BARON v. CITY OF LOS ANGELES (1969)

Facts

The case at bench reaches us on stipulated facts.   On May 24, 1967, the Los Angeles City Council adopted Ordinance No. 134571 (Los Angeles Mun.Code § 48.01 et seq.) providing for the registration of “lobbyists.”   The ordinance provides in part:  “ * * * any person who shall engage himself for pay or for any other consideration, * * * for the purpose of attempting to influence the action on municipal legislation by the City Council, any of its committees, any board or commission, or any committee thereof, or any officer or employee of the City charged by law with the duty of conducting a hearing and making a decision thereon, * * * shall, before doing anything in furtherance of such object, register with the City Clerk as a municipal legislative advocate.”

The ordinance contains its own expanded definition of “municipal legislation.”   The term is defined to mean:  “ * * * resolutions, motions, appeals, applications, petitions, nominations, ordinances, amendments, and other matters pending or proposed before the City Council or any of its committees, or before any board or commission, whether created by Charter or by ordinance, or any committee of a board or commission, or any officer or employee of the City charged by law with the duty of conducting a hearing and making a decision as to the matter pending or proposed.”

A person subject to the ordinance is required to register with the City Clerk.   He must, at the time of registration, file a written statement which includes:  his name and business and residence addresses, the name and address of the person represented by him, the duration of his employment, the amount he has been and is to be paid, by whom he has been and is to be paid, how much he is to be paid for expenses, and what expenses are to be paid.   A written authorization from the person represented must also be filed.

Appellant is an attorney at law admitted to the bar of California.   A substantial portion of his practice involves the representation of clients before officers, boards, and commissions of the City of Los Angeles.   On July 14, 1967, appellant, acting for himself “and others similarly situated,” filed an action seeking a declaration that the ordinance is “void and invalid as applied to Plaintiff and other persons similarly situated.”   After appellant and respondent had stipulated to all of the facts which are now in the record, the trial court entered its judgment that:  “[O]rdinance No. 134571 of the City of Los Angeles hereby is declared to be valid and enforceable against the Plaintiff and those similarly situated, except when Plaintiff or those similarly situated, are acting on behalf of others in the performance of a duty or service, which duty or service lawfully can be performed for such other only by an attorney licensed to practice law in the State of California, * * *.”  Appellant (plaintiff) then perfected the appeal which brings the case to us.   Respondent (City of Los Angeles) has not appealed from the portion of the judgment which is adverse to it.

Issues on Appeal

Appellant contends:  (1) the ordinance is invalid as applied to members of the State Bar;  (2) the ordinance is invalid because it is in implied conflict with the Brown Act;  (3) a finding of fact is not supported by the evidence.¹

Impact of State Bar Act

Appellant argues that a lawyer who represents a client in seeking action from the City Council or one of the boards or commissions designated in the ordinance is engaged in the practice of law.   He then contends that the registration requirement of the ordinance is invalid as applied to lawyers because it is in conflict with the statewide regulatory scheme embodied in the State Bar Act (Business and Professions Code section 6000 et seq.) and the Rules of Professional Conduct of the State Bar.   We conclude that the ordinance is validly applicable to members of the State Bar except to the extent that it may purport to require registration as a prerequisite to representation by a lawyer of a client in a quasi-judicial proceeding.

 Validity of Ordinance in General.   Where, as in the case at bench, an ordinance of a chartered “home rule” city is attacked on the ground that it is in conflict with general state law, precedent dictates our approach to the problem.   We are required first to determine whether the subject matter of the ordinance is a “municipal affair.”   If that determination is in the affirmative, the ordinance must be upheld.  (Cal.Const. art. XI, § 6;  Bishop v. City of San Jose, 1 Cal.3d 56, 81 Cal.Rptr. 465, 460 P.2d 137.)   If, however, it is determined that the matter is not a “municipal affair” but rather is of statewide concern, the ordinance will be upheld only if it is not in conflict with the general state law and the subject of the ordinance has not been preempted by state law.  (Bishop v. City of San Jose, supra;  Galvan v. Superior Court, 70 Cal.2d 851, 76 Cal.Rptr. 642, 452 P.2d 930;  In re Hubbard, 62 Cal.2d 119, 41 Cal.Rptr. 393, 396 P.2d 809.)

 To the extent that Ordinance No. 134571 requires registration by persons, lawyers or laymen who represent others for compensation in matters that are not quasi-judicial in nature, it deals with a municipal affair as that term is used in article XI of the California Constitution.   Our Supreme Court has stated in Professional Firefighters, Inc. v. City of Los Angeles, 60 Cal.2d 276, 294, 32 Cal.Rptr. 830, 841, 384 P.2d 158, 169:  “ * * * it becomes necessary for the courts to decide, under the facts of each case, whether the subject matter under discussion is of municipal or statewide concern.”   The ordinance involved in the case at bench requires that persons who seek for compensation to influence local legislative or executive action identify themselves and their principals and disclose their compensation and expenses.   This is a matter of great local concern but of little or no statewide interest regardless of whether the one seeking to wield the influence is a lawyer or a layman.   It is of no direct concern to the State Bar that a lawyer representing a client purchases on behalf of his client a block of ten, or a hundred, tickets at $100–a–plate testimonial dinner for the city dignitary whose judgment on a matter of interest to the client will be decisive.   The residents of the city, however, have a real concern that the facts of the purchase be disclosed.   The ordinance must, therefore, be upheld as one dealing with a municipal affair to the extent it covers activity seeking to influence legislative and executive functions of the city.

 The ordinance is also valid if tested by the rules applicable to local legislation on matters of statewide concern.   Appellants do not contend that there is a direct conflict between Ordinance No. 134571 and state law.   Their argument is rather that the regulation of lawyer conduct has been so preempted by statewide action as to preclude the application of the ordinance to members of the bar.   Our Supreme Court has established the proposition that preemption exists if one of three tests is met:  “(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern;  (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action;  or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality.”  (In re Hubbard, 62 Cal.2d 119, 128, 41 Cal.Rptr. 393, 399, 396 P.2d 809, 815;  Galvan v. Superior Court, 70 Cal.2d 851, 859, 860, 76 Cal.Rptr. 642, 452 P.2d 930.)

Appellant notes that the State Bar Act as contained in Business and Professions Code section 6000 et seq., together with Rule 14 2 of Rules of Professional Conduct of the State Bar, are matters of general law.   He argues that those provisions so fully and completely cover the subject matter of restrictions upon all conduct of lawyers in a representative capacity as to indicate clearly that the subject has become exclusively a matter of state concern.

Our Supreme Court has recently considered the application of the test of preemption argued by appellants to an analogous situation of a broad state regulatory scheme and a local registration ordinance.  Galvan v. Superior Court, 70 Cal.2d 851, 76 Cal.Rptr. 642, 452 P.2d 930, deals with the validity of a San Francisco ordinance requiring the registration of all firearms within the city.   The statewide law contains a multitude of provisions restricting or in some way dealing with the use and possession of firearms.   Included among those statutes is Penal Code section 12026 which states that “no permit or license” shall be required of any adult citizen to keep a concealable firearm at his residence or place of business.   Our Supreme Court, in upholding the San Francisco ordinance, emphasizes that it is merely a registration law and not one which permits the withholding of a license or permit.   The Court determined that despite the number of statewide statutes dealing with firearms there did not appear such a patterned approach to the subject as to indicate an intention of the state to occupy the field to the exclusion of the “very limited regulation” of gun registration.  (Galvan v. Superior Court, supra, 70 Cal.2d 851, 862, 76 Cal.Rptr. 642, 452 P.2d 930.)

In the case at bench, we deal with a statewide statutory scheme, the State Bar Act and the Rules of Professional Conduct, which constitutes in effect a licensing law for lawyers.   We deal also with a local ordinance which requires registration but not licensing.   The analogy to Galvan requires that we reject appellant's argument of preemption to the extent the ordinance requires registration with respect to conduct seeking to influence legislative and executive activity.

Agnew v. City of Los Angeles, 51 Cal.2d 1, 330 P.2d 385 upon which appellant relies is distinguishable from the case at bench.   Agnew held invalid, as in conflict with the general state licensing law governing electrical contractors, a Los Angeles ordinance which purported to require registration of those contractors performing work within the city and which empowered the city to withhold or revoke registration for misconduct.   As noted by our Supreme Court in Galvan, supra, 70 Cal.2d 851, 856, 76 Cal.Rptr. 642, 452 P.2d 930, the ordinance considered in Agnew regardless of its title, sought to impose a city licensing requirement for the same conduct licensed by the state.   No power to withhold registration of legislative advocates is present in the ordinance involved in the case at bench.   There is thus not present here an attempt by a municipality to require a license in addition to that granted by the state.   It was that attempt which invalidated the ordinance in Agnew.

 We conclude that the general state law has not so fully and completely covered the field as to exempt all activity of lawyers in a representative capacity from the requirement of a local registration ordinance.   We conclude, also, that the subject matter of Ordinance No. 134571 has not been partially covered by a general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action.   No specific terms indicating an express lack of tolerance have been called to our attention and we have found none in our own research.   Nor is the matter of local municipal lobbying one in which it can fairly be said there is a paramount state concern.   The residents of Bridgeport, California, may have such an intimate knowledge of the happenings in their small cohesive community as to preclude the need for an ordinance requiring registration and disclosure by those persons who seek to influence its legislators and executives.   The same knowledge of the detailed operations of city government cannot be ascribed to the residents of Los Angeles.  )See Galvan v. Superior Court, supra, 70 Cal.2d 851, 863, 76 Cal.Rptr. 642, 452 P.2d 930.)

 The third test of preemption is also absent from the case at bench.   The subject matter of the registration ordinance cannot be said to create an adverse effect on transient citizens of the state which outweighs the possible benefit to the municipality.   The burden of registration is small when registration cannot be withheld and the potential benefit of disclosure of those who seek to influence legislative and executive action is large.

Validity of Ordinance as Applied to Quasi-judicial Activity.   Ordinance No. 134571, while ostensibly requiring registration of persons who for compensation seek to influence municipal legislation, defines “municipal legislation” so broadly as to include within its scope activity of local boards and commissions which is quasi-judicial in character as that term is used in the context of matter reviewable in administrative mandamus pursuant to Code of Civil Procedure section 1094.5.   For example, the ordinance, on its face, requires registration of counsel for the licensee in a proceeding before the Los Angeles Police Commission seeking to revoke a license to engage in a lawful activity.   The impact of the ordinance in such a situation is materially different from its general effect.

 The quasi-judicial activities of local agencies are an inherent part of the judicial process.   Typically, the record made before the local agency is the sole basis upon which judicial review will proceed.   Such activity is thus not so localized that it can be said to be a municipal affair.  (See Eastlick v. City of Los Angeles, 29 Cal.2d 661, 177 P.2d 558, 170 A.L.R. 225.)

 The processes of review provided in Code of Civil Procedure section 1094.5 indicate that quasi-judicial proceedings are exclusively matters of state and not of local concern.   The ordinance has some effect upon transient citizens seeking to employ those processes of review, and there is not present in this limited area the same potential benefit to the local community that is present in the other areas of application of the ordinance.   We conclude, therefore, that Ordinance No. 134571 must be held invalid as in implied conflict with state law to the extent that it purports to require registration of lawyers engaged to represent clients in quasi-judicial proceedings.

Brown Act

 Appellant argues that Ordinance No. 134571 is in conflict with the Ralph M. Brown Act (Gov.Code §§ 54950 et seq.).   He relies upon Government Code section 54953.3 which states in part:  “A member of the public shall not be required, as a condition to attendance at a meeting of a legislative body of a local agency, to register his name and other information, to complete a questionnaire, or otherwise to fulfill any condition precedent to his attendance.”   There is no direct conflict between section 54953.3 and Ordinance No. 134571.   The ordinance requires registration and the furnishing of information not as a condition to attendance at a meeting but as a condition to the representation for pay of others in an effort to influence municipal action.   Neither is there any implied conflict between the ordinance and the statutory scheme of the Brown Act.   The Brown Act seeks to prevent the potential evil that may flow from secret meetings of local government agencies.   Ordinance No. 134571 is addressed to a different subject, the potential of harm to the public that may arise out of improper lobbying activity.

Findings of Fact

 Appellant argues that the finding of fact of the trial court to the effect that not every appearance of an attorney in a representative capacity constitutes the practice of law is not supported by the stipulation of fact which is the sole record of the proceedings in the trial court.   We need not consider this contention because the finding of fact, if erroneous, is not relevant to the decision here reached.   Hence, any error in the finding is not prejudicial.

Conclusion

There remains the problem of the application of the conclusions here reached to the judgment of the trial court.   That judgment declares that Ordinance No. 134571 is valid and enforceable “ * * * except when Plaintiff or those similarly situated are acting on behalf of others in the performance of a duty or service, which duty or service lawfully can be performed for such other only by an attorney licensed to practice law in the State of California, * * *.”  We see three difficulties in the quoted language of the judgment.   The language which relates the requirement of registration to the concept of the unlawful practice of law possesses an inherent uncertainty.   The law is, in our opinion, neither certain nor fully developed in defining the unlawful practice in the context of administrative proceedings.   Nor will future litigation over the application of the registration requirement in particular situations be a satisfactory process for the development of the much more generally applicable concept of that which is the unlawful practice of law.   Also, it is not the possibility that a layman might be able to represent a party in a quasi-judicial proceeding that renders Ordinance No. 134571 inapplicable to representation by lawyers in such proceedings.   It is rather that the nature of quasi-judicial proceedings is so much a part of the judicial process that the statewide (and traditional) regulation of lawyers with respect to the judicial process preempts the field.   We conclude, therefore, that the judgment must be reversed with directions to the trial court.

The judgment is reversed.   The trial court is instructed to enter a new judgment declaring that Ordinance No. 134571 of the City of Los Angeles is valid and enforceable against the Plaintiff and those similarly situated except when Plaintiff or those similarly situated are acting on behalf of others in a proceeding quasi-judicial in nature.   Each party is to bear its own costs on appeal.

FOOTNOTES

1.   The brief of Amici Curiae contains the additional contention that the phrase “attempting to influence action on municipal legislation” used in the ordinance does not encompass activity of a lawyer representing a client.   They argue that lawyers, acting in their professional capacity, traditionally have not been treated as lobbyists.   We cannot accept the contention.   The City Council of Los Angeles was entitled to adopt its own definition of proscribed activity subject only to the limitations of superior law.   The definition as adopted by its terms does not exclude lawyers acting in a professional capacity.

FN2. “A member of the State bar shall not communicate with, or appear before, a public officer, board, committee or body, in his professional capacity, without first disclosing that he is an attorney representing interests that may be affected by action of such officer, board, committee or body.”.  FN2. “A member of the State bar shall not communicate with, or appear before, a public officer, board, committee or body, in his professional capacity, without first disclosing that he is an attorney representing interests that may be affected by action of such officer, board, committee or body.”

THOMPSON, Associate Justice.

WOOD, P.J., and LILLIE, J., concur. Hearing granted;  BURKE, J., did not participate.