5.1.1

Business and Professions Code §6086.10:  Attorney Discipline, Enforcement of

Case:

Gadda v. State Bar of California (9th Cir. 2008) 511 F.3d 933

Issue:

Is retroactive application unconstitutional of amendments to a law providing for the enforcement against a disbarred attorney by the State Bar of an award of costs that was entered before the enforcement mechanism was enacted?

Holding:

No.  The statute authorized the State Bar to enforce a 2003 California Supreme Court cost award against the disbarred attorney through a money judgment, even though there was no statutory enforcement mechanism at the time of the California Supreme Court’s order of disbarment and costs.  Before the amendments were enacted, the State Bar would collect costs as a condition of the attorney’s readmission to the Bar.   The Court of Appeals found that the California Legislature explicitly intended that its changes to Business and Professions Code sections 6086.10 and 6140.5 would apply to costs ordered but unpaid on the date the changes become operative on January 1, 2004.  (Id. at 938.)

Having concluded that the amendments applied retroactively, the Court found retroactive application was not unconstitutional.  “In amending section 6086.10, California’s legislative purpose was a legitimate one:  to recover costs owed to the Bar by disbarred attorneys who do not seek readmission.  The amendment is rationally related to that legitimate end: by providing a mechanism to obtain a money judgment, the Bar can now more easily recover costs owed to it.  California’s retroactive application of section 6086.10 does not offend due process.”  (Ibid.)

Notes:

The Court also rejected Gadda’s argument that application of the amendments retroactively violated the ex post facto clause of the constitution.  The Court held that “[t]he availability of a new mechanism to collect costs cannot be construed as remotely punitive so as to negate California’s civil intentions.”  (Id. at 939.) 

As the Court held in an earlier case brought by Gadda, the Court rejected Gadda’s contention that the Bar had no jurisdiction to collect costs because he only practices in federal immigration courts.  (See EQ, 1.2.4 for an abstract of the earlier opinion.)