Ernest Franceschi, Jr. v. John Chiang, et al
FILED OPINION (MICHAEL DALY HAWKINS, BARRINGTON D. PARKER, JR. and SANDRA S. IKUTA) We GRANT Franceschi s unopposed motions, filed February 24, 2015 and February 27, 2015, to take judicial notice of orders in other proceedings. See United States v. Navarro, 800 F.3d 1104, 1109 n.3 (9th Cir. 2015). We also GRANT Appellees unopposed motion, filed April 30, 2015, to take judicial notice of legislative history pertaining to Section 494.5. See Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012). AFFIRMED; Judge: BDP Authoring, FILED AND ENTERED JUDGMENT. 
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNEST JOSEPH FRANCESCHI, JR.,
Attorney, an individual,
BETTY T. YEE, President of
California Franchise Tax Board in
her Official Capacity; GEORGE
RUNNER, Board Member of
California Franchise Tax Board in
his Official Capacity; JEAN
SHIOMOTO, Director of California
Department of Motor Vehicles in her
Official Capacity; MICHAEL COHEN,
Board Member of California
Franchise Tax Board in his Official
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted November 15, 2017
Filed April 11, 2018
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FRANCESCHI V. YEE
Before: Michael Daly Hawkins, Barrington D. Parker,*
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Parker
The panel affirmed the district court’s judgment in an
action under 42 U.S.C. § 1983, challenging the
constitutionality of California Revenue and Tax Code
§ 19195 (which establishes a public list of the top 500
delinquent state taxpayers) and California Business and
Professions Code § 494.5 (which provides for suspension of
the driver’s license of anyone on the top 500 list). The district
court found the statutory scheme constitutional and dismissed
the action under Federal Rule of Civil Procedure 12(b)(6).
The panel first held that the taxpayer was not deprived of
procedural due process based on his contention that he had
an inadequate opportunity to be heard prior to license
revocation. The panel explained that California provides tax
delinquents with a constitutionally adequate procedure to
challenge the amount of their tax delinquency, either before
or after the deprivation of a driver’s license.
The Honorable Barrington D. Parker, United States Circuit Judge for
the U.S. Court of Appeals for the Second Circuit, sitting by designation.
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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FRANCESCHI V. YEE
The panel next held that the taxpayer was not deprived of
substantive due process based on his claims that the statutory
scheme impermissibly burdened taxpayer’s right to choose a
profession, and that the scheme is retroactive. The panel
observed that revocation of a driver’s license does not operate
as a complete prohibition on one’s ability to practice law.
The panel also explained that § 494.5 does not operate
retroactively because it does not sanction taxpayer for past
conduct, but for his current refusal to discharge his tax
The panel was unpersuaded by the taxpayer’s equal
protection claim, that the challenged statutes impermissibly
single out taxpayers who fall within the class of California’s
500 largest tax delinquents, resulting in unequal treatment of
similarly situated individuals. The panel found a rational
basis for state action against a citizen for failing to pay two
years’ worth of past-due taxes (as taxpayer had done), given
California’s legitimate and significant interest in the prompt
collection of tax revenue.
Finally, the panel rejected the taxpayer’s contention that
the combined effect of the challenged statutes is to single out
the largest 500 tax debtors for legislative punishment,
amounting to a bill of attainder. The panel explained that
membership in the group of taxpayers subject to suspension
turns on the continuing fact of nonpayment, which a
delinquent taxpayer can rectify.
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FRANCESCHI V. YEE
Ernest J. Franceschi Jr. (argued), Franceschi Law
Corporation, Los Angeles, California, pro se PlaintiffAppellant.
Matthew C. Heyn (argued), Deputy Attorney General;
Stephen Lew, Supervising Deputy Attorney General; Paul D.
Gifford, Senior Assistant Attorney General; Office of the
Attorney General, Los Angeles, California; for DefendantsAppellees.
PARKER, Circuit Judge:
This action challenges the constitutionality of Section
19195 of the California Revenue and Taxation Code and
Section 494.5 of the California Business and Professions
Code. Section 19195 establishes a public list of the top 500
delinquent state taxpayers who owe in excess of $100,000.
In turn, Section 494.5 provides for suspension of the driver’s
license of a taxpayer on the delinquent list until full payment
of the tax obligation is arranged.
Appellant Ernest J. Franceschi, Jr., Esq. is a major tax
delinquent. Anticipating the suspension of his driver’s
license after the publication of the next edition of the top 500
list—which would include him—Franceschi sued, under
42 U.S.C § 1983, challenging Sections 19195 and 494.5 on
various federal constitutional grounds. The District Court
rejected his claims and dismissed the complaint. See
Franceschi v. Chiang, No. 2:14-cv-01960-CAS-SH, 2014
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FRANCESCHI V. YEE
WL 12069866 (C.D. Cal. Aug. 4, 2014). Franceschi appeals
and we affirm.
Franceschi is an attorney who has been licensed to
practice law in California since 1984. Appellee Betty Yee is
the chairwoman of the California Franchise Tax Board (the
“FTB”); appellees George Runner and Michael Cohen are
members of the FTB; and appellee Jean Shiomoto is the
director of the California Department of Motor Vehicles.
Despite being a member of the bar for many years,
Franceschi failed to file any California state income tax
returns between 1995 and 2012 and failed to pay any state
income taxes, penalties, or interest for those years,
contending that he owed none. For each of those years, the
FTB gave written notice of proposed deficiency assessments
of taxes, interest and penalties (an “NPA”).
California’s Revenue and Taxation Code sets forth a
framework under which a delinquent taxpayer, like
Franceschi, has multiple opportunities to challenge deficiency
assessments. Cal. Rev. & Tax Code § 19031, et seq. At the
outset, the FTB is required to send the taxpayer notice of the
proposed deficiency assessment for any tax deficiency it
proposes to assess. Id. § 19033(a). The taxpayer may then
file a protest within sixty days. Id. § 19041(a). If the
taxpayer files a protest, the FTB must reconsider the
assessment and, if the taxpayer so requests, grant the taxpayer
a hearing on the deficiency. Id. § 19044(a). If the deficiency
is not resolved at this stage, a taxpayer has further recourse by
appealing to the State Board of Equalization. Id. § 19045.
After the State Board of Equalization rules on the matter, a
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FRANCESCHI V. YEE
still dissatisfied taxpayer can then petition the State Board of
Equalization for rehearing. Id. § 19048.
Still further, a taxpayer has an additional opportunity to
be heard on the validity of his or her tax delinquency by
paying the taxes and filing a claim for refund with the FTB.
Id. § 19382. Utilization of this procedure here would have
permitted Franceschi to both challenge the original
assessments and to retain his driver’s licence while doing so.
If the FTB denied the claim he could have sued for a refund
in California Superior Court. Franceschi concedes that he did
not avail himself of any of these multiple remedial
If, however, a taxpayer like Franceschi fails to protest the
NPA within sixty days, the proposed deficiency assessment
becomes final. Id. § 19042. Once the assessment becomes
final, the FTB can demand payment and the amount owed
becomes a lien on the taxpayer’s real property in California.
Id. §§ 19049, 19221.
The FTB compiles a list of the top 500 tax delinquents in
the state (the “Top 500 List”). Id. § 19195(a). Specifically,
Section 19195 directs the FTB to “make available as a matter
of public record at least twice each calendar year a list of the
500 largest tax delinquencies in excess of one hundred
thousand dollars ($100,000)[.]”1 Id. Prior to placing a
delinquent taxpayer on the Top 500 List, the FTB is required
to provide thirty days’ notice to the taxpayer. Id. § 19195(d).
The Top 500 List includes the taxpayer’s name and address, the
amount of tax delinquency, the taxpayer’s occupation, and the type, status,
and license number of any occupational or professional license held by the
tax delinquent. Id. § 19195(c).
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If within thirty days after this notice, the delinquent taxpayer
does not remit the amount due or make arrangements with the
FTB for payment, the delinquent taxpayer is named on the
Top 500 List. Id.
Important for this appeal, effective January 1, 2012,
Section 494.5 was enacted to provide that a state
governmental licensing entity “shall suspend” a license if a
licensee’s name is included on the Top 500 List.2 Cal. Bus.
& Prof. Code § 494.5(a)(1). Specifically, Section 494.5
provides that, on at least ninety days’ notice, the California
Department of Motor Vehicles “shall suspend” the driver’s
license of any licensee whose name is included on the Top
500 List. Id. § 494.5(a)(2), (b)(1), (f)(1).3 Within this notice
period, a delinquent taxpayer can challenge inclusion and
seek to avoid revocation of a driver’s license by
(1) presenting a written submission that the tax delinquency
was paid, (2) entering into a payment agreement, or
(3) demonstrating financial hardship. Id. § 494.5(h).
Franceschi’s cumulative tax deficit encompasses the years
1995 through 2012. After the enactment of Section 494.5 in
2012, the FTB, in April 2012, March 2013, and March 2014,
served him with NPAs for the years 2010 through 2012.
Franceschi then had sixty days to protest these additional
proposed deficiencies. He took no steps to do so.
Section 494.5 was originally passed in 2012 but was amended in
2013, in a manner not relevant here.
Furthermore, the State Bar of California “may recommend to refuse
to issue, reactivate, reinstate, or renew a license and may recommend to
suspend a license if a licensee’s name” is included on the Top 500 List.
Id. § 494.5(a)(3), (b)(1).
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Franceschi alleges that he received notice from the FTB
dated February 2014 indicating that he was to be included in
the next publication of the Top 500 List because he owed
$242,276.73 in back taxes. Franceschi further alleges that he
anticipated that the DMV would suspend his driver license
after the next publication of the Top 500 List.
In an effort to forestall his suspension, Franceschi sued
under 42 U.S.C. § 1983, asserting claims for violations of his
procedural and substantive due process rights, and the Equal
Protection Clause.4 In addition he claimed that the 2012
enactment of Section 494.5 constituted a bill of attainder. See
Franceschi, 2014 WL 12069866, at *1. Franceschi also
sought a preliminary injunction seeking to prohibit the
publication of his name on the Top 500 List and the
suspension of his driver’s license. During the pendency of
this action, after the District Court denied Franceschi’s
application for interlocutory relief, the DMV suspended his
The defendants moved to dismiss Franceschi’s lawsuit
under Federal Rule of Civil Procedure 12(b)(6). The District
Court concluded that the statutory scheme Franceschi
challenged was constitutional. It held, among other things,
that Franceschi had received adequate notice and an
opportunity to be heard before his license was suspended. It
also determined that the application of Sections 19195 and
494.5 to him did not violate his substantive due process rights
by impermissibly burdening his right to practice his
profession or having retroactive effect, did not violate his
Franceschi also brought a claim for violation of the Privileges or
Immunities Clause which the District Court dismissed. On appeal, he
abandons this claim.
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equal protection rights, and did not constitute a bill of
attainder. Id. at *1–*13. Accordingly, the District Court
denied Franceschi’s request for injunctive relief and
dismissed his lawsuit.
This appeal followed. We review de novo the District
Court’s decision to dismiss Franceschi’s complaint under
Rule 12(b)(6). See Manzarek v. St. Paul Fire & Marine Ins.
Co., 519 F.3d 1025, 1030–31 (9th Cir. 2008).
A. Procedural Due Process
Franceschi’s procedural due process claim has two
elements. He must plausibly allege: “(1) a deprivation of a
constitutionally protected liberty or property interest, and
(2) a denial of adequate procedural protections.” Hufford v.
McEnaney 249 F.3d 1142, 1150 (9th Cir. 2001) (citation
omitted). Most licenses are constitutionally protected
property and cannot be taken away without procedural due
process required by the Fourteenth Amendment. See Bell v.
Burson, 402 U.S. 535, 539 (1971). “[T]he Due Process
Clause applies to the deprivation of a driver’s license by the
State[.]” Dixon v. Love, 431 U.S. 105, 112 (1971).
The essence of procedural due process is that “individuals
whose property interests are at stake are entitled to ‘notice
and an opportunity to be heard.’” Dusenbery v. United
States, 534 U.S. 161, 167 (2002) (quoting United States v.
James Daniel Good Real Prop., 510 U.S. 43, 48, (1993)). It
is well-established that because due process is a flexible
concept, “[p]recisely what procedures the Due Process Clause
requires in any given case is a function of context.” Brewster
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v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971,
983 (9th Cir. 1998); see also Morrissey v. Brewer, 408 U.S.
471, 481 (1972).
On appeal, Franceschi advances two main arguments why
the challenged statutory scheme provides inadequate process
prior to the deprivation of his driver’s license. First, he
argues that Section 494.5 does not provide an adequate
opportunity to be heard prior to license revocation. Second,
he argues that Section 494.5’s payment plan and financial
hardship exemptions are illusory.
Neither of these
contentions has merit.
The Supreme Court has held that a driver’s license can be
revoked without a pre-revocation hearing. See Dixon,
431 U.S. at 112–15. Franceschi has no response to Dixon. He
nevertheless goes on to argue that he should have been
afforded a pre-deprivation hearing. Specifically, Franceschi
argues that at such a pre-deprivation hearing, he would have
been able to demonstrate that his actual tax delinquency was
below the threshold $100,000 for inclusion on the Top 500
List when time-barred assessments, interest and penalties on
time-barred assessments are excluded.5
Specifically, Franceschi argues that a substantial amount of his tax
delinquency is time-barred by Section 13680 of the California Revenue &
Taxation Code, which establishes a ten year statute of limitations.
However, this is incorrect. Section 13680 is inapplicable because it only
concerns the collection of gift and estate taxes, not the collection of
income taxes, as the District Court correctly concluded. See Cal. Rev. &
Tax. Code § 13680 (referring to the “collection of any tax imposed by this
part” (emphasis added)); see generally Cal. Rev. & Tax. Code, Part 8
(referring to “Gift and Death taxes”). We note that to the extent that
Franceschi can advance a credible argument that his tax delinquency is
time-barred, he is free to do so in a refund action.
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Franceschi’s arguments overlook the fact that he had a
readily available, constitutionally valid, pre-deprivation
opportunity to prevent the suspension of his license. After
receipt of the notice of revocation and before his license was
suspended, Franceschi could have challenged his threatened
suspension by paying his taxes and filing a refund claim with
the FTB. See Cal. Rev. & Tax Code § 19382. The payment
of his tax liability would have allowed him to retain his
driver’s license. He would then have the opportunity to file
a refund claim and challenge the original tax assessment. In
the event the FTB denied his refund claim, he could still
obtain relief by suing for a refund in California Superior
Courts have consistently held that pay first, litigate later
procedures such as these satisfy due process in the context of
tax collection. See Todd v. United States, 849 F.2d 365, 369
(9th Cir. 1998) (collecting Supreme Court cases holding that
in the federal context, “taxpayers do not have the right to a
hearing prior to collection efforts by the IRS”); see also Bob
Jones Univ. v. Simon, 416 U.S. 725, 746–48 (1974); Aronoff
v. Franchise Tax Bd., 383 P.2d 409, 410 (Cal. 1963) (“The
due process clause does not guarantee the right to judicial
review of tax liability before payment.” (quoting Modern
Barber Colls. v. Cal. Emp’t Stabilization Comm’n, 192 P.2d
916, 919 (Ca1. 1948))). More generally, where tax liability
is involved, postponement of a judicial inquiry is not a denial
of due process if the opportunity for an ultimate judicial
determination of the tax liability is adequate. See Phillips v.
Comm’r of Internal Revenue, 283 U.S. 589, 595 (1931)
(observing that when an “adequate opportunity is afforded for
a later judicial determination of the legal rights, summary
proceedings to secure prompt performance of pecuniary
obligations to the government have been consistently
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sustained”). California, therefore, provides tax delinquents
with a constitutionally adequate procedure to challenge the
amount of their tax delinquency, either before or after the
deprivation of a license under Section 494.5.
Moreover, as noted, Franceschi had multiple opportunities
to challenge the tax deficiencies that the FTB proposed at the
time of their assessment and well before he faced license
suspension. For each of the years from 1995 through 2012,
for which Franceschi failed to file a tax return, he received
written notices of proposed deficiency assessments. Further,
Franceschi does not contest that he received these notices and
in fact concedes that he became obligated to the FTB as far
back as 1995. These procedures afforded him multiple
opportunities to challenge the validity of the assessments that
led to the revocation of his driver’s license. For whatever
reason, he failed to avail himself of any of them. What
Franceschi seeks is a forum in which to dispute his tax
delinquencies well after the time they become final.
Franceschi does, however, have access to such a forum, but
must satisfy his tax deficiencies first.
This result is congruent with the three-part procedural due
process test that the Supreme Court established in Mathews
v. Eldridge, 424 U.S. 319 (1976). See, e.g., Gant v. Cty. of
Los Angeles, 772 F.3d 608, 619 n.12 (9th Cir. 2014). Under
Mathews we consider (1) “the private interest that will be
affected by the official action”; (2) “the risk of an erroneous
deprivation of such interest through the procedure used, and
the probable value, if any, of additional or substitute
procedural safeguards”; and (3) the government’s interest in
minimizing the cost and burden of additional or substitute
procedures. 424 U.S. at 335.
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First, the private interest at issue here is a driver’s license
and, while subject to a level of constitutional protection, a
driver’s license is not a fundamental right and can be
suspended without a prior hearing. See Dixon, 431 U.S. at
113–15. Second, the risk here that the challenged statutory
scheme will result in the erroneous deprivation of a protected
interest is low. The facts supporting the suspension have
already been established through prior proceedings with
adequate process involving multiple opportunities to
challenge the deficiency assessments. Cf. Air N. Am. v. Dep’t
of Transp., 937 F.2d 1427, 1438 (9th Cir. 1991) (“[T]he due
process clause does not require a hearing when . . . there are
no factual questions to resolve.”). Franceschi nonetheless
argues that he did not have the same incentive to challenge
the deficiency assessments before Section 494.5 established
that his license could be revoked. To the extent that
Franceschi suggests that his lack of incentive to challenge the
initial assessments created a greater risk of erroneous
deprivation, we think that risk is adequately mitigated by the
availability of a refund action under Section 19382. Finally,
California obviously has a strong interest in revenue
collection, and the challenged statutory scheme appropriately
reflects the importance of this interest. See Jolly v. United
States, 764 F.2d 642, 646 (9th Cir. 1985). In sum, we readily
conclude that the Mathews factors have been met and that
Franceschi was not denied procedural due process.
B. Substantive Due Process
Franceschi contends that the statutory scheme set forth in
Sections 19195 and 494.5 violates his substantive due process
rights in two respects: first, by impermissibly burdening his
chosen profession, and, second, by acting retroactively.
Neither argument has merit.
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1. Burden on Profession
The Due Process Clause of the Fourteenth Amendment
includes “a substantive component that protects certain
individual liberties from state interference[.]” Mullins v.
Oregon, 57 F.3d 789, 793 (9th Cir. 1995); see also Martinez
v. City of Oxnard, 337 F.3d 1091, 1092 (9th Cir. 2003) (per
curiam) (observing that the Due Process Clause protects
individuals from state action that “interferes with rights
implicit in the concept of ordered liberty” (internal quotation
marks and citation omitted)). The range of liberty interests
that substantive due process protects is narrow and “[o]nly
those aspects of liberty that we as a society traditionally have
protected as fundamental are included within the substantive
protection of the Due Process Clause.” Mullins, 57 F.3d at
793. Substantive due process has, therefore, been largely
confined to protecting fundamental liberty interests, such as
marriage, procreation, contraception, family relationships,
child rearing, education and a person’s bodily integrity, which
are “deeply rooted in this Nation’s history and tradition.”
Moore v. East Cleveland, 431 U.S. 494, 503 (1977); see also
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851
A “right” to drive to work does not resemble any of these
categories. To be sure, the liberty component of the Due
Process Clause includes a generalized right to choose one’s
field of employment, but that right is subject to reasonable
government regulation. Conn v. Gabbert, 526 U.S. 286,
291–92 (1999) (collecting cases). “[I]t is well-recognized that
the pursuit of an occupation or profession is a protected
liberty interest that extends across a broad range of lawful
occupations[,]” although the precise contours of this liberty
interest have not been defined. Dittman v. California,
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191 F.3d 1020, 1029 (9th Cir. 1999) (quoting Wedges/Ledges
of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 65 n.4 (9th Cir.
1994)). What is clear is that, as observed by the Supreme
Court, “the line of authorities establishing the liberty interest
[in pursuing a profession] ‘all deal with a complete
prohibition of the right to engage in a calling[.]’” Id. (quoting
Conn, 526 U.S. at 292).
Franceschi argues that the enforcement of Sections 19195
and 494.5 violates his liberty interest in the pursuit of his
profession because the ability to drive is essential to a
“meaningful” pursuit of the practice of law and, thus, the
suspension of an attorney’s driver’s license for reasons
unrelated to public safety and solely attributable to tax
indebtedness materially interferes with his constitutionally
protected liberty interest to practice law without
This contention has no merit for the obvious reason that
the revocation of his driver’s license does not operate as a
complete prohibition on his ability to practice law, which it
must to violate substantive due process. Franceschi attempts
to sidestep this straightforward requirement by arguing that
a driver’s license is “indispensable” to the practice of law
while at the same time conceding that “it may be possible to
get to some courts on a bus or other public transportation.”
He nevertheless argues doing so would be burdensome and
time consuming. No doubt an inability to drive oneself
around Los Angeles could make the practice of law more
difficult. However, Franceschi still has access to public
transit, taxis, or services such as Lyft or Uber. Accordingly,
whatever burden may exist does not amount to a “complete
prohibition” on Franceschi’s ability to practice law, and thus,
does not rise to a violation of substantive due process. See
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Lowry v. Barnhart, 329 F.3d 1019, 1023 (9th Cir. 2003)
(holding that an “indirect and incidental burden on
professional practice is far too removed from a complete
prohibition to support a due process claim”).
To resist this conclusion, Franceschi cites Arizona Dream
Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014), for
the proposition that the inability to obtain a driver’s license
will likely result in irreparable harm. However, Arizona
Dream Act Coalition is inapposite. There, the plaintiffs were
undocumented immigrants who were brought to the United
States as children and were allowed to remain pursuant to a
federal program then in existence (the Deferred Action for
Childhood Arrivals program). Id. at 1057–58. Arizona
officials implemented a policy that denied driver’s licenses to
these individuals. Id. at 1058. The plaintiffs sought a
preliminary injunction prohibiting the implementation of the
policy, arguing that it violated the Equal Protection Clause
and the Supremacy Clause. Id. The district court concluded
that the policy violated the Equal Protection Clause but
nonetheless denied the request for a preliminary injunction.
Id. In reversing, this Court concluded that the plaintiffs
demonstrated a likelihood of success on their equal protection
claim and were likely to suffer irreparable harm unless the
policy was enjoined because the lack of a driver’s license
“diminished their opportunities to pursue their chosen
professions.” Id. at 1068.
Here, Franceschi contends that in Arizona Dream Act
Coalition, this Court implicitly recognized that the
deprivation of a driver’s license does not need to amount to
a “complete prohibition” on the ability to pursue a profession
for substantive due process purposes. All that needs to be
shown, he contends, is that it operates as a “limitation” or
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“diminishes opportunity” to pursue a chosen profession.
However, Arizona Dream Act Coalition says nothing of the
sort. On the contrary, Arizona Dream Act Coalition involved
an equal protection claim and sheds little light on
Franceschi’s substantive due process claim. Concluding that,
where plaintiffs have shown a likelihood of success on the
merits of their equal protection claims, the denial of a driver’s
license would cause irreparable harm as required to support
the issuance of an injunction, does not establish that the
denial of a driver’s license would amount to a substantive due
Concededly, the revocation of
Franceschi’s driver’s license will complicate his law practice.
But this complication is not a substantive due process
violation since it does not amount to a complete prohibition
on his ability to practice law. See Lowry, 329 F.3d at 1023.
Even if Sections 19195 and 494.5 operated as a de facto
complete prohibition on Franceschi’s ability to practice
law—which they do not—the sections would still withstand
constitutional scrutiny. A state may regulate entry into a
profession, so long as the regulation is rationally related both
to a legitimate state interest and to the applicant’s fitness or
capacity to practice the profession. Dittman, 191 F.3d at
1030. When reviewing a challenge to a legislative act that
does not infringe on a fundamental right, rational basis review
applies, under which we need only determine “whether the
legislation has a ‘conceivable basis’ on which it might
survive constitutional scrutiny.” Id. at 1031 (quoting Lupert
v. Cal. State Bar, 761 F.2d 1325, 1328 (9th Cir. 1985)).
Here, the ability to practice law in California is not a
fundamental right, and Section 494.5 is related to a legitimate
state interest: the collection of tax revenue. The government
obviously has a powerful interest in the prompt collection of
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revenue. See Phillips, 283 U.S. at 597. The “[f]ailure to
honor legal commitments and obligations is a proper ground
for refusing to issue a certificate as to the possession of the
requisite character and moral fitness” for the practice of law.
Dittman, 191 F.3d at 1032 (alteration in original) (citation
omitted). It is therefore rational for California to require that
those who practice law be current on tax obligations as a
condition of licensure, as their failure to do so could speak to
moral character. See id.; c.f. People v. Cully, 675 N.E.2d
1017, 1024 (Ill. Ct. App. 1997) (noting that “[i]f the licensee
culpably does not repay [his student loan], this calls his moral
character into question and could constitute conduct that
defrauds or harms the public”). Accordingly, the challenged
statutory scheme does not impermissibly burden Franceschi’s
Franceschi argues that the statutory scheme—and
specifically Section 494.5’s 2012 enactment—violates
substantive due process by operating retroactively to impose
a penalty that did not exist at the time his tax deficiencies
were first assessed in 1995. A statute does not operate
retroactively “merely because it is applied in a case arising
from conduct antedating the statute’s enactment, or upsets
expectations based in prior law.” Landgraf v. USI Film
Prods., 511 U.S. 244, 269 (1994) (internal citation omitted).
A statute operates retroactively when it “attaches new legal
consequences to events completed before its enactment.” Id.
at 269–70; see also Gen. Motors Corp. v. Romein, 503 U.S.
181, 191 (1992).
Section 494.5 does not operate retroactively because it
does not sanction Franceschi for past conduct: the incurrence
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of past-due tax obligations. Rather it is his current refusal to
discharge his tax obligations that exposes him to license
revocation. In other words, the effective date of Section
494.5 is not dispositive because Section 494.5’s sanction is
dependent on a taxpayer’s current conduct (whether a
taxpayer takes steps to discharge a past-due tax obligation)
and not on past conduct (the incurrence of a past-due tax
obligation). Consequently, Section 494.5 does not attach new
legal consequences to events completed before its enactment.
Moreover, after Section 494.5 was enacted, Franceschi
received additional proposed assessments in April 2012,
March 2013, and March 2014, all of which he ignored. For
these reasons, this substantive due process claim fails.
C. Equal Protection
The Fourteenth Amendment provides that “[n]o state shall
. . . deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV, § 1.
Governmental conduct, such as revocation of a driver’s
license, that “neither proceeds along suspect lines nor
infringes fundamental constitutional rights” is subject to
rational basis review and, as such, does not violate the Equal
Protection Clause “if there is any reasonably conceivable
state of facts that could provide a rational basis for the
classification.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307,
313 (1993) (citation omitted); see also Armour v. City of
Indianapolis, 566 U.S. 673, 680 (2012).
Franceschi argues that Section 494.5, together with
Section 19195, impermissibly singles out taxpayers who fall
within the class of California’s 500 largest tax delinquents
(provided they owe more than $100,000). Franceschi
contends that because this selection criteria has the effect of
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meting out unequal treatment to similarly situated
individuals, it is arbitrary and unreasonable.6
We have no difficulty in concluding that a citizen’s
failure for nearly twenty years to pay unusually large amounts
of past-due taxes supplies a rational basis for the state’s
action. This is especially so because legislatures have
particularly “broad latitude in creating classifications and
distinctions in tax statutes.” Armour, 566 U.S. at 680
(quoting Regan v. Taxation With Representation of Wash.,
461 U.S. 540, 547 (1983)).
California has a legitimate—and significant—interest in
the prompt collection of tax revenue. See Jolly, 764 F.2d at
646. As the District Court correctly concluded, the California
legislature’s decision to single out the 500 individuals and
corporations with the largest tax delinquencies via Section
19195 and then impose sanctions on that group through
Section 494.5 is rationally related to California’s legitimate
interest in the prompt collection of tax revenue. Although the
California legislature could have established an incrementally
higher or lower threshold for tax delinquency, that the
legislature chose a $100,000 cutoff does not render the
statutory scheme unconstitutional. See Beach Commc’ns, 508
U.S. at 316 (noting that “the fact [that] the line might have
been drawn differently at some points is a matter for
legislative, rather than judicial, consideration” (alteration in
For the first time on appeal, Franceschi argues that the public
disclosure of his alleged tax liability on the Top 500 List violates his right
to privacy under the California Constitution. We decline to reach this
contention. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)
(observing that, as a general rule, the court does not consider arguments
that are raised for the first time on appeal).
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original) (quoting U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166,
179 (1980))). For these reasons, Franceschi’s equal
protection claim fails.
D. Bill of Attainder
Franceschi next contends that Sections 19195 and 494.5
together constitute a bill of attainder. The Constitution
provides that “[n]o State shall . . . pass any Bill of
Attainder[.]” U.S. Const. art. I, § 10, cl. 1.7 A bill of
attainder is “a law that legislatively determines guilt and
inflicts punishment upon an identifiable individual without
provision of the protections of a judicial trial.” SeaRiver
Mar. Fin. Holdings Inc. v. Mineta, 309 F.3d 662, 668 (9th
Cir. 2002) (quoting Nixon v. Adm’r of Gen. Servs., 433 U.S.
425, 468 (1977)); see also Fowler Packing Co., Inc. v.
Lanier, 844 F.3d 809, 817 (9th Cir. 2016).
The key features of a bill of attainder are “that the statute
(1) specifies the affected persons and (2) inflicts punishment
(3) without a judicial trial.” SeaRiver, 309 F.3d at 668 (citing
Selective Serv. Sys. v. Minn. Pub. Interest Research Grp.,
468 U.S. 841, 847 (1984)). The “clearest proof” is required
before courts can conclude that a legislative enactment is as
a bill of attainder. Id. (citing Communist Party of United
The United States Constitution contains two sections prohibiting the
passage of a bill of attainder, one aimed at the federal government (Article
I, Section 9, Clause 3) and one aimed at the states (Article I, Section 10,
Clause 1). The same analysis applies to both sections. See SeaRiver Mar.
Fin. Holdings Inc. v. Mineta, 309 F.3d 662, 672 n.6 (9th Cir. 2002); see
also Fowler Packing Co., Inc. v. Lanier, 844 F.3d 809, 816 n.5 (9th Cir.
2016). Accordingly, we rely on cases interpreting either section in
assessing the constitutionality of Sections 19195 and 494.5.
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States v. Subversive Activities Control Bd., 367 U.S. 1, 83
Not every law which burdens some persons or groups is
a bill of attainder; after all, practically every law burdens
someone. “How the class is designated and what purposes
the law furthers governs the specificity analysis[.]” United
States v. Munsterman, 177 F.3d 1139, 1142 (9th Cir. 1999).
“If a law merely designates a properly general characteristic
. . . and then imposes upon all who have that characteristic a
remedial measure reasonably calculated to achieve a
nonpunitive purpose,” there is no attainder. Id. (quoting
Laurence H. Tribe, American Constitutional Law § 10-4 at
643 (2d ed. 1988)). Franceschi contends that the combined
effect of Sections 19195 and 494.5 is to single out the largest
500 tax debtors for legislative punishment and for these
reasons the sections constitute a bill of attainder. This
contention has no merit.
In considering whether a statute singles out a person or
class, we look to various established guideposts. See
SeaRiver, 309 F.3d at 669. “First, we look to whether the
statute or provision explicitly names the individual or class,
or instead describes the affected population in terms of
general applicability.” Id. (citation omitted). Sections 19195
and 494.5 do not expressly name Franceschi. He does not
contend that when the provisions were enacted anyone in the
legislature had him in mind as opposed to the thousands of
other residents who were persistently delinquent in their
taxes. To the contrary, Section 19195 is couched in general
terms and Section 494.5 simply refers to Section 19195.
Accordingly, this factor weighs against the conclusion that
the Sections constitute a bill of attainder.
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Second, we determine “whether the identity of the
individual or class was ‘easily ascertainable’ when the
legislation was passed.” Id. (quoting United States v. Brown,
381 U.S. 437, 448–49 (1965)). The group of the 500 largest
tax delinquents with delinquencies over $100,000 was no
doubt ascertainable at the time Section 494.5 was enacted, as
the list could have been calculated. But this fact adds little to
the analysis because the list was fluid. Such taxpayers may
have paid their taxes, prevailed in litigation, died, or filed for
bankruptcy. Thus, at the time Section 494.5 was enacted,
there was manifest uncertainty as to who would be affected.
“Third, we examine whether the legislation defines the
individual class ‘by past conduct [that] operates only as a
designation of particular persons.’” Id. (alteration in original)
(quoting Selective Serv. Sys., 468 U.S. at 847). “Thus, this
third inquiry seeks to determine whether the statute is
retrospective, or whether it carries the potential to encompass
a larger class than the individual or group allegedly targeted.”
Id. at 670.
As noted, the Top 500 List is not static. Section 19195
directs the FTB to update the list twice a year, and the
500 largest tax delinquents will not necessarily remain the
same on different versions of the List. In this way, Sections
19195 and 494.5 can affect a growing number of persons over
time and their effect is not limited to any particular group in
existence at the time of the statute’s enactment. Accordingly,
this factor weighs against the conclusion that Sections 19195
and 494.5 specify the affected persons.
Franceschi, however, argues that the Top 500 List’s
fluidity is “of no moment” because the category itself, the
“Top 500 tax delinquents,” remains constant even though
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particular members “come and go” from the list. In support,
Franceschi cites Brown, 381 U.S. 437. This argument makes
no sense. If names “come and go” from a list, then the list
does not remain constant.
misunderstands both Brown and the specificity requirement.
In Brown, the Supreme Court held that a statute that imposed
criminal liability upon Communist Party members who
became officers in labor unions was a bill of attainder.
Brown, 381 U.S. at 456)62. In doing so the Supreme Court
rejected the argument that the challenged statute did not
constitute a bill of attainder because it did not “inflict its
deprivation” upon named individuals but instead targeted the
membership of the Communist Party. Id. at 461 (“We cannot
agree that the fact that [the challenged statue] inflicts its
deprivation upon the membership of the Communist Party
rather than upon a list of named individuals takes it out of the
category of bills of attainder.”). However, the Supreme Court
in Brown held that certain individuals were targeted, and, as
such, the specificity requirement was clearly met there. See
id. at 452 (“The moment [the challenged statue] was enacted,
respondent was given the choice of declining a leadership
position in his union or incurring criminal liability.”).
Tellingly, the statute in question in Brown had a trailing fiveyear disqualification period: it disqualified from holding
union office not just present members of the Communist
Party but also any one who within the previous five years had
been a member of the Communist Party, an easily
ascertainable group. See id. at 458. The situation here is
different. Franceschi does not dispute that the group of
taxpayers who find themselves subject to suspension is not
static. And even more importantly, these taxpayers have the
power to escape license revocation by fulfilling their tax
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“Finally, we review whether the past conduct defining the
affected individual or group consists of ‘irrevocable acts
committed by them.’” SeaRiver, 309 F.3d at 669 (quoting
Selective Serv. Sys., 468 U.S. at 848). “If the defining act is
irrevocable, the individual or class may not escape the effect
of the legislation by correcting the past conduct, thereby
exiting the targeted class.” Id. at 671 (citing Selective Serv.
Sys., 468 U.S. at 851). Sections 19195 and 494.5 do not
focus on irrevocable conduct.
The non-payment of
delinquent taxes is the action that led Franceschi (and others)
onto the Top 500 List and to license suspension. A taxpayer
can escape publication on the Top 500 List (and the attendant
consequences) by, among other ways, making other payment
arrangements with the FTB for full satisfaction of the tax
delinquency, filing for bankruptcy protection, or making
payment arrangements satisfactory to the FTB. See Cal. Rev.
& Tax. Code § 19195(b). Franceschi argues that it “appears”
that the exemptions and releases from a Top 500 List are
granted or denied in a “completely arbitrary and capricious
manner,” and that, as such, the methods which the statute
provides for exiting the list are “largely illusory.” However,
Franceschi does not allege that he ever applied for or was
denied a release from the Top 500 List, arbitrarily or
otherwise. In the absence of plausibly pleaded allegations of
arbitrary and capricious administration of the Top 500 List,
we need not entertain his bare argument on appeal that the list
is administered in such a manner.
In sum, far from being triggered by past and ineradicable
actions, license suspension as a result of Sections 19195 and
494.5 turns on the continuing fact of nonpayment, something
which a delinquent taxpayer can rectify. Selective Serv. Sys.,
468 U.S. at 851 (citing Communist Party, 367 U.S. at 81).
Because all the relevant guideposts point against Franceschi,
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and because he has unquestionably not adduced the “clearest
proof” that the statutory scheme constitutes a bill of attainder,
we reject his contention that the statutory scheme constitutes
a bill of attainder.8
For these reasons, we AFFIRM the judgment of the
Because Franceschi fails to show that Sections 19195 and 494.5
meet the specification prong of a bill of attainder claim, we need not
consider whether the statutory scheme inflicts punishment or fail to
provide a judicial trial. See Fowler Packing Co., 844 F.3d at 809
(explaining that where one element is not satisfied, “we need not address
whether [the statutes] satisfy the other two elements of a bill of attainder
We GRANT Franceschi’s unopposed motions, filed February 24,
2015 and February 27, 2015, to take judicial notice of orders in other
proceedings. See United States v. Navarro, 800 F.3d 1104, 1109 n.3 (9th
Cir. 2015). We also GRANT Appellees’ unopposed motion, filed April
30, 2015, to take judicial notice of legislative history pertaining to Section
494.5. See Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012).
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