (Maj. opn., ante, at pp. 452-453.) I disagree. An attorney suspension or disbarment proceeding is a “proceeding in court” because, as the majority explains, it is a proceeding in which this court exercises original jurisdiction (id. at p. 442) and “renders decisions or orders imposing discipline” (ibid.).

¶11Deciding that an attorney discipline proceeding falls within the general definition of a cause does not end the inquiry. In interpreting the state Constitution’s written opinion provision, this court has held that certain rulings of appellate courts in judicial proceedings do not “determine causes” *463within the meaning of that provision. (Cal. Const., art. VI, § 14.) Thus, a written opinion is not required before an appellate court grants or denies a petition for rehearing (Metropolitan Water Dist. v. Adams (1942) 19 Cal.2d 463, 468 [122 P.2d 257]), dismisses an appeal (People v. Brown (1957) 149 Cal.App.2d 175, 176 [307 P.2d 949]), grants or denies an alternative writ (Funeral Dir. Assn. v. Bd. of Funeral Dirs. (1943) 22 Cal.2d 104, 106-107 [136 P.2d 785]), or denies a petition for review (Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 350-351 [156 Cal.Rptr. 1, 595 P.2d 579]). But the majority does not explain what logic or principle, other than mere custom or convenience, serves to explain when a ruling in a judicial proceeding will or will not trigger our Constitution’s written opinion requirement.

¶12Our decisions in this area indicate that a ruling in a judicial proceeding determines a cause for purposes of the written opinion requirement if it is a final rather than an interim ruling and if it produces an enforceable determination of the parties’ rights.

¶13Interim rulings do not trigger the written opinion requirement. An appellate court need not issue a written opinion when granting a writ of review, an alternative writ, an order to show cause, or a petition for rehearing, because none of these rulings terminate the proceeding or determine the parties’ rights. Rather, in the ordinary course of events, each of these rulings is an intermediate step to be followed by oral argument and a final decision on the merits. It is only at the final stage, when the court enters an order or judgment that determines the parties’ rights, that a written opinion is required.

¶14There is another group of rulings that have the effect of terminating a judicial proceeding in an appellate court but nonetheless do not trigger the written opinion requirement. In this category are rulings denying rehearing, dismissing an appeal, or declining to issue a writ of review, alternative writ, or order to show cause. In each instance, the ruling indicates a decision by the appellate court not to intervene and not to disturb an existing order or judgment that is itself enforceable. Thus, when an appellate court denies rehearing following a decision on appeal, the court has decided not to disturb its own previous decision, which it has already explained in a written opinion. In the other instances, such as an order of this court denying review of a Court of Appeal’s decision on appeal, the order is not itself enforceable as a judgment; it merely permits enforcement of an order or judgment of another court or administrative agency. This is so even when the appellate court’s ruling declining review necessarily reflects a decision on the merits. (See Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd., supra,24 Cal.3d 335, 350-352.)

¶15*464Although the majority insists there is “no legal basis” (maj. opn., ante, at p. 454, fn. 11) for distinguishing this court’s orders in attorney suspension and disbarment matters from this court’s orders summarily denying original writ petitions or denying review of decisions rendered by the Courts of Appeal or by state administrative agencies such as the Public Utilities Commission, there is a fundamental difference. As the majority stresses, “only this court renders decisions or orders imposing [attorney] discipline” (maj. opn., ante, at p. 442) and “we exercise original jurisdiction over disciplinary proceedings . . .” (ibid.). This court, acting through the State Bar, assumes the duty of enforcing our attorney discipline orders. When this court undertakes to exercise original jurisdiction in a proceeding, and in so doing makes a final judicial determination of the parties’ rights in that proceeding, embodied in an enforceable order, we have necessarily made a decision that determines a cause within the meaning of the state Constitution’s written opinion requirement.

¶16In this respect, this court’s decisions in attorney suspension and disbarment matters are similar to, and in my view functionally indistinguishable from, decisions granting a peremptory writ of mandate in the first instance. In mandate proceedings, a court’s decision not to grant an alternative writ or an order to show cause does not excuse the court from its obligation to explain its reasons in writing when it grants a peremptory writ that is an enforceable judgment determining the parties’ rights. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178, fn. 6 [203 Cal.Rptr. 626, 681 P.2d 893].) So also with this court’s attorney suspension and disbarment orders.

¶17The majority cannot have it both ways. The majority insists that this court has not improperly delegated attorney discipline to the State Bar Court, and that this court’s suspension and disbarment orders are the product of this court’s exercise of its own original jurisdiction and this court’s own judicial determination of the merits of the disciplinary proceeding. Yet the majority denies that in so determining the merits of a disciplinary proceeding this court renders a decision that determines a cause within the meaning of the state Constitution’s written-opinion requirement. These positions seem utterly irreconcilable. The majority is correct in concluding that attorney suspension and disbarment orders result from this court’s judicial determination of the merits of attorney discipline proceedings. But, unlike the majority, I would accept what follows logically and unavoidably from this conclusion: Decisions in attorney suspension and disbarment matters determine causes and therefore must be in writing with reasons stated.

¶18*465III. Conclusion

¶19The state government grants individuals licenses to practice a variety of trades and professions, including those of attorney, doctor, dentist, veterinarian, real estate broker, contractor, motor vehicle dealer, and cosmetologist. In general, proceedings to suspend or revoke these occupational licenses occur before administrative tribunals and result in administrative orders that the licensee may challenge by a proceeding in superior court for administrative mandate. (Code Civ. Proc., § 1094.5.) In that superior court mandate proceeding, the licensee has the right to a hearing and, upon request, to a written decision. (Id., §§ 632, 1094.5.)

¶20But attorneys do not have recourse to administrative mandate proceedings because their licenses are suspended or revoked not by an administrative determination, but by this court’s orders. As a consequence, under the majority’s decision today, only attorneys can have their licenses suspended or revoked without a judicial hearing and a written judicial decision. This disparate treatment of attorneys raises serious due process and equal protection questions. I do not address these issues, however, because I conclude that the state Constitution’s oral argument and written-opinion provisions apply to attorney suspension and disbarment proceedings.

¶21The majority asserts that this court can no longer spare the time and resources required to hold oral argument and write an opinion in every attorney suspension and disbarment proceeding. (Maj. opn., ante, at pp. 457-458.) Even if the majority is correct, as it may be, the proper solution is not an expedient but unreasonable construction of the state Constitution to deny attorneys the privileges granted to holders of all other occupational licenses. The Legislature has already given this court a better solution. In 1988, the Legislature amended Business and Professions Code section 6082 to permit review of an attorney discipline recommendation “by the California Supreme Court or by a California Court of Appeal in accordance with the procedure prescribed by the California Supreme Court.” (Italics added.) Under the statute as amended, this court need only establish a suitable procedure, and the burden of giving disciplined attorneys their day in court can be broadly distributed among the Courts of Appeal. At current levels— attorneys sought review in roughly 40 suspension and disbarment matters in 1990 (see maj. opn., ante, at p. 457)—these attorney discipline cases would not substantially add to the workload of the nearly 90 justices of the Courts of Appeal. Should the volume of attorney discipline cases at any point begin to strain the capacity of the Courts of Appeal, the number of Court of Appeal justices could be increased.

¶22In this matter, I would issue a writ of review, hear argument, and render a written opinion.

¶24Reluctantly, even ambivalently, I dissent. They say hard cases make bad law; the result here, however, is foreordained: the majority reaches the only provident conclusion possible in the current circumstances. But it is also true that, underlying its reasoning and result, one has to wonder at the practical value of what this court does under the procedures now prevailing in bar discipline cases. As the court itself has acknowledged only recently, changes in our own rules made in the wake of legislative amendments to the administrative procedures governing bar discipline proceedings “relieve the court of the burden of intense scrutiny of all disciplinary recommendations.” (Cal. Supreme Ct., Invitation to Comment— Proposed Adoption of Rule 951.5, Cal. Rules of Court (Nov. 23, 1999) p. 2; see also Cal. Supreme Ct., Practices and Proc. (1997 rev.) pp. 3, 18-19, 25-26.) Moreover, the matrix of grantable issues identified in California Rules of Court, rule 9541 appears to truncate the scope of our review. And in cases where no writ is sought, we usually content ourselves with less than that measure of “review.” Unless, by dint of skill or luck, the issues are framed so they are deemed to fall within the ambit of rule 954, an attorney facing suspension or disbarment from the right to practice her profession gets no hearing, no opportunity for oral argument, and no written statement of reasons—from this or any other article VI court. (Cal. Const., art. VI, § 14; hereafter article VI.) Instead, she gets a summary denial of review, the one-line order. Is that enough? Regrettably, it seems that, for now at least, it will have to do.

¶25We should not, however, pretend the current legal order does not mark a transformation in the attorney discipline process, one in which a constitutional touchstone—meaningful judicial review by an article VI court—has been jettisoned. A decade ago, Justice Kaufman could trouble to write a vigorous dissent from an opinion of this court upholding summary administrative suspension of a lawyer under emergency circumstances. (Conway v. State Bar (1989) 47 Cal.3d 1107, 1126 [255 Cal.Rptr. 390, 767 P.2d 657, 80 A.L.R.4th 101].) That dissent continues to make persuasive reading today. Why? Because a like situation is presented here, following the 1988 legislative overhaul of the procedures governing attorney discipline. (Stats. 1988, ch. 1159, § 1, p. 3699.) Should we care? More to the point, can we afford to care? Ten years have passed, and the majority sings the same refrain, even if substantively things are not the same as they were when this court filed between 20 and 40 State Bar opinions a term. Under the new regime, attorneys penalized for professional misconduct get less in the way of genuine judicial review of discipline than licensed nonattomeys do. The reasons for this paradox lie in the convoluted history of the legal profession and its intimate relation to the courts, coupled with the extraordinary growth *467in the number of lawyers admitted to practice in California over the past 30 years.

¶26The contemporary anomaly is that that history has produced less in the way of judicial protection than our statutes give to, say, veterinarians and cosmetologists. Some of the circumstances that have contributed to that anomaly—the enormous growth of the legal profession in California and the consequent need for an elaborate disciplinary apparatus, for example—are matters lying beyond the control of this or any other court. Others, however —the threat posed by a growing legislative involvement in attorney discipline, the related bureaucratization of the disciplinary process—we conceivably might have mitigated. (See, e.g., Bus. & Prof. Code, § 6082 [jurisdiction to review attorney discipline lies in this court and the Court of Appeal].) As matters stand, and as the majority opinion attests," it is force of circumstance that obliges us to make- our peace with the new legal order. The majority goes about that task studiously, employing the archaic lexicon of a bygone day to describe the new and different contemporary reality.

¶27That new reality—what a pessimist might describe as the untoward merger of two branches of government in the regulation of attorneys—is especially worrisome as a matter of state constitutional law. For that reason also, it transcends parochial issues of professional discipline. Unlike Congress, by the text of the federal Constitution the legislature of a sovereign of limited powers, state legislatures possess plenary lawmaking powers. That is why structural principles of republicanism common to both state and federal governments—the tripartite division into legislative, executive and judicial branches—assume even greater significance where state government is concerned. What petitioner really objects to is the absence of any indication that, despite the elaborate administrative hoops through which attorneys facing discipline must jump, a court of law, a constitutionally founded judicial body, has considered the lawyer’s claims on the merits before pronouncing judgment. It is not simply that judicial review ensures compliance with statutory commands. It does more, helping to sustain a complex of social values, maintaining a structural balance among the parts of government and, by its existence and vigorous exercise, protecting individual liberty.

¶28What petitioner can legitimately ask from us is not procedural due process. Surely, the elaborate procedures provided attorneys subjected to the State Bar’s disciplinary apparatus are sufficient to satisfy that concern. (See generally Rules Proc. of State Bar.) His complaint goes to a different flaw altogether. It is founded on the rock of the constitutional right to meaningful judicial review of government acts intended to deprive someone of the *468means of livelihood. Review by a constitutional court, review by real judges whose allegiance is to the judiciary, to its standards and ideals—to the rule, in short, of law. Review, moreover, that is seen, observed in the form of reasoned judicial opinions, and in the ritual of oral argument. In combination, these features make up hallowed ground, for they comprise a signal feature of our democracy—the protection of the individual from executive and legislative overreaching by neutral magistrates, magistrates whose decisions are constrained by objective principles of judicial reasoning and by precedent, and whose rulings are an open book. (See Bickel, The Morality of Consent (1975) p. 26 [“Confined'to a profession, the explication of [legal] principle is disciplined, imposing standards of analytical candor, rigor, and clarity.”].) Lacking, as Alexander Hamilton wrote, “either the sword or the purse,” the judiciary exists by virtue of “merely judgment.” (Hamilton, The Federalist No. 78 (Rossiter ed. 1961) p. 465; see also Scalia, The Rule of Law as a Law of Rules (1989) 56 U. Chi. L.Rev. 1175.) That is the essence of the judicial function; that is what is missing in this sui generis special proceeding over which we exercise an inherent authority. (See, maj. opn., ante, passim.)

¶29Judicial judgment—reasoned decisions, rather than decisions with reasons —is the constitutional counter to the appetitive coordinate branches of government, implicit in the architecture of state as well as federal government. We expect, and justifiably so, a different discipline from a court than from a bureaucracy. And because the powers of state government are not textually limited, a close adherence to the principles of the separation of powers' becomes all the more critical to constitutional government. Courts must be especially vigilant, must vigorously resist encroachments that heighten the potential for arbitrary government action. The existence of the administrative state is a legislative admission of an inability to articulate general rules governing conduct. If legislative delegation enlarges the scope of administrative action, it enlarges the scope for arbitrariness as well. When the judiciary cedes its authority to a bureaucracy, when it permits the Legislature to determine the scope of judicial review, the potential for arbitrary government action rises exponentially.

¶30Nothing so well illustrates the through-the-looking-glass quality of the majority’s reasoning as its rejection of petitioner’s claim that his case qualifies as a “cause” under article VI and must be decided “in writing with reasons stated.” The majority’s reasoning is fine, as far as it goes. It omits, however, an observation that ought to be decisive: this court is the only judicial body involved in the attorney discipline process. An attorney’s petition for review to this court marks the first and only time in the disciplinary process that article VI judges are asked to enter the case. For *469that reason, and for that reason alone, our decision, even if it is a summary denial of review, necessarily decides a cause. The majority makes an able attempt to paper over this reality, but in doing so it is compelled to adopt an empty formalism.

¶31The reality is that, as the legal cartel of the past disintegrates, as the demand for legal services continues to surge, the profession has lost its guild-like character and become more like other occupations. (Cf. Posner, Overcoming Law (1995) pp. 63-70; Kronman, The Lost Lawyer (1993) pp. 273-306.) This trend toward occupational homogeneity is reflected in the elaborate administrative apparatus for attorney discipline. But, and again paradoxically, dynamic professional growth has produced contradictions, contradictions that are not lost on attorneys who defend lawyers facing disciplinary charges. By letter brief, an organization of State Bar defense counsel—the Attorney Discipline Defense Counsel—points out that vocational licensees enjoy greater judicial rights than lawyers. And they are right. The host of practitioners of this and that trade, licensed and regulated by government agencies, has access to administrative mandamus in discipline cases, where judges of article VI courts review questions of law de novo and questions of fact under the substantial evidence standard. They get both a full plate of administrative due process and real judicial review. Before honest-to-God judges. (See Code Civ. Proc., § 1094.5.)

¶32That is the way attorney discipline cases used to be decided, in the old days, before the 1988 amendments to the State Bar Act. True, one of the effects of the prior order was the obligation of this court to carry on its docket and decide—almost always after oral argument, always by written opinion—at least 20 State Bar disciplinary cases each term. The substantiality of that largely fact-intensive task cannot be gainsaid. But the principled answer to that difficulty, if difficulty it was, is not to fold the attorney discipline system into the ceaselessly expanding administrative state, with the remark that our summary denial of review qualifies as review on the merits because it’s . . . well, sui generis.

¶33Alas, attorneys faced with the loss of their livelihoods must now make do with the State Bar Court—an entity performing judicial functions but, despite the competence of its members, exercising no judicial powers—and our summary denials, unless the petition can be said to satisfy the criteria of rule 954. Yet the majority continues to pay lip service to the old regime, even using the same words and citing the same cases to paste over a hollowing-out of meaningful judicial review. We have tinkered with our rules so that it appears nothing has changed. But these are only words; the reality is different. In point of practice, in bar disciplinary cases in which we *470decline to grant review, we issue a pro forma order executing the State Bar Court’s “recommended” discipline. (See rule 954(a).) In those cases where review is not sought, it is questionable whether any judicial act of substance takes place. Oh, to be sure, our rules purport to alleviate these concerns. Rule 953, for example, provides for entry of orders by this court, even if ministerial, rather than adopting the legislative model that makes the State Bar Court’s recommendations self-executing. (Compare rule 953(b) with Bus. & Prof. Code, § 6084, subd. (a).) Still, we no longer make an individual decision on the imposition of discipline. And the situation is not much improved if review is sought and denied; the rule gives us no choice but to impose the recommended discipline. (Rule 954(b).)

¶34At the heart of the majority opinion is the supposition that review by any other name is still review and passes constitutional muster; that due process is satisfied by any process, however much the decisionmakers may be driven by bureaucratic agendas or political ties. In this comer of the law, at least, we seeni to be presiding over a union of the legislative and judicial components of government. It may be efficient; it certainly isn’t pretty. And because it seems antithetical to the constitutional design, I dissent.