Merco Construction Engineers, Inc. v. Municipal Court

TOBRINER, J.

I dissent.

Although past decisions recognize this court’s ultimate policymaking role as to regulations affecting the “practice of law,” none of the judicial *734authorities relied upon by the majority supports its cavalier position in this case. Without any concrete showing that section 87 of the Code of Civil Procedure will impair the judicial system or harm the general public, the majority rejects this explicit enactment that corporations may be represented by nonattorney employees in municipal and justice courts.

In placing corporate entities on an equal footing with individuals, sole proprietorships and partnerships that have long enjoyed in propria persona rights, the Legislature articulated the increasing public concern with the growing expense of legal services and the need to insure continued access to courts in controversies of less than major financial proportions. Failing to address the serious problem to which this legislation is directed, the majority invalidates the statutory enactment by simply speculating as to the abuses that the presence of nonattorneys in court may engender. In my view, such speculation fails to serve as a basis for invalidating the enactment, even as to a matter in which the judiciary shares policy making authority with the Legislature. Unless and until such a legislatively prescribed procedure demonstrably interferes with the administration of justice, I believe that the judiciary should grant to the instant modest legislative innovation the opportunity to prove itself in operation.

In invalidating section 87, the majority relies heavily on decisions from California and other jurisdictions embracing the common law rule that corporations must be represented by attorneys in courts of record. (See, e.g., Paradise v. Nowlin (1948) 86 Cal.App.2d 897 [195 P.2d 867].) All of the decisions, however, represent judicial declarations of the rights of corporations in the absence of a specific statutory authorization of in propria persona representation. The majority fails to cite a single decision in which a court has invalidated a statute, such as section 87, expressly permitting a corporation to be represented by a nonattomey employee.

Indeed, the Court of Appeal opinion in Prudential Insurance Co. v. Small Claims Court (1946) 76 Cal.App.2d 379 [173 P.2d 38, 167 A.L.R. 820], directly refutes the majority’s conclusion that the Legislature lacks authority to grant in propria persona rights to corporations. In the Prudential Insurance case, Justice Peters (then on the Court of Appeal) initially recognized the “general rule that a corporation in the absence of statutory authority, even in its own behalf, cannot practice law.” (Italics added.) (76 Cal.App.2d at p. 386.) Justice Peters went on to point out, however, that none of the earlier decisions establishing the “general rule” “dealt with a statutoiy situation such as is here involved. Here we have a *735statute, section 117g [now § 117.4], that expressly confers on corporations, as well as on other persons, the right to prosecute or defend .... Thus here, unlike the above cases [articulating the common law rule], there is express statutory authorization for a corporation to appear in propria persona through some proper representative other than an attorney. This serves to distinguish all of the cited cases.” (Id.)

The majority suggests that the holding in Prudential was a necessary exception to the general rule prohibiting in propria persona representation by corporations: since section 117g provided that no attorney could represent a party in small claims court, “a corporation, although it could be sued in small claims, could not defend because [under a literal construction of that statute] it was incapable of defending through a natural person . . . .” (Ante, p. 731.) The majority contends these “special circumstances” which justified in propria persona representation in small claims proceedings do not exist in municipal court. This analysis fails to acknowledge the underlying public policy on which the holding in Prudential was expressly based, and does not explain why that policy should not be applied with respect to municipal and justice court disputes as well as small claims.

The policies underlying both section 117g and the legislation at issue here are largely the same: Individuals have long been entitled to appear in propria persona because in many minor disputes the relatively small amount in controversy renders representation by counsel infeasible. A rule requiring representation by counsel in such disputes could well deny a potential litigant his right to judicial resolution of the dispute. As was aptly expressed by Justice Peters in Prudential: “Justice should not be a rich man’s luxury. The Magna Carta guaranteed that justice would not be denied or delayed. Ever since 1215 those interested in the administration of justice have struggled somewhat unsuccessfully to live up to that promise so far as the poor litigant is concerned. The delay and expense incident to litigation have long discouraged the attempts of the poor litigant to secure redress for claims meritorious but small in amount. These cases are relatively of as great importance to those litigants as those heard in our highest courts, but the expense of employing an attorney and paying normal court costs is more than the cause will bear. . . .” (76 Cal.App. at p. 383.)

Without question minor claims frequently arise in municipal and justice court in which the “cost of employing counsel is more than the cause will bear.” In enacting section 87 the Legislature simply recognized *736that corporate entities, as well as individuals, are often engaged in such minor disputes and should be entitled as much as individuals to an economical adjudication of their rights. Just as it properly authorized in propria persona representation by corporations in small claims court, I believe that the Legislature acted within its powers to determine public policy by permitting corporate appearances in propria persona in municipal courts.

The majority emphasizes that municipal courts, unlike small claims courts, are courts of record in which “formal rules of procedure and evidence are to be observed by representatives of the parties, and the court is entitled to expect to be aided in the resolution of the issues by presentation of the cause through qualified professionals rather than a lay person.” (Ante, p. 732.) While we recognize the courts’ interest in assistance of counsel and maximum procedural efficiency, we doubt the majority’s conclusion that corporations appearing in propria persona will unduly handicap a court of record. Individuals have long been permitted to proceed in propria persona; the legal system has not been left in shambles. In the absence of any showing, we cannot see how corporate in propria persona representation will have a more deleterious judicial effect.

The majority further suggests that section 87 dangerously opens the door for a “cadre of unprofessional practitioners” ethically unrestrained from abusing the judicial system and from taking unfair advantage of individual litigants, especially in debt collection matters. The majority engages in speculation in assuming, however, that corporations that appear in propria persona will cause greater injuiy than individual proprietors or partnerships that do so. The abstract distinction between sole proprietorships and partnerships, which ostensibly constitute “natural” persons, and corporations, which constitute “artificial” persons, has little bearing on the practical effect of nonattorney representation.

Both the nonattomey who represents his own business or his partnership, and the nonattorney who represents his corporate employer perform exactly the same functions both in and out of court. The majority fails to explain why the Legislature could not reasonably conclude that the latter class of corporate employees posed no greater danger to the public and the judicial system than the former class. In the past, trial courts have proven quite capable of handling any abuse of in propria persona privileges that may arise in the course of actual litigation; the majority *737does not suggest why the trial court’s broad authority over the conduct of litigation cannot adequately protect the public in the context of corporate pro. per. representation.

Of course, if the provisions of section 87 do in fact prove to create a significant danger to the public or to the administration of justice, our court retains the authority to invalidate the enactment under the “separation of powers” doctrine. In striking down the statute in the absence of any such showing, however, I believe the majority has acted prematurely and without due consideration of the important public policies reflected in the legislation. In my view, we should not hamper the Legislature’s efforts to facilitate more procurable, accessible and equal justice and should allow this innovative legislation an opportunity to prove itself in actual operation.

Bird, C. J., concurred.