Florida Supreme Court Erroneously Concedes Constitutional Authority to Regulate the Bar in Godinez-Samperio

INGA IVSAN—In Florida Bd. of Bar Examiners re Question as to Whether Undocumented Immigrants are Eligible for Admission to the Fla. Bar(“Godinez-Samperio”), the Supreme Court of Florida was asked whether an undocumented immigrant was eligible for admission to the Florida Bar. Concluding that a 1996 federal law prevented the State from doing so absent passage of enabling legislation by the Florida legislature, the Florida Supreme Court conceded its authority over bar licensing matters to the Florida legislature. Shortly thereafter the legislature passed enabling legislation.

This article is not intended to address whether undocumented immigrants may become licensed attorneys in Florida. Rather, this article highlights a tremendous error committed by the Florida Supreme Court. The Court failed to consider the constitutionality of the 1996 federal law.

A more recent New York ruling criticized Florida’s approach, finding that the 1996 Federal law is unconstitutional as applied to the regulation of lawyers in that state. The Florida Bar has a duty to revisit this issue with the Florida Supreme Court and allow the Court to correct its error.

Federal Law on Licensing Aliens

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“PRWORA”), 8 U.S.C. §§ 1621 et seq., restricts states from conferring certain public benefits—including “professional licenses”—upon aliens. Under 8 U.S.C. § 1621(d), a state may opt out of the restrictions of PRWORA by enacting legislation to this effect after August 22, 1996.

In Godinez-Samperio, the Florida Supreme Court acknowledged that law licenses are subject to PRWORA by citing 8 U.S.C. § 1621(c)(1)(A). The Court also determined that, to the extent attorney admissions are financed by “appropriated funds” of the state, PRWORA may prohibit law licenses as a “benefit” to aliens.

At no time did the Court consider the constitutional ramifications of PRWORA. Rather, the Florida Supreme Court summarily concluded that the plain language of PRWORA requires the “enactment of a State law” to permit law licenses for aliens.

Florida Law on Regulation of the Bar

The Florida Constitution creates three “co-equal” branches of government in the State of Florida: the legislature (Article III), the executive (Article IV), and the judiciary (Article V). Article V, Section 1, of the Florida Constitution provides that judicial power “shall be vested in a supreme court, district courts of appeal, circuit courts and county courts.” Article V, Section 15, further specifies that:

The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.

Prior to 2014, Florida Statute § 454.021 simply acknowledged that “[a]dmissions of attorneys and counselors to practice law in the state is hereby declared to be a judicial function.” The statute further acknowledged that the Supreme Court of Florida “is the proper court to govern and regulate admissions of attorneys and counselors to practice law in said state.”

In response to Godinez-Samperio, the Florida Legislature amended Fla. Stat. § 454.021. A new paragraph (3) authorizes the Supreme Court to admit certain undocumented immigrants who were brought to the United States as minors, provided, inter alia, the applicant fulfills the requirements for the practice of law.

New York Court of Appeals: PRWORA Unconstitutional vis-à-vis Bar Regulation

In In re Vargas, the New York Court of Appeals took a different approach when confronted with the same issue. Observing that PRWORA does not ban alien benefits altogether but simply imposes a mechanism for authorizing them, the New York Court of Appeals instead examined the opt-out mechanism of PRWORA, casting a critical eye towards the Florida Supreme Court’s approach.

The New York court pointed out that the opt-out mechanism in PRWORA requires an act of a state legislature, in direct conflict with New York’s bar eligibility and admission structure. Under New York law, “authority over bar eligibility and the admission process rests neither with the executive nor the legislative branch of government . . . but with the coequal judiciary.”

Diverging from the approach taken by the Florida Supreme Court, the New York court ruled that the processes by which a state chooses to exercise authority granted by federal legislation is not a legitimate concern of the federal government. Finding “[t]he ability, indeed the right, of the states to structure their governmental decision-making processes as they see fit” as “essential to the sovereignty protected by the Tenth Amendment,” the appeals court concluded that PRWORA’s opt-out mechanism was unconstitutional as applied to attorney admissions. Further, it found:

The Tenth Amendment is implicated here because although Congress has left the ultimate determination whether to extend public benefits, including professional licensure, to the states, it has, at the same time, prescribed the mechanism by which the states may exercise that authority. Where, as here, New York, by its own legislative enactment, has determined that the state judiciary is the sovereign authority vested with the responsibility for formulating the eligibility qualifications and processes governing the admission of attorneys and counselors to the practice of law, that limitation cannot withstand scrutiny under the Tenth Amendment * * *.

The New York court cited Gregory v. Ashcroft, where the U.S. Supreme Court rejected a challenge under Federal age discrimination law to a Missouri law mandating the retirement age of state court judges.

The Vargas court held that the opt-out mechanism of PRWORA, to the limited extent that it governs the admission of attorneys as professional licensees, may be lawfully exercised by the judiciary. The Florida Supreme Court would be well advised to reclaim its authority to regulate the Bar and follow a similar approach.

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