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In 1989, the Legislature enacted section 6070, which prompted the

creation of the State Bar’s mandatory continuing legal education program.

(Hoffman v. State Bar of California (2003) 113 Cal.App.4th 630, 636; § 6070,

subd. (a); Cal. Rules of Court, rule 9.31.) The legislation is intended to



1 Undesignated statutory references are to the Business and

Professions Code.

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protect consumers by enhancing the competency of California’s attorneys.

(Warden v. State Bar (1999) 21 Cal.4th 628, 634.) It establishes minimum

requirements for the continuing education program. (§ 6070, subd. (a).)

Subdivision (c) of the statute exempts certain groups of attorneys, including

“[f]ull-time employees of the State of California, acting within the scope of

their employment.” (§ 6070, subd. (c).)

B.

When the State Bar first implemented the continuing education

program in 1992, two State Bar employees informally concluded attorneys

employed by the superior court are not “employees of the State of California”

and thus not exempt under section 6070, subdivision (c). This conclusion was

never reduced to writing or approved by executives at the State Bar.

Obbard is a member of the State Bar and a fulltime research attorney

at the superior court in Alameda County. In late 2016 and early 2017, when

Obbard was due to report his continuing education compliance, he sent

letters to the State Bar, asserting his position that he is exempt from the

requirement by virtue of his employment with the superior court. The State

Bar rejected his position, contending that he is employed by the superior

court, not by the State of California. The State Bar conceded that superior

courts are funded by the state but reasoned Obbard is not a state employee

because his paychecks are issued by the superior court (rather than the State

Controller) and he is “covered by different labor rules and collective

bargaining agreements than those of State Employees.”

But the State Bar has been inconsistent on this point. In continuing

education audits of other superior court research attorneys, the State Bar

accepted the attorneys’ position that they are exempt as state employees

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under section 6070, subdivision (c). The State Bar now characterizes these

decisions as mistakes.

C.

Obbard filed a petition for writ of mandate (Code Civ. Proc., § 1085)

and a complaint for declaratory relief (id., § 1060), asking the trial court to

decide whether superior court attorneys are “employees of the State of

California” as used in section 6070, subdivision (c).

The trial court granted Obbard’s petition. The trial court explained,

“Both [Obbard] and the State Bar proffer reasonable, albeit wholly

inconsistent, interpretations [of the exemption] that are at least arguably

supported by the history and structure of the employment status of California

trial court attorneys. . . . [¶] The decisive factor in choosing between the two

interpretations is that the State Bar’s interpretation . . . presents a serious

equal protection problem because there is no rational basis why California

trial court attorneys should be required to comply with the State Bar

[continuing education] program when attorneys employed by the California

Supreme Court, California Courts of Appeal and California Judicial Council

are exempt.” To avoid an equal protection conflict, the trial court adopted

Obbard’s interpretation.

The trial court entered judgment in Obbard’s favor, ordering the State

Bar to “cease requiring that attorneys employed full-time by a superior court

of the State of California comply with the State Bar’s mandatory continuing

legal educational program established pursuant to . . . section 6070(a).”

DISCUSSION

The State Bar contends the trial court erred in construing “employees

of the State of California,” as used in section 6070, subdivision (c), to include

employees of the superior courts. We disagree.

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A.

We independently review the trial court’s interpretation of a statute

(Alameda County Management Employees Assn. v. Superior Court (2011) 195

Cal.App.4th 325, 339, applying the familiar rules of statutory interpretation.

(Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 624, 630.)

B.

The issue here is simple. Section 6070 exempts “employees of the State

of California” from the State Bar’s mandatory continuing education

requirements but does not define that phrase. (§ 6070, subd. (c).) When a

statute refers to “employees” without defining the term, “courts have

generally applied the common law test of employment.” (Metropolitan Water

Dist. v. Superior Court (2004) 32 Cal.4th 491, 500.) The principal common

law test of an employment relationship is whether the employer has the right

to supervise and control the work and to discharge the worker. (Ayala v.

Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 531.) Thus, the

question is whether the State of California supervises and controls the work

of superior court research attorneys. It does.

The presiding judge of each superior court is a state officer (Cal. Const.,

art. VI, § 16), who controls the hiring, firing, and supervision of superior

court employees, or delegates those duties to the court’s executive officer.

(Cal. Rules of Court, rules 10.603(c)(5), 10.610(a) and (c)(1).) The superior

court is part of the state judicial branch (Cal. Const., art. VI, §§ 1 and 4),

administered by the state Judicial Council (id., § 6), and funded through the

state budget process. (See Gov. Code, § 68502.5.) Obbard’s salary is part of

the superior court’s operations costs, for which the state is responsible. (Gov.

Code, §§ 77200, 77003, subd. (a)(2).) Obbard is indeed a state employee.

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This interpretation is consistent with the rationale for the state

employee exemption from the mandatory continuing legal education program.

The continuing education requirement is intended to protect consumers, i.e.,

attorneys’ clients. (Warden v. State Bar, supra, 21 Cal.4th at pp. 645-646.)

The exemption applies to categories of attorneys that generally do not

represent clients (ibid.), which, as the trial court noted, applies equally to

research attorneys for the Supreme Court, the courts of appeal, and the

superior court.2

C.

The State Bar is determined to make the issue more complicated than

necessary. None of its arguments has merit.

1.

The State Bar concedes that Obbard is a superior court employee but

argues he is not a state employee. To prove this, the State Bar offers a fivefactor test: state employees are (1) paid directly by the State Controller; (2)

subject to hire, supervision, discipline, or discharge by the State of California;

(3) subject to state civil service rules; (4) subject to the Ralph C. Dills Act

(Gov. Code, §§ 3512-3524) for collective bargaining; and (5) required to

participate in the California Public Employees Retirement System.

We need not address these factors for two reasons. First, nothing about

the phrase “employees of the State of California” in section 6070 suggests

that it is narrowly limited in this manner. We give the words their ordinary,

commonsense meaning. (Riverside County Sheriff’s Dept. v. Stiglitz, supra,



2 Our decision does not mean that superior court research attorneys

are no longer required to participate in a continuing legal education program.

As Obbard concedes, they remain subject to the judicial branch’s mandatory

continuing education program. (Cal. Rules of Court, rules 10.452, 10.474,

10.479.)

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60 Cal.4th at p. 630.) Second, the State Bar points to no authority requiring

all state employees to meet any of these factors, much less all of them. In

fact, the State Bar concedes that the factors do not apply to all state

employees.

The state is entitled to create different processes and rules for

employee paychecks, benefits, and collective bargaining for different groups

of its own employees. (See, e.g., Cal. Const., Art. VII, § 4, subd. (b)

[exempting judicial branch employees from civil service rules]; Gov. Code, §

3513 [excluding numerous groups of employees from definition of “state

employee” for purposes of collective bargaining]; id., § 3524 et seq. [collective

bargaining for Judicial Council employees]; id., § 71630-71639.3 [collective

bargaining for trial court employees].) These are simply policy decisions that

the state has made over time to manage its sprawling workforce. Such policy

decisions have no bearing on the scope of the continuing education exemption

before us.

Obbard is a superior court employee and a state employee. This poses

no contradiction. All state employees work for specific agencies,

departments, boards, courts, or other units of state government.

2.

Like the trial court, we decline to defer to the State Bar’s interpretation

of section 6070. The proper definition of “employee[] of the State of

California” is not a technical issue within the State Bar’s area of expertise.

(See Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th

1, 12; § 6001.1 [State Bar has “licensing, regulatory, and disciplinary

functions”].) Nor has the State Bar demonstrated it adopted the

interpretation after careful consideration by senior State Bar officials. (See

Heckart v. A-1 Self Storage, Inc. (2018) 4 Cal.5th 749, 769, fn. 9.) Finally, the

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record suggests the State Bar has applied the interpretation inconsistently by

granting continuing education exemptions to other research attorneys

employed by the superior court. (Yamaha, supra, 19 Cal.4th at p. 13 [“ ‘[A]

vacillating position . . . is entitled to no deference.’ ”].)

3.

The State Bar contends we must narrowly construe “employees of the

State of California” to exclude employees of the superior courts because the

Legislature rejected language proposing to exempt “full-time employees of the

State of California, or of any political subdivision thereof[.]” (Sen. Bill No.

905 (1989-1990 Reg. Sess.) as amended June 1, 1989 and August 30, 1989,

italics added; § 6070, subd. (c).) The argument fails because superior courts

are not, and never were, political subdivisions. (See Cal. Const., art. VI, §§ 1,

4.)

4.

Finally, we reject the State Bar’s contention that the Legislature

created a special employment status for trial court employees, 11 years after

enacting section 6070, that excludes them from the exemption for state

employees in section 6070, subsection (c).

Some background is helpful. In 1997, the Legislature enacted the

Lockyer-Isenberg Trial Court Funding Act (Assem. Bill No. 233 (1997-1998

Reg. Sess.), added by Stats. 1997, ch. 850, §§ 1, 46, pp. 5968-6021), which was

intended to “transfer all fiscal responsibility for the support of the trial courts

from the counties to the State of California.” (Gov. Code, § 77212, subd. (a);

accord, id., § 77200.)

Similar legislation had failed the year before due to disagreements over

how to handle personnel issues such as collective bargaining. (Trial Court

Funding Workgroup, Report to the Judicial Council of California and

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Governor Edmund G. Brown, Jr. (2013) pp. 6, 14.) It was a complicated

problem because each superior court in the state’s 58 counties had different

employee classification systems, salary structures, retirement systems, and

other arrangements. (Task Force on Trial Court Employees, Final Report

(Dec. 1999) § I, p. 8 (Final Report).) The 1997 legislation finessed the issue

by creating a task force to recommend “an appropriate system of employment

and governance for trial court employees.” (Gov. Code, § 77600.) (Trial Court

Funding Workgroup, Report to the Judicial Council of California and

Governor Edmund G. Brown, Jr. (2013) p. 14.) Among other assignments,

the task force was instructed to examine issues “relating to the establishment

of a local personnel structure for trial court employees under (1) court

employment, (2) county employment . . . , (3) state employment . . . , or (4)

other options identified by the task force.” (Gov. Code, § 77603, subd. (g).)

The task force report explains that, under each of the options, the trial

court would have the authority to hire and fire employees, lead collective

bargaining, and have final authority over employee benefits. (Final Report,

supra, at § IV, p. 23.) Under the “state employment” option, the employees

would be employed by the judicial branch rather than the trial court, and

thus the judicial branch’s statewide personnel rules would apply, and it

would be more involved in collective bargaining and benefits. (Final Report,

supra, at § IV, p. 23.) The task force settled on option 1—court

employment—and developed recommendations for employee salaries,

collective bargaining, benefits, personnel files, and other issues. (Final

Report, supra, at pp. 1-2.)

Following the task force’s report, the Legislature enacted the Trial

Court Employment Protection and Governance Act (Stats. 2000, ch. 1010,

Sec. 14; Gov. Code, § 71600 et seq.), which, consistent with the task force

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recommendations, adopted a decentralized approach to employment issues,

essentially placing responsibility for personnel issues with each of the trial

courts. (Trial Court Funding Workgroup, Report to the Judicial Council of

California and Governor Edmund G. Brown, Jr. (2013) p. 14.) It defines a

“trial court employee” as a person who is paid from the trial court’s budget

and is subject to the trial court’s authority to control, hire, supervise,

discipline, and terminate employment. (Gov. Code, § 71601, subd. (l).)

Relying on this legislation and the task force report, the State Bar

argues the Legislature created a classification for trial court employees that

excludes them from state employment for purposes of the continuing

education exemption in section 6070, subdivision (c). The Legislature did no

such thing. The legislation and task force report relate solely to employee

personnel issues managed by the trial courts, and they were intended to

implement a decentralized personnel system tailored to address the unique

problems of transitioning the superior courts to full state funding. (Gov.

Code, § 71600 et seq.) The State Bar’s argument hinges on a statutory

definition of “trial court employee” that is explicitly limited to the chapter in

which it appears (Gov. Code, § 71601, subd. (l) [“For purposes of this chapter

. . . .”]). Nothing suggests the Legislature intended to exclude trial court

employees from the continuing legal education exemption in section 6070,

subdivision (c).

We need not address the parties’ remaining arguments.3



3 Obbard asked us to take judicial notice of a Judicial Council report

regarding judicial branch education and other judicial branch job

descriptions. We deferred ruling on the unopposed request and now deny it

because the documents Obbard asks us to notice are irrelevant. (See

Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135, fn. 1.)

The judgment is affirmed. The State Bar shall bear Obbard’s costs on appeal.