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Court Evaluates Retroactive Application of Statute Amendment

Gadda v. State Bar of California, 511 F.3d 933 (C.A. 9, Dec. 27, 2007)

Miguel Gadda was admitted to the California State Bar in 1972. In 1990, the Supreme Court of California suspended Gadda for two years for client neglect. In 2000, the bar recommended disbarment of Gadda for misconduct that occurred during the period of 1994 to 1999. In November 2002, the bar filed a certification of disbarment costs against Gadda in the amount of $21,845.14; the California Supreme Court in 2003 adopted the recommendations of disbarment and costs. In June 2005, the disbarment costs had still not been paid and as a result, a letter was sent to Gadda by the bar that if the costs were not paid, a judgment would be filed against him in state court.

Gadda filed suit in District Court (N.D.Calif.) against the bar challenging his disbarment and the assessment of costs. The District Court held a hearing and then dismissed Gadda's complaint.

On appeal, the Court considered Gadda's argument that the retroactive application of a 2003 amendment to Calif. Bus. & Prof. Code §6086.10 was unconstitutional. The applicable section originally stated that costs incurred during a suspension/disbarment should be paid as a condition of reinstatement. In 2003, an amendment to the section permitted a money judgment to enforce any costs order.

The Court first determined that application of the amendment to Gadda was retroactive, because it affected his rights and obligations. It next had to determine whether the retroactive application was constitutional. The plain language of the statute did not indicate whether the legislature intended it to apply retroactively. As a result, the Court looked to legislative intent. There was evidence that the legislature intended for the amendment to apply to costs and assessments ordered but unpaid on the date the act became operative, and Gadda fell in to this category.

The Due Process clause requires that retrospective economic legislation only needs to survive a rational basis review. The Court determined that the purpose of the statute was a legitimate method to recover costs from disbarred attorneys who did not seek readmission to the bar. Furthermore, the amendment was rationally related to the aforementioned purpose since it provided a mechanism for the bar to obtain a money judgment.

Based on the foregoing reasons, the Court of Appeals affirmed the dismissal of Gadda’s complaint.



Judge(s): Jerome Farris, Robert Beezer, & Sidney Thomas
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Administrative Law , Civil Procedure
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Miguel Gadda Pro Se

Defendant Lawyer(s) Defendant Law Firm(s)
Michael Loewenfeldt Kerr & Wagstaffe LLP
Edward A. Olsen Office of the U.S. Attorney
Kevin V. Ryan Office of the U.S. Attorney
Marie M. Moffat The State Bar of California
Colin P. Wong The State Bar of California
Lawrence C. Yee The State Bar of California
Joann Swanson U.S. Department of Justice



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defendants-appellees. was the legislative intent." aetna cas. & sur. co. v. indus. against gadda were ordered pursuant to existing law. accord- 16776 gadda v. state bar of california nia, san francisco, california, for defendant-appellees the state bar of california, tracey mccormick and betty yung. f.2d 754, 756 (9th cir. 1987)). pro se. california legislature intended for the statute to be so applied. i under the supreme court's decision in smith v. doe, 538 originally due only upon reinstatement or return, but after the miguel gadda, esq., nia business and professions code violates neither the due court properly dismissed gadda's claims with prejudice and upon. which affects rights, obligations, acts, transactions and condi- amending section 6086.10, california's legislative purpose cir. 2004) (internal quotation omitted). the costs imposed beezer, circuit judge: "[i]t is the intent of the legislature that the changes made to we review a judgment dismissing a case on the pleadings ranted under the circumstances. id. gadda has now been dis- gadda filed suit in the northern district of california of the law, but merely provided the bar with a new avenue to such as gadda. there is an `express retroactivity provision, a statute will not it is well established that issues cannot be raised for the first time in a d.c. no.state of california; board of cv-05-03112-mhpimmigration appeals; court. we have previously considered this argument, gadda, a disciplined attorney only upon application for readmission. to deem it civil." hatton v. bonner, 356 f.3d 955, 961 (9th upon de novo review, that the complaint could not be saved be applied retroactively unless it is very clear from extrinsic [3] in the absence of express retroactivity language in the nor has any court ordered them from gadda. both parties agree in their 16782 gadda v. state bar of california tion 6086.10. 31012596, at *1 (cal. bar ct. 2002). the review department retroactive legislation that the law applicable to a particular his motion for summary judgment until after their motions were ruled v costs already owed cannot be construed as remotely punitive chief, civil division, and edward a. olsen, assistant united v. protects him from the effect of new legislation. in plaut, the for publication the code to permit enforcement of an order imposing costs in "california courts comply with the legal principle that unless 16779gadda v. state bar of california tional sense. "[a] retroactive or retrospective law `is one tracey mccormick; betty yung; no. 06-15344 de novo. turner v. cook, 362 f.3d 1219, 1225 (9th cir. ninth circuit court of appeals. see gadda v. ashcroft, 377 whether section 6086.10 constitutes retroactive punishment 6086.10 to gadda retroactively, we determine whether the application.' " myers, 28 cal. 4th at 841 (quoting evangelatos application of section 6086.10 does not offend due process. case. it is well established that district judges have "inherent san francisco, california actively, we use california rules of statutory construction. in re eastport ("bia") and all immigration courts throughout the united tions which are performed or exist prior to the adoption of the a letter requesting that he voluntarily pay the owed costs. if against the bar, bar employees tracey mccormick and betty 16783gadda v. state bar of california of the bar agreed and held that gadda's disbarment was war- rather, it was the bar's practice to collect a cost award from in determining whether california's statutory amendment applies retro- states attorney, san francisco, california, for defendant- 2004. the california legislature clearly intended that section is a retroactive application of the statute. marilyn h. patel, district judge, presiding 6086.10 is being improperly applied against him. citing plaut those costs. the availability of a new mechanism to collect missal upon amendment, nor is one apparent. because the supreme court of the gadda's argument is particularly misplaced because he actually agreed affirmed. he did not, the bar warned, a judgment would be filed against 16781gadda v. state bar of california 16773 canon of interpretation that statutes are not to be given a retro- jennifer barnes and immigration judges miriam hayward, iii of the california legislature in enacting the statute was to 2003 amendments the bar may enforce the cost order as a review in order to pass constitutional muster. that is, the stat- misconduct from 1994 to 1999. in re gadda, 2002 wl paid as a condition of reinstatement of or return to active 16777gadda v. state bar of california 2001); see also cal. bus. & prof. code 6086.10(a) ("in any process clause of the fourteenth amendment nor the ex post security; michael chertoff, ary proceedings." in re taggart, 249 f.3d 987, 990 (9th cir. without leave to amend. saul v. united states, 928 f.2d 829, stat. 334 (emphasis added). in gadda's case, the california (2002); see also landgraf, 511 u.s. at 269. gadda's debt was challenge the cost order. on june 1, 2005, the bar sent gadda bar seeks such a money judgment from gadda. consider his summary judgment motion before dismissing the gadda was admitted to the california state bar ("the bar") (cal. 1990). the hearing department of the state bar court chertoff, executive office for immigration review attorney so as to negate california's civil intentions. the ex post facto city of l.a., 782 f.2d 829, 831 (9th cir. 1986). the district united states court of appeals for the ninth circuit and the kevin v. ryan, united states attorney, joann m. swanson, spective economic legislation need only survive rational basis entirety. gadda timely appeals.2 452 f.3d 1066, 1072 (9th cir. 2006). a member who resigns with disciplinary charges pending or motors corp. v. romein, 503 u.s. 181, 191 (1992)). in membership." at that time, the business and professions ii opening appellate brief. officers for justice v. civil serv. comm'n, 979 appeal from the united states district court gadda's summary judgment motion was clearly within her miguel gadda, san francisco, california, plaintiff-appellant, yung, the supreme court of california, the bia, the depart- order imposing discipline, or accepting a resignation with a are now "penalties." cal. bus. & prof. code 6086.10(e). barred attorneys who do not seek readmission. the amend- 3 "promote rehabilitation and to protect the public." cal. bus. gonzalez; mimi s. yam, f.3d 934 (9th cir. 2004) (recounting gadda's professional intended retroactive application of the statute. id. at 844. the co., 322 f.3d 1086, 1100 (9th cir. 2003) (quoting gen. united states court of appeals miguel gadda ("gadda") appeals, pro se, the district barred by the state of california, the bia, the united states ambiguous as to retroactivity will be construed as unambigu- that the finality of the california supreme court's cost order code did not provide a method for enforcing the cost award. section 6086.10 runs afoul of the ex post facto clause merely provided a vehicle for the bar to collect the debt that district court for the northern district of california, the plaintiff-appellant, opinion by judge beezer 16780 gadda v. state bar of california more easily recover costs owed to it. california's retroactive neglect. gadda v. state bar of cal., 787 p.2d 95, 102 [5] gadda also argues that the retroactive application of in the amount of $21,845.14. in a february 2003 order, the mimi s. yam and alberto gonzales. in his first amended sections 6140.5 and 6086.10 are frequently referenced together in the rized to practice before the board of immigration appeals courts. appellees board of immigration appeals, department of 843 (9th cir. 1991). statute.' " myers v. philip morris cos., 28 cal. 4th 828, 839 allowing amendment would be futile, we hold that the district before the ninth circuit). opinion in 1975. he became a member of the bar of the united states spective operation unless it is clearly made to appear that such 514 u.s. at 227. plaut is inapplicable here. the 2003 amend- trict court dismissed gadda's complaint with prejudice in its & prof. code 6086.10(e). the 2003 amendments to section department of homeland opinion legislative history of the statutory amendment reveals that fornia supreme court entered the $21,845.14 cost order iam hayward, alberto gonzalez and mimi s. yam. facto clause, we affirm. tion of the 2003 amendment to section 6080.10 of the califor- but unpaid on the date this act becomes operative." 2003 cal. by a member who is actually suspended or disbarred shall be gadda has not raised any issues affecting the federal appellees in his was a legitimate one: to recover costs owed to the bar by dis- tively. there is a traditional presumption against the retroac- 6086.10 merely provide a new avenue for the bar to recover because the 2003 amendments indicate that the costs imposed ness and professions code stated that "costs assessed against either in purpose or effect as to negate [the state's] intention *the panel unanimously finds this case suitable for decision without ment is rationally related to that legitimate end: by providing tions6086.10and6140.5ofthebusinessandprofessionscode.1 ments to section 6086.10 did not alter a court's interpretation him in state court pursuant to the 2003 amendments to sec- 377 f.3d at 943--46 (9th cir. 2004), and again reject it here. gadda argues that the bar had no jurisdiction over him to 16778 gadda v. state bar of california from practice for two years for several instances of client 511 u.s. 244, 265 (1994). in california, "[i]t is an established clear intent. the session laws for the 2003 amendments state, a direction that the member shall pay costs."). when the cali- secretary; jennifer barnes; him. after requesting briefing and holding a hearing, the dis- reply brief. see united states v. montoya, 45 f.3d 1286, 1300 (9th cir. gations that existed prior to the amendments. the bar's were enacted and that section 6086.10 is not being applied clause is not implicated by the retroactive application of sec- funds. the bar has not suggested that gadda owes any such assessments state a claim de novo. pakootas v. teck cominco metals, ltd., missal without leave to amend is improper unless it is clear, his claims with prejudice and without leave to amend. "dis- sources that the legislature must have intended a retroactive sidney r. thomas, circuit judges. 1467, 1472 (9th cir. 1991). gadda has not suggested any pos- miriam hayward; alberto ously prospective. id. here, the plain language of section for the northern district of california case was something different from what a court said it was. with the defendants' request for an extension of time to file a response to supreme court ordered his debt paid on february 21, 2003. v. sup. ct., 44 cal. 3d 1188, 1209 (1988)). a statute that is assocs., 935 f.2d 1071, 1079 (9th cir. 1991) (citing in re anderson, 824 section 6086.10, as amended, went into effect on january 1, accident comm'n, 182 p.2d 159, 161 (cal. 1947).3 money judgment. this change affects gadda's rights and obli- michael von loewenfeldt and holly hogan, san francisco, 6086.10 be retroactively applicable to disbarred attorneys apply retroactively, such legislation may still run afoul of the "california law requires the california supreme court to sible way that he could cure his complaint to survive dis- wong, office of general counsel, the state bar of califor- before: jerome farris, robert r. beezer, and gadda claims that the district court improperly dismissed on september 8, 2003, the california legislature amended ute must be based on "a legitimate legislative purpose fur- misdeeds and ordering him disbarred from the practice of law determined in 2000 that gadda had committed myriad acts of judgment on the pleadings. because the retroactive applica- thered by rational means." campanelli v. allstate life ins. against gadda in february 2003, section 6140.7 of the busi- collect owed costs. f.2d 721, 726 (9th cir. 1992). in his reply brief, gadda attempts to correct collect costs because he only practices in federal immigration court's order granting defendants' motions to dismiss and for the state bar of california; vi on november 15, 2002, the bar filed a certificate of costs oral argument. see fed. r. app. p. 34(a)(2). [2] the bar argues that the california supreme court's cost iv for the ninth circuit in 1990, the supreme court of california suspended gadda v. spendthrift farm, inc., 514 u.s. 211 (1995), he contends intended it to apply retroactively. retroactively to gadda. the bar suggests that the amendment 4 disciplinary matter pending, the supreme court shall include order recommending disbarment and costs. gadda did not statute, extrinsic sources must show that the legislature clearly the 2003 amendment to section 6086.10 against him retroac- 2 tive application of legislation. landgraf v. usi film prods., california; marie m. moffat, lawrence c. yee and colin p. [4] even where the legislature intends for legislation to complaint, gadda made numerous challenges to his disbar- 6086.10 does not give any indication whether the legislature 2004). we review a district court's dismissal for failure to attempt to collect gadda's owed costs under section 6086.10 gadda raises two further arguments as to why section briefs that section 6140.5 is not at issue in this appeal. code by this act shall apply to costs and assessments ordered authority.4 [1] gadda argues that the bar is unconstitutionally applying gadda contends that the district court erred by failing to supreme court held that congress could not declare through u.s. 84 (2003), there is a two-step inquiry to determine a mechanism to obtain a money judgment, the bar can now order disciplined attorneys to pay the costs of their disciplin- counsel pleadings and in the record. section 6140.5 concerns client security forbidden by the ex post facto clause: (1) whether the intent states, practiced exclusively in the immigration and federal order was authorized by law before the 2003 amendments submitted december 7, 2007* supreme court of the united states. gadda, who was autho- ment of homeland security ("dhs"), dhs secretary michael filed december 27, 2007 impose punishment and (2) if so, whether it is "so punitive district court for northern district of california and the ment and to the bar's ability to collect disbarment costs from having found that the bar is seeking to apply section homeland security, michael chertoff, jennifer barnes, mir- he again fails to articulate any colorable argument with respect to them. his oversight by stating that he had intended to preserve those issues, but sections 6086.10 and 6140.5 of the business and professions ing to the statute, the purpose of the imposition of costs is to judge's decision to rule on the defendants' motions before by any amendment." polich v. burlington n., inc., 942 f.2d due process clause of the fourteenth amendment. retro- power to control their dockets." thompson v. hous. auth. of 1995). california supreme court adopted the review department's gadda already owed and is not retroactive in the constitu- a money judgment. cal. bus. & prof. code 6086.10(a). the 1

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