California Advisory Opinions January 18, 1982: Ca. Att. Gen Opinion 81-1202

Advisory Opinion Text

TO BE PUBLISHED IN THE OFFICIAL REPORTS

GEORGE DEUKMEJIAN Attorney General

OPINION
of
GEORGE DEUKMEJIAN Attorney General
Jack R. Winkler Assistant Attorney General

THE CALIFORNIA STATE BOARD OF ARCHITECTURAL EXAMINERS has requested an opinion on the following question:

Does the second paragraph of rule 122(b)(1) of the Board of Architectural Examiners violate the constitutional requirement for equal protection of the laws?

The second paragraph of rule 122(b)(1) of the Board of Architectural Examiners does not violate the constitutional requirement for equal protection of the laws.

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The licensing of architects in California is governed by chapter 3, division 3 (§ 5500 et seq.) of the Business and Professions Code. Section 5550 provides:

"Subject to the rules and regulations governing examinations, any person who meets the qualifications set froth in this article shall be entitled to an examination for a certificate to practice architecture. Before taking the examination he shall file his application therefor with the secretary and pay the application fee fixed by this chapter. The fee shall be retained by the board."

Section 5510 provides:

"There is in the Department of Consumer affairs a California State Board of Architectural Examiners which consists of nine members appointed by the Governor."

Section 5526 provides:

"The board shall formulate and adopt a code of rules and regulations for its government in the examination of applicants for certificates to practice architecture in this state. The board may formulate and adopt such other rules and regulations as may be necessary and proper. No rule or regulation shall be inconsistent with this chapter. The board may, from time to time, repeal, amend, or modify its rules and regulations.

"The adoption, repeal, amendment, or modification of such rules and regulations shall be made in accordance with the provisions of the Administration Procedure Act."

The rules and regulations of the State Board of Architectural Examiners (the Board) are set forth in title 16 of the California Administrative Code, sections 100 through 151 (referred to herein as Rules). The examination process for architects in California consists of a written qualifying test (composed of a graphic design section and four other sections), a written professional examination and an oral examination. (See Rule 121.) We understand the qualifying test is given once each year in June and that the written professional examination is given once each year in December. The oral examination is given twice each year in April and September to those who have successfully passed both

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written parts of the examination. A candidate must either have a degree from an accredited school of architecture which takes five academic years or complete 60 accredited months of architectural training and experience in an architect's office to be eligible to take the qualifying test. (Rule 116(a).) Graduating seniors of accredited schools may take the June qualifying test immediately following their graduation. To be eligible to take the professional examination a candidate must have completed seven and one-half years of schooling and experience. (Rule 116(b).) Thus a graduation senior who passes the qualifying test in June following graduation must work at least two and one-half years in the office of an architect to qualify for the written professional examination. If he passes that examination the candidate would be eligible to take the oral examination the following April. Once a candidate successfully passes the qualifying test, or any section thereof, or the professional examination he need not take that test or section again. The candidate may take the professional examination once he has the requisite seven and one-half years of schooling and experience even though he has not yet passes the qualifying test or some section thereof. Thus if the candidate passes his qualifying test after he had passed the professional examination he would be eligible to take the oral examination the following September.

The question presented concerns recent amendments to Rule 122(b) regarding the qualifying test. Rule 122(b) currently provides as follows:

"(b) (1) Upon application and the establishment of eligibility for examination, all sections comprising the Qualifying test or the equivalent thereof in accordance with the program of transition adopted by the board shall be taken and passed.

"It is provided, however, that those applicants who, on or before March 1980, had unsuccessfully attempted and were only required to complete the graphic design section of the Qualifying test shall have until June 30, 1982 to pass the graphic design section or the equivalent thereof in order to receive credit for the Qualifying test.

"(2) Candidates taking the Qualifying test shall receive examination credit separately for each section passed and transitional candidates shall retain the credit for sections of the Qualifying test which was granted at the time of transition."

Before its amendment in 1970, Rule 122(b)(1) provided:

"Candidates having an accredited degree in architecture from a school of architecture accredited by the National Architectural Accrediting Board

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shall be required to take and pass only the graphic section of the Qualifying test prior to being considered for eligibility for the Professional examination."

(Register 78, No. 50, 12-16-78.)

On July 16, 1979, an amendment to Rule 122(b)(1) was filed and designated to be effective March 1, 1981. This amendment to Rule 122(b)(1) provided:

"Upon application and the establishment of eligibility for examination, all sections comprising the Qualifying test shall be taken and passed." (Register 79, No. 29.)

On March 25, 1981, another amendment was filed and became effective 30 days thereafter to make Rule 122(b)(1) read as it currently provides by adding a proviso in a second paragraph. (See the current Rule 122 quoted in full above.) The second paragraph of Rule 122(b)(1) added in 1981 will be referred to herein as "the 1981 proviso."

Since the 1979 amendment to Rule 122(b)(1) was not made effective until March 1, 1981, its new requirement that candidates take and pass all sections of the qualifying test without exception could only apply to candidates taking the test in June 1981 and thereafter. The applications for the June 1981 qualifying test had to be filed on or before March 1, 1981 (Rule 109) so the new requirement applied to all of the candidates who filed for the June 1981 qualifying test. However, on March 25, 1981, the Board changed the new requirement by adopting the 1981 proviso, effective April 24, 1981, which created an exception to the new rule that all candidates must take and pass all sections of the qualifying test. Those applicants who "on or before March 1980, had unsuccessfully attempted and were only required to complete the graphic design section of the Qualifying test" (referred to herein as "the 1981 proviso applicants") were given "until June 30, 1982 to pass the graphic design section or the equivalent thereof in order to receive credit for the qualifying test" by the express provision of the 1981 proviso.

We assume some of the 1981 proviso applicants failed to pass the graphic design section of the June 1981 qualifying test and will apply to take the June 1982 qualifying test. We also assume that other candidates who took and failed the 1981 qualifying test will be candidates for the June 1982 test. It is apparent that those who took and failed the June 1981 qualifying test who will be candidates for the June 1982 qualifying test are divided into two classes, those who must take all sections of the test and those who need take only the graphic design section l. This classification is the result of the 1981 proviso's applicability to only those who took the qualifying test before March 1980. Such classification requires us to examine whether the 1981 proviso comports with the equal

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protection of the laws requirements of the Fourteenth Amendment of the United States Constitution and of article 1, section 7, of the California Constitution.

We must first determine what test to use to resolve the classification question under the equal protection clause.

"There are two such tests which are applied by the courts of this state and the United States Supreme Court. The first is the basic and conventional standard for reviewing economic and social welfare legislation in which there is a 'discrimination' or differentiation of treatment between classes or individuals. It manifests restraint by the judiciary in relation to the discretionary act of a co-equal branch of government; in so doing it invests legislation involving such differentiated treatment with a presumption of constitutionality and 'requir[es] merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legislative state purpose.' [Citation.] 'So long as such classification "does not permit one to exercise the privilege while refusing it to another of like qualifications, under like conditions and circumstance, it is unobjectionable upon this ground." [Citations.] Moreover, the burden of demonstrating the invalidity of a classification under this standard rests squarely upon the party who assails it .' [Citations.] A more stringent test is applied, however, in cases involving 'suspect classifications' or touching on 'fundamental interests.' Here the courts adopt 'an attitude of active and critical analysis, subjecting the classification to strict scrutiny. [Citations.] Under the strict standard applied in such cases, the state bears the burden of establishing not only that it was a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.' [Citation.]" ( D'Amico v. board of Medical Examiners (1974) 11 Cal.3d 1, 16-17.)

In the D'Amico case the court considered an equal protection challenge to the licensing of physicians by the Board of Osteopathic Examiners. The court said (at p. 17):

"The conventional 'rational relationship' test is traditionally applied in cases involving occupational licensing, including those concerning the practice of the healing arts. [Citations.] Nevertheless, in certain cases involving occupational regulation the more stringent 'strict scrutiny' test has been employed. [Citations.] Those cases, however, have invariably involved a classification drawn along lines which rendered it 'suspect' in constitutional

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terms—such as national origin or alienage [citation] or sex [citation]. In the instant case, on the other hand, the statutory classification is based upon the type of medical degree possessed by those who would be licensed as physicians and surgeons—which in turn depends upon the type and content of education manifested by the conferral of such degrees. Nor can it be said that the instant case touches upon 'fundamental interests' as that term has lately been defined by the United States Supreme Court, for the right to be admitted to a certain profession is not a right 'explicitly or implicitly guaranteed by the Constitution.' ( San Antonio School District v. Rodriguez (1973) 411 U.S. 1, 33-34.)"

In City of New Orleans v. Dukes (1976) 427 U.S. 297 a city ordinance prohibiting all pushcart vendors except those who had been in business eight years or more was challenged on equal protection grounds. It was suggested the "grandfather provision" was totally arbitrary. The court held that the city could constitutionally take a gradual approach to the problem and eliminate vendors of more recent vintage rather than abolishing all vendors. Quoting from a prior case the court stated the governing constitutional principle as follows:

"[W]e are guided by the familiar principles that a 'statute is not invalid under the Constitution because it might have gone farther than it did,' Roschen v. Ward , 279 U.S. 337, 339, 49 S.Ct. 336, 73 L.Ed. 722, that a legislature need not 'strike at all evils at the same time,' Semler v. Dental Examiners , 294 U.S. 608, 610, 55 S.Ct. 570, 571, 79 L.Ed. 1086, and that 'reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,' Williamson v. Lee Optical Co ., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563.)

In People v. Western Fruit Growers (1943) 22 Cal.2d 494, 508 the court stated:

"The Legislature, in adopting a policy, may adapt legislation to an existing situation. It is upon this basis that the exemption of existing structures from zoning ordinances has been held valid [citations], and regulations governing the construction and occupation of certain types of existing buildings different from those required for structures to be erected have been upheld [citation]. For the same reason, courts have sustained the grant of a preferred position to prior applicants for certificates of convenience and necessity to operate motor vehicles over a given route. [Citations.] Similarly, laws amending vocational and professional standards may provide for the continuance of licenses issued prior to the amendment. ( Ex parte

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Whitley , 144 Cal. 167, 171.; Bohannon v. Board of Medical Examiners , 24 Cal.App. 215 . . . .)"

(See also Hunter v. Justice's Court (1950) 36 Cal.2d 315, 321; Witkin, Summary of California Law (8th ed.) vol. 5, § 408.)

The 1979 amendment to Rule 122(b)(1) was not made effective until March 1, 1981, so its new requirement that candidates take and pass all sections of the qualifying test without exception could apply only to candidates taking the test in June 1981 and thereafter. Its promulgation in June 1979 gave prospective applicants nearly two years advance notice of the new testing requirement.

The 1981 proviso authorizes a limited exception to the new rule. Those candidates who (1) took and failed the test before 1980 and (2) who were only required to take the graphic design section then, i.e., those who had a degree from an accredited school, were given two more opportunities to pass the qualifying test by passing the graphic design section only. The exception applies only to graduates of accredited schools and only to those who graduated before the new testing requirement was promulgated in July 1979. Those who graduated from an accredited school in 1980 could have taken the June 1980 test (taking only the graphic design section since the new requirement was not made effective until 1981). However, during their last year of school they and their school would have been aware of the new testing requirement and their course of training could have been changed to prepare them for the new test requirements. This opportunity serves to distinguish the 1980 graduates from those who graduated in 1979 or before, to whom the 1981 proviso is applicable, and provides a rational basis for the classification created by that proviso.

When a legislative classification is questioned, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of existence of that state of facts, and the burden of showing arbitrary action rests upon the one who assails the classification. ( People v. Western Fruit Growers , supra , 22 Cal.2d at p. 507.) As the court observed in City of New Orleans v. Dukes , supra , 427 U.S. 297, legislatures may implement their program step by step and the judiciary may not sit as a super legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.

We conclude that there is a rational basis for the distinctions created by the 1981 proviso which satisfies the constitutional requirement of equal protection of the laws.