Wednesday, September 4, 2013

Argument Recap in In re Garcia Before California Supreme Court: Does Federal Law Bar Licensing by the States of Undocumented Immigrants to Practice Law?

This morning, I, along with many others including Professor Bill Hing, attended the oral argument in the California Supreme Court on the question whether Sergio Garcia, an undocumented immigrant, should be admitted to practice law in California.   Along with a team of lawyers from Minami Tamaki LLP, Gibson Dunn & Crutcher LLP, Springmeyer Reddy, and the California State Bar, Professor Hing and I served as counsel on the briefs filed by the California State Bar in support of admission of Garcia. 

For a preview of the argument and links to the various briefs filed in the case, click hereHere is a video of the arguments. 



Having initially come to the United States from Mexico as an infant, Sergio Garcia earned his undergraduate degree from Chico State and completed his law studies at an unaccredited law school in Chico.  He passed the California bar exam and, after disclosing his immigration status, was found by the State Bar to have the necessary good moral character for admission.   Garcia has applied, and is eligible for, an immigrant visa but is waiting because of the long line facing immigrants from Mexico who are seeking particular kinds of family and employment visas.

The California Supreme Court issued an order calling for briefing on Garcia's admission.  Besides the State Bar and Sergio Garcia, the California Attorney General filed a brief in support of admission.  Many other bar associations and other groups also filed briefs in support of admission.  Former Justice Carlos Moreno filed an amici brief in support of admission of Garcia on behalf of the Los Angeles County Bar Association and a number of other organizations.

To the surprise of many observers, the U.S. Department of Justice filed a brief opposing admission of Garcia to the state bar, claiming that a part of 1996 welfare reform (8 U.S.C. § 1621) designed to bar undocumented immigrants from receiving publlic benefits from the state.  The brief was filed in August 2012, a few months before the 2012 presidential election.  Presumably, the Obama administration in all likelihood did not want a decision in the case to adversely affect the administration in the election; the filing of the brief presumably helped delay a final decision in the case until after the election.   Suggesting that it did not want to bring attention to the Obama administration's opposition to the admission of undocumented immigrants to practice law, the Justice Department in recent days declined to make anyone available for an interview with NPR to explain its position.

Among other things, the case requires the interpretation of the following language in 8 U.S.C. § 1621(c), which defines a "public benefit" to include

"any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government . . . ." (emphasis added).

In the briefs and at the argument, all parties (and most of the Justices) seemed to agree that the California Supreme Court, which issues a license to practice law in California, is not a "public agency" under Section 1621(c).  The U.S. government, however, claimed that a bar license is issued by an entity -- the California Supreme Court -- supported by "appropriated funds of a State" and that this satisfied the statutory definition of a public benefit. 

In contrast, the State Bar contended that precedent required a "clear statement" that Congress was seeking to intevene in a "core" state judicial function and that the statute was too unclear to satisfy this clear statement rule.    

Here is the Above the Law legal analysis, which favors Garcia's admission.

Much of the oral argument focused on the meaning of the statutory language.  It seems fair to say that it was a "hot bench," with many questions for the advocates.  Several Justices wondered why a license to practice law shuld be treated treated differently under the statute than other "professional licenses."  News reports, including a report in the Los Angeles Times, characterized the justices as skeptical of Garcia's statutory arguments.

As always, one should be careful not to speculate too much about the outcome of a case based on the oral arguments.  Remember how far off the predictions were on the U.S. Supreme Court's decision in the health care reform case after oral arguments?  For months, the Solicitor General's argument was criticized to no end.

Here is the line up of the advocates in the arguments:

James Wagstaffe argued the case for the Committee of Bar Examiners of the State Bar.

Jerome Fishkin argued the case on behalf of Sergio Garcia.

Ross Moody argued the case on behalf of Amicus Curiae California Attorney General Kamala Harris.

A Michigan law grad who clerked for Justice Souter in 2006-07, Daniel Tenny of the U.S. Department of Justice argued the case on behalf of the United States.  It is somewhat surprising that the Obama administration did not send a more senior attorney to argue the U.S. government's position in a high profile case in the California Supreme Court.  It is consistent with an attempt by the administration to keep a low profile in the case.


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