As even folks outside the world of lawyers know, the California Supreme Court has issued an opinion recommending an undocumented immigrant (or illegal alien, if you agree with Justice Chin) for admission to the State Bar of California (In Re Garcia on Admission, case no. S202512, filed 1/2/14.) The decision discusses Federal immigration law potentially barring such admission (8 U.S.C.§1621) and recently enacted California law passed specifically in response to Mr. Garcia’s admission (Bus. & Prof. Code §6064(b).).
But it also discusses whether illegal status is itself a inherently disqualifying because it shows bad moral character. And that’s the part that aleady has nativists all riled up.
The status of undocumented immigrants/illegal aliens is the hottest of hot button issues right now. While a majority of Americans support some type of immigration reform is appropriate, a very vocal minority opposes any attempt to provide a path to citizenship for this group of people, clearly present in the United States in violation of Federal immigration law. Their principle argument is that to do so would reward people for breaking the law, people who have indulged in illegal, and in the eyes of some, immoral behavior. The temperature of the debate is apparent in Justice Chin’s concurring opinion where he spends considerable time addressing the proper nomenclature to be used in describing this group for reasons that don’t seem readily apparent from his opinion.
The legal issues surrounding Mr. Garcia’s admission involve convoluted statutes passed in the mid 1990’s that themselves reflect our country’s long polarized views on immigration. § 1621(a) generally imposes restrictions on the granting of any state or local benefit on aliens, with some exceptions, and §1621 (c)(1)(A) specifically defines those benefits to include professional licenses. But §1621(d) establishes its own exception, allowing a State to pass a statute authorizing the conferring of the benefit.
At that time of oral argument in the case on September 4, 2013, no such statute existed. Within a few weeks, the Legislature passed AB 1024, an amended “spot bill”, by overwhelming majorities, that created news Bus. & Prof. Code §6064(b), which authorized the granting of law license to an applicant not lawfully present in the United States, providing they otherwise qualify for admission. After the bill was enrolled on September 26, 2013, the California Supreme Court vacated its submission of the Garcia matter, requested supplemental briefing and took the matter under submission until January 1, 2014, the effective date of the new statute. The decision issued the next day.
The narrow legal issues involving the arcana of Federal immigration law solved, the Court then waded into the oven, addressing objections raised in one (and only one) of the many amicus briefs filed in the Garcia matters, filed by a former State Bar discipline prosecutor. The objections mirrored those raised by the vocal minority that opposes any immigration reform: how can a person whose very presence in this country is a violation of law, and who may not even legally work in this country, take an oath to uphold the law as required by Bus. & Prof. Code §6077?
In response, the Supreme Court examined one of its most colorful precedents, Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447. This admission case involved the young Terence Hallinan, future District Attorney of San Francesco, son of left wing labor lawyer Vincent Hallinan, whose pugnacious nature had earned him the nickname “KO Hallinan”. In that case, the Court had concluded that’s Mr. Hallinan’s habit of getting into fistfights, some leading to criminal convictions, did not mean that “KO” lacked good moral character. Our 2014 Supreme Court concluded that “the fact that an undocumented immigrant is present in the United States without lawful authorization does not itself involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the State Bar” explaining that “while an undocumented immigrant’s (sic) presence in this country is unlawful and can result in a variety of civil sanctions under federal immigration law…it does not constitute a criminal offense.”
The former Bar prosecutor’s related argument, one echoed by the United States Department of Justice, was that it would be improper to license a lawyer who would not be able to work in the United States. The Supreme Court pointed out that there are other uses for a law license but for making money. And a rather more specious argument he advanced, that Mr. Garcia might suddenly be removed from the jurisdiction by immigration authorities, leaving clients unprotected, was dealt with by the observation that any attorney might suddenly be removed from the jurisdiction by that ultimate authority, the Grim Reaper.
The specific evidence regarding Mr. Garcia’s moral character was very positive but not spotless. He admitted that he misrepresented his status when applying for a job at age 17, information that was not initially supplied to the Committee of Bar Examiners, apparently based on poor advice from his counsel. But these spots did not dissuade the Supreme Court from finding that he had met his burden of establishing good moral character (Bus. & Prof. Code §6060.)
It is certain that the Garcia decision will inspire a lot of comment, and most of it will possess heat, if precious little light. What is perhaps most interesting from my little corner of the world, is the Supreme Court’s liberal language regarding moral turpitude and criminal convictions, language that seems inconsistent with the spirit of how admissions and discipline authorities have been operating the last few years, a sprit that I see animating the dissenting brief from the former State Bar prosecutor. Will the State Bar take something from Garcia beyond the immigration issues? One can hope.