Unlike Florida’s Bar Examiners who recently faced a similar situation involving undocumented law school graduate Jose Godinez-Samperio, the California Committee of Bar Examiners didn’t leap over their responsibility by asking for an advisory opinion. Instead, after reviewing Garcia’s passing bar examination results and deliberating on his moral character determination, the California Bar Examiners certified Garcia’s admission to the bar.
But after filing their routine motion to the supreme court to have Garcia admitted, the court exercised a prerogative it believes it has and opted instead to unanimously take the decision out of the hands of the bar examiners. The California Supreme Court will decide the matter for themselves – - – and not just concerning Sergio Garcia but with respect to the broader issue of undocumented law school graduates and whether they can practice law in California.
In its Order, the California high court asked that five specific questions be briefed. Clearly, these are more highly focused than the general question asked of the Florida Supreme Court: “Whether Undocumented Immigrants Are Eligible for Admission to The Florida Bar.”
Among the issues the California court wants briefed are:
1. Does 8 USC § 1621, subdivision (c) apply and preclude this court’s admission of an undocumented immigrant to the State Bar of California? Does any other statute, regulation, or authority preclude the admission?
[Note: 8 USC § 1621 is the U.S. Code section entitled, "Aliens who are not qualified aliens or nonimmigrants ineligible for State and local public benefits." The relevant subdivision (c) to be interpreted maintains that nonqualified aliens and nonimmigrants under the Immigration and Nationality Act are not eligible for any "State or local public benefit." The statutory definition of "benefits" includes "the issuance of a professional license to, or the renewal of a professional license." Only foreign national applicants not physically present in the United States are excepted.]
2. Is there any state legislation that provides — as specifically authorized by 8 U.S.C. section 1621, subdivision (d) — that undocumented immigrants are eligible for professional licenses in fields such as law, medicine, or other professions, and, if not, what significance, if any, should be given to the absence of such legislation?
3. Does the issuance of a license to practice law impliedly represent that the licensee may be legally employed as an attorney?
4. If licensed, what are the legal and public policy limitations, if any, on an undocumented immigrant’s ability to practice law?
5. What, if any, other concerns arise with a grant of this application?
The California Supreme Court also directed that by June 18,2012, the Bar Examiners and Garcia file opening briefs in support of the Committee’s motion. The Court also invited others to file amicus curiae briefs in support or opposition, especially from California and U.S. Attorneys General. Highly instructive for proponents would be a close reading of the amicus curiae brief arguments filed in support of Godinez-Samperio in Florida by the Dream Bar Association.
These include threshold jurisdictional questions, preemption, due process, and one that I think underscores the futility of belatedly locking the barn door after the horse has gotten out, i.e., that student-college contractual relationships are circumscribed by the Contracts Clauses of Article I, section 10, clause 1 of the United States Constitution.
This logically leads to the economic waste argument I find so troubling. Why now disingenuously deny a license to practice after having already allowed an undocumented immigrant to take the Law School Admissions Test; enroll in a state accredited law school; take and complete the required curriculum; pay obscene amounts for tuition, fees, and books; graduate; sit for and pass the bar exam; and submit to a moral character determination? And now you want to bar the barn door?
I’ve previously blogged on the topic of undocumented law school graduates and indeed, last month, gave six reasons why undocumented law school grads Cesar Vargas, Jose Godinez-Samperio and Sergio Garcia ought to be licensed.
But since the California Supreme Court has historically had an inordinate amount of influence among U.S. state courts, while not dispositive in those other jurisdictions, those courts tend to pay attention to what California does. Thanks to the California Supreme Court’s announcement yesterday, Sergio Garcia’s case has just taken on a much more momentous dimension.