National Association for the Advancement of Multijurisdiction Practice et al v. Arizona Supreme Court et al

Filing 96

ORDER that Plaintiffs' Motion for Hearing 84 is denied. ORDER that Plaintiffs' Requests to Take Judicial Notice 87 and 88 are granted. ORDER that Defendants' Motion for Summary Judgment 54 is granted and that the Clerk of Court shall enter judgment in favor of Defendants and against Plaintiffs and shall terminate this action. ORDER that Plaintiffs' Motion for Summary Judgment 28 is denied. ORDER that Defendants' Motion to Dismiss 52 is denied as moot. ORDER t hat the Motion for "Order Admitting [Kolman] 90 is denied for lack of subject matter jurisdiction. ORDER that Plaintiffs' Motion for Leave to Join Party 93 is denied (please see attached order for complete information). Signed by Magistrate Judge Bridget S Bade on 9/19/13.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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National Association for the Advancement No. CV-12-1724-PHX-BSB
of Multijurisdiction Practice; Allison Girvin;
Mark Anderson; and Mark Kolman,
ORDER
Plaintiffs,
v.
Hon. Rebecca White Berch, Chief Justice;
Hon. W. Scott Bales, Vice Chief Justice;
Hon. John Pelander; and Hon. Robert M.
Brutinel, Justices,
Defendants.

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In this matter, Plaintiffs, the National Association for the Advancement of

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Multijurisdiction Practice (the NAAMJP), Allison Girvin (Girvin), Mark Anderson

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(Anderson), and Mark Kolman (Kolman), challenge Arizona Supreme Court Rule 34(f),

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which provides for admission on motion to the Arizona Bar (the AOM Rule). (Doc. 36.)

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Plaintiffs allege that Arizona’s AOM Rule is unconstitutional because it allows admission

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on motion for attorneys admitted in states having reciprocal admission rules for Arizona

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attorneys (reciprocity states), but requires attorneys admitted to practice law in states that

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do not have reciprocal admission rules (non-reciprocity states) to take the uniform bar

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examination (UBE) to gain admission to the Arizona Bar.

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declaratory and injunctive relief; specifically Plaintiffs request an order declaring

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Arizona’s AOM Rule unconstitutional and enjoining its enforcement. (Id. at ¶ 97.)

(Id.)

Plaintiffs seek

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The parties have filed several dispositive motions. Plaintiffs have filed a motion
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for summary judgment (Doc. 28), and Defendants have filed a motion to dismiss

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(Doc. 52) and a cross motion for summary judgment.2 (Doc. 54.) After the dispositive

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motions were fully briefed, the NAAMJP and Kolman filed a motion to admit Kolman to

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the Arizona Bar. (Doc. 90.) Plaintiffs also filed a motion to amend the Second Amended

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Complaint to add a party. (Doc. 95.) As set forth below, the Court grants summary

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judgment in Defendants’ favor on Plaintiffs’ claims and denies Defendants’ motion to

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dismiss as moot. The Court also denies Plaintiffs’ motion for summary judgment,3

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denies Plaintiffs’ motion to admit Kolman to the Arizona Bar, and denies Plaintiffs’

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motion to amend.

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In their motion to dismiss, Defendants argue that the Second Amended
Complaint should be dismissed for violating Rule 8, which requires a “short and plain
statement” of the claims that is “simple, concise, and direct.” (Doc. 52 at 24 (citing Fed.
R. Civ. P. 8(a)(1) and (2)).) The Second Amended Complaint — which is comprised of
ninety-seven paragraphs, forty-six footnotes, and forty-nine pages of legal and policy
arguments, conclusory allegations, and miscellaneous irrelevant discussions — does not
comply with Rule 8 and the Court could dismiss it on that basis. However, considering
the procedural posture of the case, and in the interest of judicial economy, the Court
declines to dismiss the Second Amended Complaint for violating Rule 8 and will address
the merits of the parties’ arguments.
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Plaintiffs have requested oral argument on the dispositive motions.
(Doc. 84.) Because the parties have exhaustively briefed the pending motions with
hundreds of pages of argument in numerous filings (Docs. 28, 52, 53-1, 54, 54-1, 69, 70,
70-1, 71, and 72), the Court finds that oral argument is not necessary to resolve the
pending motions and denies Plaintiffs’ request. See Mahon v. Credit Bur. of Placer
County, Inc., 171 F.3d 1197,1200 (9th Cir. 1999) (explaining that if the parties provided
the district court with complete memoranda of the law and evidence in support of their
positions, ordinarily, oral argument is not required).
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Plaintiffs filed their Complaint on August 13, 2012 (Doc. 1), an Amended
Complaint on October 15, 2012 (Doc. 14), and the Second Amended Complaint on
December 21, 2012. (Doc. 36.) Plaintiffs filed their motion for summary judgment on
December 6, 2012 (Doc. 28), before filing their Second Amended Complaint, and
therefore that motion was technically mooted by that complaint. Plaintiffs, however, did
not file an additional motion for summary judgment, nor did they seek leave to apply the
arguments in their motion for summary judgment to the claims in their Second Amended
Complaint. Defendants, nonetheless, filed a response to Plaintiffs’ motion for summary
judgment, which they combined with a cross motion for summary judgment. (Doc. 54.)
Plaintiffs filed a reply in support of their motion for summary judgment consolidated
with their opposition to Defendants’ motion for summary judgment and motion to
dismiss. (Doc. 69.) Plaintiffs also filed a separate opposition to Defendants’ motion for
summary judgment and motion to dismiss. (Doc. 70.) Although the procedural history is
convoluted, the parties’ motions for summary judgment have been fully briefed and the
Court has considered the parties’ arguments.
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I.

Background

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A.

Plaintiff NAAMJP and the Individual Plaintiffs

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The NAAMJP is a non-profit corporation that describes its mission as improving

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the legal profession by promoting the adoption of the American Bar Association’s (ABA)

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recommendation for reciprocal bar admission. (Doc. 36 at 4-5; Russell Decl. ¶¶ 1and 3.)4

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Plaintiffs’ counsel Joseph Giannini, who is also a director of the NAAMJP (Doc. 54-1

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¶ 32; Doc. 70-1 ¶ 32), has filed numerous challenges to state and federal bar admission

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requirements on a variety of grounds, including the Supremacy Clause, the Commerce

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Clause, Title VII, the Fifth Amendment right to property and right to travel, and the Full

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Faith and Credit Clause. See Paciulan v. George, 229 F.3d 1226, 1228 (9th Cir. 2000)

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(citing McKenzie v. Rehnquist, 1999 WL 1215630 (D.C. Cir. Nov. 22, 1999)); Morissette

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v. Yu, 1994 WL 123871 (9th Cir. Apr. 11, 1994); Giannini v. Real, 911 F.2d 354 (9th

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Cir.1990); Giannini v. Comm. of Bar Exam’rs, 847 F.2d 1434 (9th Cir. 1988)).

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Plaintiff Kolman has been a licensed Maryland attorney since 1971. (Doc. 36 at 6;

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Kolman Decl. ¶ 1.) Kolman has also been admitted by waiver to practice in the District

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of Columbia, which has reciprocity with Arizona.5 (Doc. 69 at 9 n.3) Kolman is a

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partner with Dickstein Shapiro LLP in Washington, D.C. (Kolman Decl. ¶ 4.) He moved

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to Arizona in 2008. (Id. at ¶ 11.) Kolman attests that he has obtained a certificate of

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completion of the Arizona Law for Admission on Motion Course and passed the Multi-

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State Professional Responsibility Examination (MPRE). (Id. at ¶ 13.) He also attests

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that he has provided the Arizona Committee on Character and Fitness the documentation

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required for admission on motion. (Id.) Kolman applied for, and was denied, admission

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Plaintiffs attached to their motion for summary judgment the declarations
of Jeffrey Russell, Girvin, Anderson, and Kolman (Doc. 28, Exs. 1-4). Although
Plaintiffs did not comply with the Local Rules’ requirement that a party file a statement
of facts “separate from the motion and memorandum,” LRCiv. 56.1, the Court will not
deny Plaintiffs’ motion on that basis.
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A “List of Reciprocal and Non-Reciprocal Jurisdictions with Arizona for
Admission on Motion” is located at www.azcourts.gov.

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on motion to the Arizona Bar because his state of licensing, Maryland, does not have

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reciprocity with Arizona. (Id. at ¶ 14.) On February 24, 2011, Kolman filed a petition

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for review with the Arizona Supreme Court. (Id. at ¶ 15.) The court denied his petition

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on April 19, 2011. (Id.)

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Plaintiff Girvin is a licensed California attorney. (Id. at 8; Girvin Decl. ¶ 2.) She

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moved to Arizona in 2012. (Doc. 36 at 8.) Girvin received a score of 272 on the UBE

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administered in Arizona (Arizona UBE) in July 2012;6 her score was one point below a

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passing score of 273. (Girvin Decl. ¶¶ 13, 15.) Girvin alleges that she failed the

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examination “after counsel for defendants communicated [defense counsel] had the

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connections, power, and ruthless intent to retaliate for filing this lawsuit.” (Doc. 36 at 8;

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Girvin Decl. ¶¶ 16-17.)

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examination consisting of 200 multiple choice questions. (Girvin Decl. at ¶¶ 15, 19.)

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Girvin attests that the Arizona Supreme Court and the National Conference of Bar

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Examiners have refused to disclose a breakdown of her MBE score, or her state and

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national rank on the MBE test. (Id. at ¶ 20.) Girvin scored 137.4 on the MEE, the essay

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portion of the UBE. (Id. at ¶ 15.) She attests that the Arizona Supreme Court has refused

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to provide a breakdown of her scores on the MEE. (Id. at ¶ 21.)

Girvin scored 134.6 on the MBE, a portion of the bar

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Plaintiff Anderson is a licensed Montana attorney. (Doc. 36 at 9; Anderson Decl.

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¶ 1.) Anderson attests that Arizona’s rules regarding admission on motion have deterred

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him from moving to Arizona to practice law. (Anderson Decl. ¶¶ 1-2.) He alleges that

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he will move to Arizona “if Arizona abrogates its tit-for-tat bar admission Rule . . . .”

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(Doc. 36 at 9.)

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Arizona adopted the Uniform Bar Examination (UBE) and first
administered the UBE in July 2012. See www.ncbex.org. The UBE consists of the
Multistate Essay Examination (MEE), the Multistate Bar Examination (MBE), and two
Multistate Performance Test (MPT) tasks. Id.

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B.

Admission to the Arizona Bar and Rule 34

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The Rules of the Arizona Supreme Court provide three methods of admission to

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the practice of law in Arizona: (1) admission by Arizona UBE (Ariz. R. Sup. Ct. 34(a));

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(2) admission on motion (Ariz. R. Sup. Ct. 34(f)); and (3) admission by transfer of UBE

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score from another jurisdiction (Ariz. R. Sup. Ct. 34(h)).

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The Arizona Supreme Court Committees on Examinations and Character and

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Fitness make initial determinations regarding admission to the bar based on educational

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and fitness findings. (DSOF ¶¶ 1,4, Ex. A.)7 A person aggrieved by a decision of either

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Committee may file a petition for review with the Arizona Supreme Court pursuant to

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Ariz. R. Sup. Ct. 36(g)(1). The Arizona Supreme Court has exclusive jurisdiction to

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make the ultimate decision regarding who may practice law in Arizona and under what

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conditions. (DSOF ¶ 2; Ex. A.); see also Ariz. R. Sup. Ct. 31.

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Plaintiffs challenge the Arizona Supreme Court’s rule governing admission on
motion, Rule 34(f)(1). When Plaintiffs filed this matter, Rule 34(f) provided that:
1. An applicant who meets the requirements of (A) through (H) of this paragraph
(f)(1) may, upon motion, be admitted to the practice of law in this jurisdiction.
The applicant shall:

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A. have been admitted by bar examination to practice law in another jurisdiction
allowing for admission of licensed Arizona lawyers on a basis equivalent to this
rule;
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C. have been primarily engaged in the active practice of law in one or more states,
territories, or the District of Columbia for five of the seven years immediately
preceding the date upon which the application is filed.
Ariz. R. Sup. Ct. 34(f)(A) and (C).

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Citations to “DSOF” are to Defendants’ Statement of Facts in Support of
their Motion for Summary Judgment, located at exhibit 1 to Defendants’ Motion for
Summary Judgment. (Doc. 54, Ex. 1.) Exhibit A to Defendants’ Statement of Facts is
the Declaration of Emily Holliday, an employee of the Administrative Office of the
Courts, and manager of Attorney Admissions Unit, Certification and Licensing. (Id.)
Plaintiffs object that paragraphs one through five of Defendants’ statement of facts are
immaterial and irrelevant. Because these paragraphs discuss procedures for admission to
the Arizona Bar, which are relevant to the issues in this case, Plaintiffs’ objections are
unfounded. (Doc. 70, Ex. 1 at 4.)

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Effective July 1, 2013, the Arizona Supreme Court expanded Rule 34(f)(1) to

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allow attorneys to apply for admission on motion to the Arizona Bar if they have been

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“admitted by bar examination to practice law in one or more states, territories, or the

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District of Columbia, and have been admitted to and engaged in the active practice of law

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for at least five years in another jurisdiction or jurisdictions allowing for admission of

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licensed Arizona lawyers on a basis equivalent to this rule.” Ariz. R. Sup. Ct. 34(f)

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(2013).

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Under this amendment, attorneys who were admitted by bar examination in a non-

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reciprocal jurisdiction, and then became admitted by motion and practiced in a

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jurisdiction that Arizona deems reciprocal, such as the District of Columbia, may also

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apply for admission on motion. Although this amendment to Rule 34(f) likely increases

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the number of attorneys eligible for admission on motion, it does not render the pending

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action moot because it does not abrogate the reciprocity requirement at the heart of

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Plaintiffs’ challenge to that rule.

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II.

Judicial Notice

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Before considering the pending motions, the Court considers Plaintiffs’ request

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that the Court take judicial notice that the State of Montana adopted the UBE in July

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2013. (Docs. 87 and 88.) Defendants oppose this request and argue that Montana’s

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adoption of the UBE is not material to the issues before the Court.

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Defendants also argue that Plaintiffs’ request for judicial notice improperly includes

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additional arguments related to issues that the parties have fully briefed.

(Doc. 89.)

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Under Federal Rule of Evidence 201, a trial court may take judicial notice of facts

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“if requested by the party and supplied with the necessary information.” Fed. R. Evid.

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201(d). A fact is appropriate for judicial notice if it is “not subject to reasonable dispute

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because it is (1) generally known within the trial court’s territorial jurisdiction; or (2) can

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be accurately and readily determined by from sources whose accuracy cannot reasonably

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be questioned.”

Id. at 201(b).

Facts contained in public records are considered

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appropriate subjects of judicial notice. Santa Monica Food Not Bombs v. City of Santa

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Monica, 450 F.3d 1022, 1025 (9th Cir. 2006).

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The Court confirmed that the Montana Supreme Court adopted the UBE on July 3,

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2013 by consulting the National Conference of Bar Examiners website, www.ncbex.org

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and the Montana Bar Association’s website, www.montanabar.org. Although the Court

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will take judicial notice that the Supreme Court of Montana adopted the UBE in July

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2013, that fact is not relevant to the issues in this case. Because the Court did not permit

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additional briefing on the pending dispositive motions, the Court will not consider

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Plaintiffs’ other arguments asserted in its request for judicial notice.

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III.

Standards of Review

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A.

Summary Judgment Motions

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Federal Rule of Civil Procedure 56 authorizes the Court to grant summary

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judgment “if the movant shows that there is no genuine dispute as to any material fact

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and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);8 see

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also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the

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initial burden of identifying the portions of the record that it believes demonstrate the

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absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323.

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If the moving party meets its initial burden, the opposing party must establish the

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existence of a genuine dispute as to any material fact. See Matsushita Elec. Indus. Co. v.

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Zenith Radio Corp., 475 U.S. 574, 585–86 (1986). The opposing party must demonstrate

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the existence of a factual dispute that is both material, meaning it affects the outcome of

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the claim under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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248 (1986); Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., Inc., 618

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F.3d 1025, 1031 (9th Cir. 2010), and genuine, meaning “‘the evidence is such that a

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reasonable jury could return a verdict for the nonmoving party.’” Freecycle Sunnyvale v.

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The 2010 amendments to Rule 56 did not alter the standard for granting
summary judgment and, therefore, cases applying the prior version of Rule 56 remain
applicable. See Fed. R. Civ. P. 56 advisory committee’s note (2010 amendments).

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Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010) (quoting Anderson, 477 U.S. at

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248). The opposing party “must show more than the mere existence of a scintilla of

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evidence.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing

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Anderson, 477 U.S. at 252). However, the evidence of the non-movant is “to be believed,

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and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.

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B.

Rule 12 Motions to Dismiss

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Under Rule 12(b)(1), a defendant may move to dismiss a complaint for lack of

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subject matter jurisdiction. “[W]hen considering a motion to dismiss pursuant to Rule

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12(b)(1) the district court is not restricted to the face of the pleadings, but may review

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any evidence, such as affidavits and testimony, to resolve factual disputes concerning the

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existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).

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Under Rule 12(b)(6), a defendant may move to dismiss for failure to state a claim upon

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which relief can be granted. When a claim is challenged under this rule, the court

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construes the complaint liberally in the plaintiff’s favor. Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 & 570 (2007). The court presumes that all well-pleaded allegations

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are true, resolves all reasonable doubts and inferences in the plaintiff's favor, and views

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the complaint in the light most favorable to the plaintiff. Id. at 555.

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IV.

Summary of the Claims and Defenses

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Plaintiffs’ Complaint and First Amended Complaint named the Arizona Supreme

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Court and four Arizona Supreme Court Justices as Defendants. (Docs. 1 and 14). In the

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Second Amended Complaint, however, Plaintiffs omitted the Arizona Supreme Court as

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a Defendant, and instead named as Defendants only four Arizona Supreme Court

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Justices, in their official capacities. (Doc. 36 at 10.)

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Plaintiffs bring this suit pursuant to 42 U.S.C. § 1983 and assert violations of the

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First Amendment, the Privileges and Immunities Clause, the Dormant Commerce Clause,

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and the Fourteenth Amendment’s Equal Protection and Due Process Clauses. (Doc. 36.)

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Plaintiffs seek summary judgment on all the claims in their Second Amended Complaint,

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but their motion addresses only their assertion of standing, their First Amendment

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Claims, excluding Girvin’s retaliation claim, and their right to travel claim under the

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Privileges and Immunities Clause. (Doc. 28.)

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In their motion to dismiss and their motion for summary judgment, Defendants

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assert nearly identical arguments that Plaintiffs’ claims should be dismissed for lack of

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subject matter jurisdiction, or summary judgment entered in Defendants’ favor, because

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Plaintiffs claims are barred by: (1) the Eleventh Amendment; (2) the Rooker-Feldman

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doctrine; (3) judicial and legislative immunity; and (4) Article III’s justiciability

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doctrines. (Docs. 52 and 54.) Defendants also argue that Plaintiffs claims are barred

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because they failed to exhaust state remedies by seeking a rule change through Ariz. R.

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Sup. Ct. 28. Defendants further argue that they are entitled to summary judgment, or

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dismissal for failure to state a claim, because Plaintiffs’ claims lack merit. This argument

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is directed to Plaintiffs’ claims under the First Amendment, the Dormant Commerce

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Clause, the Privileges and Immunities Clause, and the Equal Protection and Due Process

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Clauses of the Fourteenth Amendment. (Docs. 52 and 54.)

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V.

Analysis of Potential Bars to Plaintiffs’ Claims

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A.

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Defendants first argue that this Court lacks subject matter jurisdiction over

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Plaintiffs’ claims because the State of Arizona and the Arizona Supreme Court are not

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amenable to suit in federal court under the Eleventh Amendment. (Doc. 54 at 4.) The

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Eleventh Amendment bars suit against a state unless Congress has abrogated the state’s

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sovereign immunity or the state has waived it. Holley v. Cal. Dep’t of Corrs., 599 F.3d

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1108, 1111 (9th Cir. 2010). This protection extends to the agencies and departments of a

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state.

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Amendment purposes.” Lucas v. Ariz. Sup. Ct. Fiduciary Certification Program, 2011

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WL 5289774, at *1 (9th Cir. Nov. 3, 2011); see also Greater L.A. Council on Deafness,

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Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir.1987) (“[A] suit against the Superior Court is

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a suit against the State, barred by the eleventh amendment.”). Thus, unless an exception

Id.

Eleventh Amendment Immunity

“The Arizona Supreme Court . . . is an ‘arm of the state’ for Eleventh

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applies, the Eleventh Amendment would bar Plaintiffs from suing the Arizona Supreme

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Court or the State of Arizona.

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Defendants acknowledge that Plaintiffs have not named the State of Arizona or the

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Arizona Supreme Court as Defendants in the Second Amended Complaint. Rather, the

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Defendants are four Arizona Supreme Court Justices, acting in their official capacities.

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(Doc. 36 at 10.) Defendants, however, assert that because Plaintiffs seek relief against

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“Arizona,” the “State,” and the “Arizona Supreme Court,” and do not seek any relief

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against the named Justices, their claims are actually against the Arizona Supreme Court

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or the State of Arizona and are barred by the Eleventh Amendment. (Doc. 54 at 5.)

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Relying on Mothershed v. Justices of the Sup. Ct., 410 F.3d 602 (9th Cir. 2005),

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Defendants further argue that Plaintiffs’ claims against the Justices are really claims

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against the Arizona Supreme Court because that court promulgated the challenged AOM

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Rule at the direction of the State as a sovereign. In Mothershed, the plaintiff alleged that

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certain Arizona rules governing pro hac vice admission and admission requirements for

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out-of-state attorneys violated the Sherman Act and the First Amendment. Id. at 605.

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Although the defendants in Mothershed were state bar officials and state supreme court

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justices, the Ninth Circuit did not address whether a suit against these individuals would

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be barred under the Eleventh Amendment as a suit against the state.

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Instead, the Ninth Circuit found that the individual defendants were state actors for

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purposes of Parker immunity to antitrust liability.9 Id. at 608-09. The Ninth Circuit

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stated that “although [plaintiff’s] claim is nominally against certain state bar officials and

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the Supreme Court Justices in their individual capacities, it is the Supreme Court of

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Arizona that is the real party in interest because the state bar rules that [plaintiff] is

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challenging are promulgated by the court in its supervisory role over the practice of law

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In Parker v. Brown, the Supreme Court held that the Sherman Act does not
apply to certain categories of state action. Id. at 608 (citing Parker v. Brown, 317 U.S.
341, 352 (1943)). The Supreme Court later held that one of the exempted categories of
state action is the regulation of attorneys by a state supreme court. Id. (citing Bates v.
State Bar of Ariz., 433 U.S. 350, 359 (1977)).
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in Arizona.” Id. at 609. Thus, the court concluded that the plaintiff’s antitrust claims

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were barred. Id.

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The court, however, did not find that the Eleventh Amendment, or any other form

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of immunity, barred the plaintiff’s First Amendment claims against the defendants, even

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though it had found that these defendants were acting at the direction of the state as a

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sovereign. Indeed, the court considered the merits of the plaintiff’s First Amendment

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claims. Id. at 610-612 (finding claims failed as a matter of law because the challenged

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rules were reasonable time, place, and manner restrictions on Arizonan’s First

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Amendment right to obtain and consult with a lawyer). Thus, Mothershed does not

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establish that the Eleventh Amendment bars Plaintiffs’ claims.

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Furthermore, Plaintiffs argue that the Ex Parte Young exception to Eleventh

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Amendment immunity applies and allows their claims. (Doc. 69 at 7.) The Ex Parte

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Young exception allows government officials to be sued in their official capacity for

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violating federal law. Ex Parte Young, 209 U.S. 123, 160 (1908); see also Ass’n des

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Eleveurs de Canards et d’Oies du Quebec v. Harris (Harris), ___ F.3d ___, 2013 WL

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4615131 (9th Cir. Aug. 30, 2013); Salt River Project Agr. Imp. and Power Dist. v. Lee

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(SRP II), 672 F.3d 1176, 1181 (9th Cir. 2012). The Ex Parte Young exception only

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permits suits for prospective injunctive relief. Demery v. Kupperman, 735 F.2d 1139,

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1146 (9th Cir. 1984). Additionally, the Ex Parte Young exception “requires a ‘special

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relation’ between the state officer sued and the challenged statute, such that the officer

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has ‘some connection with the enforcement of the act [.]’” Paisley v. Darwin, 2011 WL

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3875992, at *3 (D. Ariz. Sept. 2, 2011) (quoting Confederated Tribes & Bands of

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Yakama Indian Nation v. Locke, 176 F.3d 467, 469 (9th Cir.1999)).

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Here, Plaintiffs seek only prospective injunctive relief, they allege violations of

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federal law, and they are suing the government actors who allegedly violated federal law

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in his or her official capacity. (See Doc. 36 at 10.) In an analogous case, the Ninth

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Circuit held that a plaintiff could sue tribal officials, including Justices of the Navajo

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Nation Supreme Court. SRP II, 672 F.3d at 1181. In so holding, the Court stated, “[t]his

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lawsuit for prospective injunctive relief may proceed against the officials under a routine

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application of Ex Parte Young.” Id. at 1177; see also Harris, 2013 WL 4615131, at *3

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(under the Ex. Parte Young exception, the California Attorney General was not immune

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under the Eleventh Amendment because she had the duty to prosecute any violations of

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the allegedly unconstitutional statute). Accordingly, the Eleventh Amendment does not

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bar Plaintiffs’ claims in this suit. See Giannini v. Real, 711 F. Supp. 992, 996 (C.D. Cal.

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1989) (finding that although the Eleventh Amendment barred damage claims against the

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State of California, plaintiff’s § 1983 claims for injunctive relief against state officials

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were not barred by the Eleventh Amendment).

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B.

The Rooker-Feldman Doctrine

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Defendants next argue that the Rooker-Feldman doctrine bars Kolman’s and

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Girvin’s claims. (Doc. 54 at 5-7.) Although 28 U.S.C. § 1331 usually vests federal

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courts with jurisdiction over federal constitutional claims, the Rooker-Feldman doctrine

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is an exception that applies to preclude jurisdiction. This exception arises out of a

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negative inference from 28 U.S.C. § 1257, the statute that grants jurisdiction to review a

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state court judgment only to the United States Supreme Court, and not the federal district

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courts. See D.C. Ct. App. v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co.,

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263 U.S. 413 (1923). Under the Rooker-Feldman doctrine, the federal district courts lack

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subject matter jurisdiction over a suit that is a “de facto appeal from a state court

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judgment.” Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004); Rooker, 263

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U.S. 413; Hale v. Harney, 786 F.2d 688, 691 (5th Cir. 1986). This doctrine applies even

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when the challenge to the state court decision involves federal constitutional issues.

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Feldman, 460 U.S. at 484–86.

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The Supreme Court, however, has emphasized the Rooker-Feldman doctrine’s

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limited scope explaining that “the Rooker-Feldman doctrine . . . is confined to . . . cases

26

brought by state-court losers complaining of injuries caused by state-court judgments

27

rendered before the district court proceedings commenced and inviting district court

28

review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus.

- 12 -

1

Corp., 544 U.S. 280, 283-84 (2005). The Court noted that in both Rooker and Feldman,

2

the cases that gave rise to the doctrine, the plaintiffs were directly challenging a state

3

court judgment. Exxon, 544 U.S. at 284-85 (noting that the plaintiffs in Rooker alleged

4

that the “adverse state-court judgment was rendered in contravention of the Constitution”

5

and so should be declared “null and void,” and that the plaintiffs in Feldman, in part,

6

directly challenged a state court’s denial of their petitions seeking waiver of a rule that

7

required bar applicants to have graduated from an ABA-approved law school). In both

8

cases, the plaintiffs “called upon the District Court to overturn an injurious state-court

9

judgment.” Id. at 291-92.

10

1.

Plaintiffs’ “As Applied” Challenges to the AOM Rule

11

The Second Amended Complaint alleges that, on its face and as applied to

12

Plaintiffs, the AOM Rule violates the First Amendment (Count I). (Doc. 36 at 32-39.)

13

The Second Amended Complaint also generally asserts that Rule 34(f)(1)(A) and (C)

14

violate the Plaintiffs’ rights under the Privileges and Immunities Clause (Count II), the

15

Dormant Commerce Clause (Count III), and the Equal Protection Clause (Count IV). (Id.

16

at 39-45.) The Second Amended Complaint further alleges that Girvin’s rights under the

17

Due Process Clause of the Fourteenth Amendment were violated when she was assigned

18

a failing grade on the UBE. (Count V). (Id. at 46-48.) Finally, the Second Amended

19

Complaint seeks an order admitting Plaintiffs to the Arizona Bar. (Id. at 49.)

20

Defendants argue that although Kolman and Girvin characterize their claims as

21

facial attacks on the constitutionality of Arizona’s AOM Rule, their claims are

22

“inextricably intertwined” with the final decisions of the Arizona Supreme Court denying

23

them admission to the Arizona Bar and, therefore, they are asking this Court to review a

24

state court decision and it lacks jurisdiction to do so. (Doc. 54 at 6) (citing Craig v. State

25

Bar of Cal., 141 F.3d 1353, 1354 (9th Cir. 1998).) In the Rooker-Feldman context, the

26

phrase “inextricably intertwined” describes the conclusion that a claim asserts an injury

27

whose source is a state court judgment and, therefore, such a claim is barred by Rooker-

28

Feldman. McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir. 2006). “The crucial

- 13 -

1

point is whether the district court is being asked to review the state court decision.”

2

Fayyumi v. City of Hickory Hills, 18 F. Supp. 2d 909, 913 (N.D. Ill. 1998) (citing

3

Feldman 460 U.S. at 483-84 n.16). The Ninth Circuit has explained that “inextricably

4

intertwined” simply means a plaintiff cannot assert legal error of a state court judgment in

5

a district court. Kougasian, 359 F.3d at 1142–43.

6

Kolman applied for admission on motion and the Committee on Character and

7

Fitness denied his admission. The Arizona Supreme Court denied his petition for review.

8

To the extent that Kolman asserts violations of his constitutional rights based on the

9

Arizona Supreme Court’s 2011 denial of his application for admission to practice law in

10

Arizona pursuant to Arizona’s AOM Rule, he is directly attacking a state court judgment

11

and, under Rooker-Feldman, the Court lacks jurisdiction to consider his claims that

12

Arizona’s AOM Rule is unconstitutional “as-applied” to him. See Feldman, 460 U.S. at

13

487-88; Lawrence v. Welch, 531 F.3d 364, 369 (6th Cir. 2009) (affirming district court’s

14

ruling that the Rooker-Feldman doctrine precluded subject matter jurisdiction over claims

15

for injunctive relief requiring defendants to issue plaintiff a license to practice law).

16

Accordingly, Defendants are entitled to summary judgment on Kolman’s “as-applied”

17

challenges to Arizona’s AOM Rule. See Levanti v. Tippen, 585 F. Supp. 499, 503

18

(S.D. Cal. 1984) (district court lacks jurisdiction to review denial of admission which

19

amounts to an “as-applied” challenge).

20

Furthermore, Kolman’s motion for an order directing the Arizona Supreme Court

21

to immediately admit him to the Arizona Bar under amended Rule 34(f) would require

22

this Court to overturn the Arizona Supreme Court’s prior denial of his application for

23

admission on motion and thus Rooker-Feldman bars review of that motion.10 See Exxon,

24

544 U.S. at 291-92. Accordingly, the Court will deny Kolman’s motion for an order

25
10

26
27
28

In his motion for an order directing the Arizona Supreme Court to admit
him to the Arizona Bar (Doc. 90), Kolman argues that he has completed the requirements
for admission on motion and that he is eligible for admission on motion under Rule 34(f),
as amended July 1, 2013, because he has been admitted to practice in the District of
Columbia, which has reciprocity with Arizona. Kolman asks this Court to order the
Arizona Supreme Court to immediately admit him to the Arizona Bar without requiring
him to take further action.
- 14 -

1

directing the Arizona Supreme Court to admit him to the Arizona Bar for lack of subject

2

matter jurisdiction.11 (Doc. 90).

3

Girvin failed the July 2012 UBE administered in Arizona, but did not petition the

4

Arizona Supreme Court for review of the Committee on Examination’s determination of

5

her grade. (DSOF ¶ 28; Doc. 70, Ex. 1 at 6, admitting DSOF ¶ 28.) Girvin alleges that

6

she was denied procedural due process because the results of the Arizona UBE “are

7

secret, [t]he grading policy is secret,” and “there is no meaningful opportunity for judicial

8

review” of those results. (Doc. 36 at 47.) Defendants assert that because Girvin did not

9

seek review in the Arizona Supreme Court, the Committee on Examinations’ initial

10

determination that she should be denied admission to the Arizona Bar constitutes a final

11

decision of the Arizona Supreme Court, and federal court review of that decision is

12

barred by the Rooker-Feldman doctrine. (Doc. 54 at 6.) The Rooker-Feldman doctrine

13

does not apply unless the federal plaintiff seeks to “overturn an injurious state-court

14

judgment.” Exxon, 544 U.S. at 292.

15

Defendants do not cite any authority that supports their argument that the

16

Committee on Examination’s recommendation that Girvin be denied admission to the

17

Arizona Bar constitutes a “state-court judgment” for purposes of the Rooker-Feldman

18

doctrine. Instead, Defendants cite Craig v. State Bar of Cal., 141 F.3d 1353 (9th Cir.

19

1998), to support their argument that Girvin is challenging a decision of the Arizona

20

Supreme Court. In that case, however, the plaintiff sought review of the Committee of

21

Bar Examiners decision in the California Supreme Court and the court denied review.

22

See Craig, 141 F.3d at 1353. Thus, in Craig, the plaintiff was challenging a decision of

23

the California Supreme Court regarding his bar admission and his claim was barred by

24
25
26
27
28

11

Kolman also seeks immediate admission to the bar of the United States
District Court for the District of Arizona. (Doc. 90 at 4.) Kolman must comply with
Local Rule of Civil Procedure 83.1 to be admitted to the bar of this Court. See LRCiv
83.1(a). The Court denies Kolman’s request that it “immediately grant” him admission to
the District Court without requiring him to follow the procedure set forth in Local Rule
83.1.

- 15 -

1

the Rooker-Feldman doctrine. Id. at 1354. Here, because Girvin did not seek review in

2

the Arizona courts, she is not seeking review of a state court judgment. Although

3

Girvin’s procedural due process claim may not be subject to review for some other

4

reason, it is not precluded by the Rooker-Feldman doctrine.
2.

5

Plaintiffs’ Facial Challenges to the AOM Rule

6

The Rooker-Feldman doctrine, however, does not bar Plaintiffs’ general

7

challenges to Arizona’s AOM Rule. See Feldman, 460 U.S. at 1317. Plaintiffs seek an

8

order declaring Ariz. R. Sup. Ct. 34(f) unconstitutional on its face. (Doc. 36 at 49.) This

9

request is not individual to Kolman, Anderson, or Girvin, and it is not based on any

10

Arizona Supreme Court decision denying an individual application for admission on

11

motion to the Arizona Bar. Therefore, this Court has jurisdiction to consider a facial

12

attack on the Arizona AOM Rule. See Levanti, 585 F. Supp. at 503 (finding that the

13

district court had jurisdiction over plaintiff’s claim that the grading scheme employed by

14

the bar examiners unconstitutionally discriminates against non-residents); Doe v. Florida

15

Bar, 630 F.3d 1336, 1341-42 (11th Cir. 2011) (noting that, in contrast to an as-applied

16

challenge, “[a] facial challenge . . . seeks to invalidate a statute or regulation itself” and

17

considering merits of facial challenge to Florida Bar’s rules governing recertification

18

process); Craig, 141 F.3d at 1354-55 (affirming district court’s dismissal of complaint for

19

lack of subject matter jurisdiction because plaintiff’s allegations regarding the state bar’s

20

refusal to modify the oath to conform with his religious beliefs was personal to him and

21

his “sweeping prayer” for “relief as the Court deems just and proper” did not convert his

22

“distinctly individual claims into a general challenge to the oath requirement.”).

23

C.

Judicial Immunity

24

Defendants also assert that this suit is barred because as Arizona Supreme Court

25

Justices they have judicial immunity. (Doc. 54 at 7.) Generally, judges who are sued in

26

their personal capacities for decisions made in their judicial capacities are entitled to

27

absolute judicial immunity. Forrester v. White, 484 U.S. 219, 225–26 (1988). Judicial

28

immunity applies “‘however erroneous the act may have been, and however injurious in

- 16 -

1

its consequences it may have proved to the plaintiff.’” Cleavinger v. Saxner, 474 U.S.

2

193, 199–200 (1985) (quoting Bradley v. Fisher, 80 U.S. 335, 347 (1871)). “Grave

3

procedural errors or acts in excess of judicial authority do not deprive a judge of this

4

immunity.” Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988). Moreover,

5

“judicial immunity is not overcome by allegations or bad faith or malice . . . .” Mireles v.

6

Waco, 502 U.S. 9, 11 (1991).

7

Here, Plaintiffs are suing the Defendants in their official capacities, thus a judicial

8

immunity defense is unavailable. In Kentucky v. Graham, the Supreme Court explained

9

that personal immunity does not bar official capacity suits:

10

12

When it comes to defenses to liability, an official in a personal-capacity action
may, depending on his position, be able to assert personal immunity defenses[.] In
an official-capacity action, these defenses are unavailable. The only immunities
that can be claimed in an official-capacity action are forms of sovereign immunity
that the entity, qua entity, may possess, such as the Eleventh Amendment.

13

473 U.S. 159, 167–68 (1985) (internal citations and footnote omitted); see also Pulliam v.

14

Allen, 466 U.S. 522, 541–542 (1984) (“We conclude that judicial immunity is not a bar to

15

prospective injunctive relief against a judicial officer acting in her judicial capacity.”).

16

Accordingly, judicial immunity does not bar this action.

11

17

D.

Legislative Immunity

18

Defendants also assert that “if Plaintiffs had” made allegations related to the

19

adoption of the challenged AOM Rule, they would have absolute legislative immunity.

20

(Doc. 54 at 7.) The Second Amended Complaint, however, does not include allegations

21

related to the adoption of the AOM Rule at issue and thus does not implicate the

22

legislative immunity doctrine.

23

immunity might have barred other claims that Plaintiffs could have brought.

The Court declines to speculate whether legislative

24

E.

Article III Justiciability Doctrines

25

Defendants next argue that this case does not present a justiciable case or

26

controversy, as Article III requires. They argue that the NAAMJP, Girvin, Kolman, and

27

Anderson lack standing to challenge Arizona’s AOM Rule because they lack the requisite

28

- 17 -

1

injury. (Doc. 54 at 8-11.) Plaintiffs assert that they having standing because they are

2

injured by Arizona’s “tit-for-tat bar admission rules.” (Doc. 70, Ex. 1 at 2.)
1.

3

The NAAMJP’s Standing

4

Defendants assert that the NAAMJP does not have standing to bring this action

5

because it cannot be the “object of the challenged AOM Rule and accordingly lacks the

6

injury required by Article III.” (Doc. 54 at 8.) The standing doctrine ensures that a

7

plaintiff’s claims arise in a “concrete factual context” appropriate to judicial resolution.

8

Valley Forge Christian Coll. v. Ams. United For Separation of Church & State, Inc., 454

9

U.S. 464, 472 (1982). Standing ensures that the proper party has brought suit. To

10

establish standing, a plaintiff must show that he has suffered a concrete injury, that there

11

is a causal connection between his injury and the defendant’s conduct, and that the injury

12

will likely be redressed by a favorable decision. United States v. Hays, 515 U.S. 737,

13

742-43 (1995) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

14

The party invoking federal jurisdiction bears the burden of establishing standing. Lujan,

15

504 U.S. at 561; see also Warth v. Seldin, 422 U.S. 490, 518 (1975) (“It is the

16

responsibility of the complainant clearly to allege facts demonstrating that he is a proper

17

party to invoke judicial resolution of the dispute and the exercise of the court’s remedial

18

powers.”).

19

a.

Third-Party Standing

20

The NAAMJP argues that it has third-party standing to assert claims for attorneys

21

who are not before the Court and “who wish to remain anonymous.” (Doc. 36 at 5.)

22

Plaintiffs allege that the unnamed attorneys, who are members of the NAAMJP, are

23

“stigmatized, slandered, and humiliated by the Rule 34(f) blanket presumption that they

24

are not competent in their profession.” (Doc. 36 at 5.) These allegations do not confer

25

standing on the NAAMJP.

26

A litigant may bring a case on behalf of a third party in limited circumstances

27

when: “‘(1) the litigant has suffered an injury in fact, giving him a sufficiently concrete

28

interest in the outcome of the issue; (2) the litigant has a close relation to the third party;

- 18 -

1

and (3) there exists some hindrance to the third party’s ability to protect his own

2

interest.’” Nat’l Ass’n for Advancement of Multijurisdiction Practice v. Gonzales, 2006

3

WL 3779792, at *3-4 (3d Cir. Dec. 21, 2006) (quoting Taliaferro v. Darby Twp. Zoning

4

Bd., 458 F.3d 189 n. 4 (3d Cir. 2006)). The NAAMJP has not met these requirements.

5

Even assuming that the NAAMJP has shown some injury and that there is a

6

sufficient relationship between the NAAMJP and its unnamed attorney members, the

7

NAAMJP fails to show how these attorneys are unable to protect their own interests.

8

Accordingly, the NAAMJP does not have third-party standing. See Gonzales, 2006 WL

9

3779792, at *3 (finding that unnamed attorneys that allegedly suffered injuries due to

10

district courts’ local rules on admission pro hac vice did not confer standing on the

11

NAAMJP).
b.

12

First Amendment Standing

13

The NAAMJP also asserts that it has standing to challenge Arizona’s AOM Rule

14

because it is a corporation with a federal right to petition for redress of grievances and

15

“state restrictions on that federal right are subject to First Amendment scrutiny.”

16

(Doc. 36 at 5.) The NAAMJP essentially argues that because the NAAMJP has First

17

Amendment rights, it has standing to challenge Arizona’s AOM Rule. In support of that

18

assertion, the NAAMJP relies on Citizens United v. Fed. Election Comm., 558 U.S. 310

19

(2010). The NAAMJP’s reliance on Citizens United is misplaced.

20

In Citizens United, the Supreme Court considered a non-profit corporation’s

21

constitutional challenges to certain provisions of the Bipartisan Campaign Reform Act of

22

2002.

23

restrictions based on a speaker’s corporate identity.” Id. at 337. Thus, Citizens United

24

would support the NAAMJP’s position if it were asserting that it has standing to assert

25

that its political speech was restricted because of its corporate identity.

26

however, does not involve the NAAMJP’s political speech or any infringement on its

27

First Amendment rights. Therefore, the NAAMJP does not have standing to assert the

The Court held “that the First Amendment does not allow political speech

28

- 19 -

This case,

1

constitutional claims alleged in the Second Amended Complaint because it has not

2

suffered the requisite injury.

3

2.

Girvin’s and Anderson’s Standing

4

Defendants also argue that Girvin and Anderson cannot assert the claims in the

5

Second Amended Complaint because they do not satisfy Article III’s “case or

6

controversy” requirements. (Doc. 54 at 9.) The exercise of judicial power under Article

7

III of the Constitution depends on the existence of a case or controversy. Preiser v.

8

Newkirk, 422 U.S. 395, 401 (1975). Federal plaintiffs “‘must allege some threatened or

9

actual injury resulting from the putatively illegal action.’” O’Shea v. Littleton, 414 U.S.

10

488, 493 (1974) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 (1973)). Abstract

11

or hypothetical injury is not sufficient. Plaintiffs must allege that they “have sustained or

12

[are] immediately in danger of sustaining some direct injury” as a result of the challenged

13

statute or official conduct. Mass. v. Mellon, 262 U.S. 447, 488 (1923). The injury or

14

threat of injury must be both “real and immediate,” and not “conjectural” or

15

“hypothetical.” E.g., Golden v. Zwickler, 394 U.S. 103, 109–110 (1969).

16

Defendants argue that Girvin and Anderson have not demonstrated that as a result

17

of Arizona’s AOM Rule they have suffered an injury that may be legally redressed.12

18

Girvin does not allege that she applied for admission on motion to the Arizona Bar or that

19

the AOM Rule has prevented her from seeking to practice law in Arizona. (Doc. 36 at

20

38.) Accordingly, Girvin has not presented this Court with a justiciable claim related to

21

Arizona’s AOM Rule, and this Court lacks jurisdiction over her constitutional challenges

22

to that rule. See Arthur v. Sup. Ct. of Iowa, 709 F. Supp. 157, 162 (S.D. Iowa 1989)

23

(dismissing plaintiffs’ claims for lack of standing because they had not applied for

24

admission to the Iowa Bar under the challenged rule); Nat’l Ass’n of Multijurisdiction

25

Practice, 2006 WL 3779792, at *3 (finding that NAAMJP’s attorney members had not

26
12

27
28

Defendants also argue that Girvin and Kolman lack standing to raise
Privileges and Immunities and Commerce Clause claims because they are residents of
Arizona. (Doc. 54 at 10.) The Court addresses Plaintiffs’ ability to pursue these claims
in Section VI.C. Defendants do not challenge Girvin’s standing to assert her retaliation
claim, which the Court addresses in Section VI.A. (Doc. 54 at 9; Doc. 36 at 8.)
- 20 -

1

suffered any injury because there was no showing that they had applied to practice in the

2

federal district courts or that they would seek to practice there but-for the local rules).

3

Anderson also has not applied to practice in Arizona, but he alleges that he has not

4

moved to Arizona and applied to practice law because of the AOM Rule. (Anderson

5

Decl. ¶¶ 1-2.) In Paciulan, 38 F. Supp. 2d at 1135-36, the court considered the plaintiffs’

6

constitutional challenges to California’s rules on pro hac vice admission, even though

7

plaintiffs had not alleged that they had applied for pro hac vice status in a particular state

8

court proceeding and that they were denied such status. Id. at 1135. The court noted that

9

several Ninth Circuit decisions “note that standing may be found in circumstances like

10

[those before the court] where further application would be futile.” Id. (citing Desert

11

Outdoor Adv., Inc. v. City of Moreno Valley, 103 F.3d 814, 818 (9th Cir. 1996) (“Desert

12

and OMG also have standing to challenge the permit requirement, even though they did

13

not apply for permits, because applying for a permit would have been futile.”)). The

14

court did not resolve the issue of standing, but rather “assum[ed] for purposes of

15

argument that plaintiffs ha[d] standing, [and concluded that] plaintiffs ha[d] nevertheless

16

failed to state a claim.” Paciulan, 38 F. Supp. 2d at 1136. Here, even assuming that

17

Anderson has standing to challenge Arizona’s AOM Rule, as discussed below,

18

Defendants are entitled to summary judgment on his claims.

19

F.

Exhaustion

20

Defendants further argue that Kolman, Girvin, and Anderson have not exhausted

21

their claims because they have “not petitioned the Arizona Supreme Court for changes to

22

the AOM Rule in order to initiate discussion about admission on motion in the

23

appropriate state forum.” (Doc. 54 at 11.) Defendants argue that because the AOM Rule

24

is a matter of substantial state interest, Plaintiffs should seek changes through state

25

channels. In support of this assertion, Defendants cite In re Griffiths, 413 U.S. 717, 723

26

1973). The Griffiths decision recognized that a state has “a constitutionally permissible

27

substantial interest in determining whether a [state bar] applicant possesses ‘the character

28

and general fitness requisite for an attorney or counsel-at-law.’”

- 21 -

Id. (quoting Law

1

Students Research Council v. Wadmond, 401 U.S. 154, 159 (1971)). That decision,

2

however, did not address exhaustion of challenges to a state bar’s rules related to

3

admission processes.

4

required to exhaust their claims by seeking an amendment to the AOM Rule because their

5

claims are subject to summary judgment, as discussed below.

Here, the Court need not determine whether Plaintiffs were

6

G.

Conclusion Regarding Potential Bars to Plaintiffs’ Claims

7

As set forth above, the Court has considered Defendants’ arguments that

8

Plaintiffs’ claims are barred or that the Court lacks jurisdiction over these claims The

9

Court finds that (1) the Eleventh Amendment does not bar Plaintiffs’ claims because the

10

Ex Parte Young exception applies to allow Plaintiffs’ claims, (2) under the Rooker-

11

Feldman doctrine, this Court lacks jurisdiction over Kolman’s “as applied” challenges to

12

Arizona’s AOM Rule and his motion for admission to the Arizona Bar because those

13

claims seek review of a state court judgment, (3) the Rooker-Feldman doctrine does not

14

bar Girvin’s procedural due process claim based on her failing bar score because that

15

claim does not challenge a state court judgment, (4) the Rooker-Feldman doctrine does

16

not bar Plaintiffs’ general challenges to the AOM Rule because the Court has jurisdiction

17

to consider facial attacks on the rule, (5) the Defendants are not entitled to judicial

18

immunity, which is a form of personal capacity immunity, because they have been sued

19

in their official capacities, (6) the Court will not speculate on whether legislative

20

immunity would apply to bar arguments that Plaintiffs have not asserted, (7) the

21

NAAMJP does not have standing to assert claims on behalf of its attorney members,

22

(8) the Court lacks jurisdiction over Girvin’s constitutional challenges to the AOM Rule,

23

except her retaliation claim, because she has not alleged that she suffered an injury as a

24

result of the AOM Rule, and (9) the Court will not determine whether Plaintiffs were

25

required to exhaust their claims by seeking a rule change prior to filing suit.

26

In the absence of any disputed facts, Defendants are entitled to summary judgment

27

on Kolman’s “as applied” challenges, Girvin’s challenges to the AOM Rule, except her

28

- 22 -

1

retaliation claim, and the NAAMJP’s claims.13 Because Plaintiffs’ other claims are not

2

barred by immunity or lack of jurisdiction, in the following sections the Court addresses

3

Girvin's First Amendment retaliation claim, Girvin’s, Kolman’s and Anderson’s

4

arguments that the AOM Rule facially violates the First Amendment, Anderson’s claims

5

under the Privileges and Immunities Clauses, and Plaintiffs’ Dormant Commerce Clause,

6

equal protection, and due process claims. .

7

VI.

Analysis of Plaintiffs’ Claims

8

A.

Girvin’s First Amendment Retaliation Claim

9

In Count I of the Second Amended Complaint, Girvin alleges that “defendants’

10

agents” failed her by one point on the July 12, 2012 Arizona UBE to retaliate against her

11

for “exercising her constitutional right to petition.”14 (Doc. 36 at 38-39.) Girvin alleges

12

that “the defendants’ agents have expressly stated an intention to retaliate, and they have

13

set out to ruin plaintiff’s career for exercising her constitutional right to petition.” (Id.)

14

Girvin contends that her scores are of passing quality and that she demonstrated more

15

than a minimum level of competence in her answers. (Id. at 39.) She contends that

16

Arizona’s test results are “secret, final, and not reviewable.” (Id.)

17

In her declaration, Girvin avers that she “believe[s] this failing score is the result

18

of retaliation against [her] by agents of the defendants.” (Girvin Decl ¶ 16.) She further

19

declares that “defendants’ agents have expressly stated in blunt and unambiguous terms

20

an intention to retaliate, asserting they would ruin [her] attorney’s career if he did not

21

dismiss the lawsuit.”

22

admissible because they are “speculation, opinion, and hearsay.” (Doc. 54 at 12.)

(Id. ¶ 17.)

Defendants argue that these statements are not

23
24
25
26
27
28

13

The Court could dismiss these claims under Rule 12(b)(1) or (b)(6), or
enter summary judgment under Rule 56. Because Defendants assert the same arguments
in their motion to dismiss and their motion for summary judgment, and because Plaintiffs
have also filed a motion for summary judgment, the Court will apply the summary
judgment standard and rule on that basis.
14

Pursuant to its prior order striking paragraph 73 of the Second Amended
Complaint, (Doc. 83), the Court will not consider the allegations in that paragraph.
- 23 -

1

The Ninth Circuit has held that a free speech retaliation claim is cognizable under

2

section 1983. See e.g., Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir.

3

1989) (“Deliberate retaliation by state actors against an individual’s exercise of [the right

4

to petition the government for redress of grievances] is actionable under section 1983.”);

5

see also Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 283–84 (1977). Although

6

it is not expressly mentioned in the Constitution, retaliation is actionable because

7

retaliatory actions may chill an individual’s exercise of constitutional rights. See Perry v.

8

Sindermann, 408 U.S. 593, 597 (1972). A plaintiff may demonstrate a First Amendment

9

retaliation claim by showing that defendants intended to interfere with the plaintiff’s

10

exercise of his First Amendment rights, and the defendants’ acts “would chill or silence a

11

person of ordinary firmness from future First Amendment activities.” See Mendocino

12

Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300-01 (9th Cir. 1999); see also Pinard

13

v. Clatskanie Sch. Dist., 467 F.3d 755 (9th Cir. 2006).

14

Here, to establish Defendants’ liability under § 1983, Girvin must show that

15

Defendants personally participated in the alleged deprivation of her First Amendment

16

rights. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (“In order for a person

17

acting under color of state law to be liable under § 1983 there must be a showing of

18

personal participation in the alleged rights deprivation.”) A plaintiff must link the named

19

defendants to the violation at issue. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009);

20

Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010). Liability may

21

not be imposed under the theory of respondeat superior, Iqbal, 556 U.S. at 676; Ewing v.

22

City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009), and administrators may only be

23

held liable if they “participated in or directed the violations, or knew of the violations and

24

failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

25

Additionally, retaliation is not established simply by showing adverse activity by a

26

defendant after protected speech; rather, plaintiff must show a nexus between the

27

protected speech and the adverse action. See Huskey v. City of San Jose, 204 F.3d 893,

28

899 (9th Cir. 2000).

- 24 -

1

Here, Girvin alleges that her failing score on the July 2012 Arizona UBE was

2

motivated by the desire of “Defendants’ agents” to retaliate against her for filing this

3

lawsuit against Defendants. Girvin’s claims are directed at unidentified “agents” of

4

Defendants who are not parties to this action. She alleges that “defendants’ agents”

5

retaliated against her for filing this action and “have expressly stated an intention to

6

retaliate, and they have set out to ruin plaintiff’s career” or to ruin her attorney’s career.

7

(Doc. 39 at 38-39.) The Second Amended Complaint lacks specific factual allegations

8

connecting each individually named Defendant to the alleged retaliatory conduct. The

9

allegations do not specify what role each Defendant played in the described conduct and

10

how each Defendant caused, or failed to correct, the alleged harm. In short, Girvin fails

11

to show an affirmative link between the alleged injury and the conduct of the named

12

Defendants. See Rizzo v. Goode, 423 U.S. 362, 371-72 (1976). “[A] plaintiff must plead

13

that each Government-official defendant, through the official’s own individual actions,

14

has violated the Constitution.” Iqbal, 556 U.S. 662. Each defendant may only be liable

15

for misconduct directly attributed to him or her because there is no vicarious or

16

respondeat superior liability under § 1983. Iqbal, 556 U.S. at 677-79; see also Darchak

17

v. City of Chicago Bd. of Educ., 580 F.3d 622, 629 (7th Cir. 2009).

18

Because § 1983 does not provide for respondeat superior or vicarious liability,

19

Girvin’s retaliation claim against “defendants’ agents” fails as a matter of law. See Mann

20

v. Brenner, 2010 WL 1220963, at *2 (3d Cir. Mar. 30, 2010) (dismissing a First

21

Amendment retaliation claim and noting that vague and conclusory allegations that

22

plaintiff was assessed an unreasonable fine in retaliation for using the legal process failed

23

to state a claim); Davis v. Ramen, 2008 WL 39700869, at *6 (E.D. Cal. Aug. 22, 2008)

24

(dismissing First Amendment retaliation claim based on plaintiff’s failure to “link each

25

named defendant with affirmative act or omission that demonstrates a violation of

26

plaintiff’s federal rights.”).

27

Moreover, Girvin has not presented evidence to create a factual dispute over

28

whether “defendants’ agents” assigned a failing score to her on the July 2012 Arizona

- 25 -

1

UBE in retaliation for her participation in this lawsuit. Defendants, however, have

2

presented evidence that the Committee on Examination consists of twelve members and

3

its duties include administering and grading the Arizona Bar exam. (DSOF ¶ 12.)

4

Although members of the Committee on Examination (Examiners) may be responsible

5

for grading a specific examination question, not every Examiner is assigned a question to

6

grade. (Id.) When an Examiner is assigned a question to grade, he is responsible for

7

overseeing the grading process and directing grading activities, including recording and

8

reporting scores. (DSOF ¶ 12.) Graders help the Examiners with these duties. Graders

9

read the exam answers, analyze the answers, and assign a grade to the answers. The

10

Graders report that grade to the Examiner. (Id.) Defendants have provided the Court

11

with declarations from the Graders and Examiners who scored the Arizona UBE

12

administered on July 24 and July 25, 2012. (DSOF Exs. B and C; Doc. 62.) Plaintiffs

13

object to these declarations as immaterial. (Doc. 70, Ex. 1 at 3.) Plaintiffs’ objection is

14

unfounded. The Examiner and Grader declarations are relevant to the grading of the July

15

2012 Arizona UBE, which is at issue in Girvin’s retaliation claim.

16

The exams are graded anonymously. (DSOF ¶ 14.) Bar applicants are assigned a

17

random identification (ID), which is the only identifier on the answers viewed by the

18

Examiner and the Grader.

19

applicants are conducted using the applicant’s ID, not the applicant’s name or other

20

specific identifying information. (Id.) There were eight written questions on the July

21

2012 Arizona UBE. (DSOF ¶ 17.) Eight Examiners and thirteen Graders participated in

22

the grading process. (Id.) The only people involved in grading the exams and issuing

23

grades were the Examiners assigned to a particular question, and the Graders assigned to

24

assist the Examiners. (Id. at ¶ 20.) None of the Examiners or Graders who participated

25

in the grading process for the July 2012 Arizona Bar exam had any knowledge of the

26

name of the person whose exam they graded at any point during or after the grading

27

process. (Id. at ¶¶ 21, 22.)

(Id.)

Communications regarding answers, grades, and

28

- 26 -

1

Girvin does not present any facts, or even allege any facts, to raise a genuine issue

2

that the Defendants directed any of the Examiners or Graders to assign a particular, or a

3

failing, grade to Girvin’s Arizona UBE. (Doc. 36 at 38-39; Doc. 70, Ex. 1 ¶¶ 14-15, 20-

4

23.) Although Girvin speculates that someone other than the Graders and Examiners,

5

such as an unidentified “licensing official,” must have been involved in grading her July

6

2012 Arizona UBE (Doc. 70, Ex. 1 ¶¶ 14-15, 19, 20-23), her unsupported allegations are

7

not sufficient to create a genuine issue of disputed fact.

8

Girvin further alleges that failing Arizona’s UBE by one point is uncommon and

9

thus her failure by that margin is evidence of retaliation. (Doc. 70, Ex. 1 ¶ 24.) Contrary

10

to Girvin’s assertion, her failure by one point does not support a finding of retaliation.

11

Five applicants for the July 2012 bar exam scored one point below passing. (DSOF

12

¶ 24.) There is no evidence that any of those applicants had filed a lawsuit against the

13

Arizona Supreme Court or any Arizona Supreme Court Justice before failing the UBE.

14

Girvin’s assertion that few applicants fail the Arizona UBE by one point does not create a

15

genuine issue of disputed material fact regarding retaliation against her for participating

16

in this lawsuit.15 In summary, Girvin’s retaliation claim fails as a matter law because she

17

has not linked any of the Defendants with the alleged retaliation. Moreover, she fails to

18

create a genuine issue of material fact regarding retaliation against her for participating in

19

this lawsuit. Therefore, Defendants are entitled to summary judgment on Girvin’s First

20

Amendment retaliation claim.

21
22
15

23
24
25
26
27
28

Under Arizona law, only the Arizona Supreme Court, not the Committee of
Bar Examiners, has the authority to grant or deny admission to the bar. Ariz. R. Sup. Ct.
31. An applicant aggrieved by a decision of that Committee, may seek review in the
Arizona Supreme Court. Ariz. R. Sup.Ct. 36(g)(1). (Doc. 54 at 16) Defendants argue
that because Girvin did not petition the Arizona Supreme Court for review of the
Committee of Bar Examiners’ assignment of a failing grade, the court could not have
retaliated against her, and therefore no deprivation of a constitutional right has taken
place. (Doc. 54 at 16 (citing Giannini v. State Bar of Cal., 206 Fed. Appx. 672 (9th Cir.
2006) (denying First Amendment retaliation claim alleging state bar assigned him a
failing grade for advocating in favor of admission on motion without reciprocity because
he did not petition the state supreme court for review).) Because the Court has
determined that Girvin’s retaliation claim fails on other grounds, the Court does not
resolve this issue.
- 27 -

1

B.

2

Plaintiffs argue that Arizona’s AOM Rule impermissibly infringes on their First

3

Amendment rights to free speech, association, and to petition in a public forum. (Doc. 36

4

at 32-38.) As previously discussed in Section V.B, Plaintiffs’ “as applied” claims are

5

barred and the Court’s review is limited to Plaintiffs’ facial challenge to Arizona’s AOM

6

Rule. “A facial challenge to a legislative Act is, of course, the most difficult challenge to

7

mount successfully, since the challenger must establish that no set of circumstances exists

8

under which the Act would be valid.” Rust v. Sullivan, 500 U.S. 173, 183 (1991).

9

Plaintiffs have not met this strict standard.

10

First Amendment Free Speech, Association, and Petition Claims

1.

Content/View Point Discrimination and Breadth of Rule 34(f)

11

Plaintiffs contend that Arizona’s AOM Rule discriminates on the basis of content

12

and viewpoint because it “denies one group of citizens the right to address selected

13

audiences on controversial issues of public policy . . . .” (Doc. 36 at 32) (quoting Consol.

14

Edison Co. v. Pub. Serv. Comm’n, 447 U.S. 530, 546 (1980)). Plaintiffs assert that

15

Arizona’s AOM Rule discriminates on the basis of content and viewpoint because “it

16

permits attorneys from reciprocity states to obtain a license and petition the courts and

17

speak; whereas it categorically prohibits attorneys from non-reciprocity states the same

18

precious freedoms.” (Doc. 36 at 32.) Plaintiffs further argue that Arizona’s AOM Rule

19

is overly broad because it “chills more speech than necessary by categorically excluding

20

lawyers from non-reciprocity states.” (Doc. 36 at 34.)

21

Contrary to Plaintiffs’ assertion, Arizona’s AOM Rule does not “categorically

22

prohibit” attorneys admitted to practice in non-reciprocity states from admission to

23

practice law in Arizona. Rather, these attorneys may obtain a license to practice law in

24

Arizona by taking the Arizona UBE or by transferring a UBE score from another

25

jurisdiction. See Ariz. R. Sup. Ct. 34(a). Admission on motion is not the only method of

26

admission to the Arizona Bar. Furthermore, the AOM Rule does not improperly “make

27

differential licensing distinctions based on a speaker’s identity as a member of a favored

28

or disfavored bar.” (Doc. 36 at 34.) Although Arizona’s AOM Rule distinguishes

- 28 -

1

between attorneys who were admitted to practice in states that Arizona deems reciprocal

2

and attorneys who were not admitted to practice in such states, that distinction does not

3

violate the First Amendment.

4

The Ninth Circuit recognizes that “states traditionally have enjoyed the sole

5

discretion to determine qualifications for bar membership,” and has upheld regulations on

6

bar membership against First Amendment challenges. See Paciulan, 38 F. Supp. 2d at

7

1137 (N.D. Cal. 1999) (state rule permitting pro hac vice admission for non-residents, but

8

not for residents licensed to practice law in other states, did not constitute impermissible

9

speaker discrimination in violation of the First Amendment); see also United Mine

10

Workers of Am. v. Ill. State Bar Ass’n, 389 U.S. 217, 222 (1967) (“the States have broad

11

power to regulate the practice of law”). The Supreme Court has explained that the

12

“interest of the States in regulating lawyers is especially great since lawyers are essential

13

to the primary governmental function of administering justice, and have historically been

14

‘officers of the courts.’” Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975).

15

In addition, “to further its substantial interest in regulating the legal profession, the

16

State of Arizona may institute reasonable time, place, and manner restrictions on

17

Arizonans’ First Amendment right to consult with an attorney.” Mothershed, 410 F.3d at

18

611 (upholding Arizona’s rule on pro hac vice admissions against First Amendment

19

challenge). Arizona may also institute reasonable time, place, and manner restrictions on

20

the practice of law in Arizona. See Paciulan, 38 F. Supp. 2d at 1137 (the practice of law

21

is protected speech under the First Amendment). Time, place, and manner regulations

22

are reasonable “provided the restrictions ‘are justified without reference to the content of

23

the regulated speech, that they are narrowly tailored to serve a significant governmental

24

interest, and that they leave open ample alternative channels for communication of the

25

information.’” Kuba v. 1-A Agric. Ass’n, 387 F.3d 850, 858 (9th Cir. 2004) (quoting

26

Ward v. Rock Against Racism, 491 U.S. 781, 79 (1989) (internal quotation marks

27

omitted)).

28

- 29 -

1

“The principal inquiry in determining content neutrality . . . is whether the

2

government has adopted a regulation of speech because of disagreement with the

3

message it conveys. Speech restrictions are content-neutral when they can be justified

4

without reference to the content of the regulated speech.” Honolulu Weekly, Inc. v.

5

Harris, 298 F.3d 1037, 1043 (9th Cir. 2002) (internal quotation marks and citation

6

omitted). Rule 34(f) is content-neutral because it establishes eligibility requirements for

7

admission on motion without regard to the area of law the bar applicant intends to

8

practice. In other words, that rule does not limit admission on motion to attorneys based

9

on the attorney’s area of practice or the attorney’s actual or prospective clients. See

10

Mothershed, 410 F.3d at 612 (finding Arizona’s pro hac vice rules “content-neutral

11

because they impose a generally applicable prohibition on the retention of out-of-state

12

counsel without regard to the subject matter of the representation.”).

13

A time, place, and manner regulation is narrowly tailored if the substantial

14

governmental interest it serves “would be achieved less effectively absent the regulation

15

and the regulation achieves its ends without . . . significantly restricting a substantial

16

quantity of speech that does not create the same evils.” Galvin v. Hay, 374 F.3d 739, 753

17

(9th Cir. 2004) (internal quotation marks omitted; alteration in original). The State of

18

Arizona has a substantial interest in regulating the practice of law within the state. See

19

Bates, 433 U.S. at 361 (“the regulation of the activities of the bar is at the core of the

20

State’s power to protect the public”). Rule 34(f) furthers that interest by “secur[ing] for

21

[Arizona] attorneys who decide to relocate, the advantage of favorable terms of

22

admission to another state’s bar by offering that same advantage to attorneys of such

23

other states that reciprocate.” See Schumacher v. Nix, 965 F.2d 1262, 1271-72 (3d Cir.

24

1992) (finding that bar admission rule prohibiting graduates from unaccredited law

25

schools from sitting for Pennsylvania’s bar examination, except such graduates who were

26

members in good standing of a bar of a ‘reciprocal state’ and who had practiced law in

27

that state for five years, was rationally related to the state’s interest in securing mutual

28

treatment for its attorneys seeking admission to the bar of another state). Finally, the

- 30 -

1

Arizona rules offer several additional avenues through which attorneys may gain

2

admission to the Arizona Bar. See Ariz. Sup. Ct. R. 34(a). Because Arizona’s AOM

3

Rule is a reasonable time, place, and manner regulation, Plaintiffs’ claims that the rule

4

violates the First Amendment because it discriminates on the basis of content and

5

viewpoint, and because it is overly broad, fail as a matter of law. Defendants are entitled

6

to summary judgment on this claim.
2.

7

Prior Restraint on Speech

8

Plaintiffs further contend that Arizona’s AOM Rule is a “prior restraint” on speech

9

that “categorically excludes” attorneys from non-reciprocity states from Arizona

10

courtrooms before they have a chance to appear. (Doc. 36 at 36.) “[P]rior restraint

11

analysis is triggered by the existence of official discretion to deny the use of a given

12

forum for First Amendment protected activity.” Jersey’s All-Am. Sports Bar, Inc. v.

13

Wash. State Liquor Control Bd., 55 F. Supp. 2d 1131, 1137 (W.D. Wash. 1999). Thus, a

14

prior restraint exists when the enjoyment of protected expression is contingent upon the

15

approval of government officials. Near v. State of Minn. ex rel Olson, 283 U.S. 697, 713

16

(1931). For example, a prior restraint exists when a permit or license requirement places

17

unchecked discretion in the hands of a government official. See City of Lakewood v.

18

Plain Dealer Publ’g Co., 486 U.S. 750, 757 (1988) (citations omitted).

19

In support of their claim that Arizona’s AOM Rule is an improper prior restraint

20

on speech, Plaintiffs rely on several cases, including Legal Services Corp. v. Velazquez,

21

531 U.S. 533 (2001). These cases do not support a finding that Arizona’s AOM Rule is

22

an improper prior restraint on speech.16 (Doc. 36 at 35; Doc. 69 at 29-31.) In Legal

23

Services, the Court considered limitations on a non-profit corporation’s distribution of

24

Congressionally-appropriated funds to grantee organizations that provide free legal

25
16

26
27
28

See Doc. 69 at 20-25 (citing e.g., Citizens United, 558 U.S. at 337 (“the
First Amendment does not allow political speech restrictions based on a speaker’s
corporate identity”); Consol. Edison., 447 U.S. at 544 (suppression of inserts discussing
controversial public policy issues in public utility’s monthly bills infringed on the First
Amendment); Romer v. Evans, 517 U.S. 620, 627-636 (1996) (amendment to Colorado
Constitution that prohibited all state or local government action designed to protect
homosexuals from discrimination violated the Equal Protection Clause)).
- 31 -

1

assistance to indigent clients, including clients seeking welfare benefits. Id. at 537.

2

Congress prohibited the plaintiff corporation from funding any organization representing

3

clients seeking to amend or challenge existing welfare law. Id at 538. The Court found

4

that this funding restriction violated the First Amendment because it was “aimed at the

5

suppression of ideas inimical to the Government’s own interests.” Id. at 549. The Court

6

in Legal Services did not analyze the funding restriction at issue as a prior restraint on

7

speech.

8

Moreover, even if Arizona’s AOM Rule could be considered a restriction on an

9

attorney’s ability to express himself in the form of litigation, the AOM Rule contains

10

objective standards that are amenable to judicial review and does not permit licensing

11

decisions at the “whim” of the Arizona Supreme Court. See Ariz. R. Sup. Ct. 34(f);

12

Thomas v. Chicago Park Dist., 534 U.S. at 323 (restriction on free expression must

13

“contain adequate standards to guide the official’s discretion and render it subject to

14

effective judicial review.”) Furthermore, although the Supreme Court has held that

15

litigation and the right to hire counsel may be entitled to First Amendment protection, see

16

Ill. State Bar Ass’n, 389 U.S. at 221-22, the First Amendment is not an absolute bar to

17

government regulation on free expression and association. See NAACP v. Button, 371

18

U.S. 415, 453 (1963).

19

Plaintiffs have not shown that Arizona’s AOM Rule creates an improper prior

20

restraint on speech as a matter of law and have not shown that there is a genuine dispute

21

of material fact on that issue.17 Accordingly, Defendants are entitled to summary

22

judgment on Plaintiffs’ claim that Arizona’s AOM Rule is an improper prior restraint on

23

speech in violation of the First Amendment. See In re Gadda, 2006 WL 322515, at *2

24

(9th Cir. Dec. 7, 2006) (finding that court’s order precluding attorney from reapplying for

25

admission to bar of the district court until he satisfied a key membership requirement —

26

establishing that he was a member of the California Bar — was not an unconstitutional

27
17

28

Although Defendants did not specifically address Plaintiffs’ prior-restraint
argument, they addressed Plaintiffs’ First Amendment claims collectively and moved for
summary judgment on all of Plaintiffs’ First Amendment claims.
- 32 -

1

restraint on free speech); Gallo v. U.S. Dist. Ct. for the Dist. of Ariz., 349 F.3d 1169,

2

1184 (9th Cir. 2003) (finding that a requirement that an applicant for admission to a

3

district court’s bar must be a member in good standing of the bar of the state’s highest

4

court was “well within the District Court’s rule making power and . . . [did] not violate

5

any constitutional right.”) (internal citations omitted).

6

3.

Freedom of Association

7

Plaintiffs further argue that Arizona’s AOM Rule constitutes “compelled

8

association that abridges the First Amendment right of Freedom of Association . . . .”

9

(Doc. 36 at 36.) Plaintiffs argue that because Arizona’s AOM Rule denies admission on

10

motion to attorneys from non-reciprocal states, the rule abridges attorneys’ freedom to

11

associate with non-reciprocal states. Plaintiffs also assert that Arizona’s AOM Rule

12

improperly compels attorneys to associate with reciprocal states. (Doc. 36 at 37.)

13

The First Amendment includes “a right to associate with others in pursuit of a

14

wide variety of political, social, economic, educational, religious, and cultural ends.”

15

Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984) (citing cases). Plaintiffs have not cited

16

authority to support their argument that limiting admission on motion to reciprocating

17

states violates the First Amendment right of freedom of association. Indeed, under Ninth

18

Circuit precedent, Arizona’s AOM Rule does not violate the First Amendment right to

19

association because Arizona provides other paths for gaining admission to the Arizona

20

Bar. See Gordon v. State Bar of Cal., 2010 WL 750115 at *1 (9th Cir. Mar. 5, 2010)

21

(rejecting claim that California’s requirement that a bar applicant must have attended an

22

ABA-accredited school violated her First Amendment freedoms of association and non-

23

association “because attending an ABA-accredited school [was] not the only path for

24

qualifying for the California state bar examination . . . .”) (citing Besig v. Dolphin

25

Boating & Swimming Club, 683 F.2d 1271, 1276 (9th Cir. 1982) (rejecting plaintiffs’

26

First Amendment claim brought under non-association theory when membership in club

27
28

- 33 -

1

may have been more favorable but was not mandatory to access desired facilities)).18

2

Because there are no disputed issues of fact related to Plaintiffs’ claim based on a

3

violation of the First Amendment right of association, and Defendants are entitled to

4

judgment as a matter of law, the Court grants summary judgment in Defendants’ favor on

5

this claim.
4.

6

Right to Petition

7

Finally, Plaintiffs assert that Arizona’s AOM Rule violates the First Amendment

8

right to petition “because it arbitrarily and irrationally assumes that the Plaintiffs, and all

9

experienced lawyers from non-reciprocity states will file sham petitions for an anti-

10

competitive purpose, and only file sham petitions for an anti-competitive purpose unless

11

they take another entry level bar exam.” (Doc. 36 at 38; Doc. 69 at 32 (citing Prof’l Real

12

Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993) (discussing

13

the Supreme Court’s prior decision in E. R.R. Presidents Conference v. Noerr Motor

14

Freight, Inc., 365 U.S. 127 (1961), in which the Court held that immunity from antitrust

15

liability did not apply to “sham” activities).)

16

Plaintiffs’ arguments are derived from cases discussing the Sherman Act, not the

17

First Amendment.

Furthermore, Plaintiffs do not provide any support for their

18

allegations that the Arizona Supreme Court adopted Arizona’s AOM Rule because it

19

believed that attorneys from non-reciprocal states would violate rules of ethical and

20

professional conduct. Plaintiffs do not explain how their allegations support a claim that

21

Arizona’s AOM Rule violates their right to petition.

22

The First Amendment guarantees “the right of the people . . . to petition the

23

Government for a redress of grievances.” U.S. Const. amend. I. The right to petition

24

extends to all departments of the government, including the executive department, the

25
26
27
28

18

Similarly, in Paciulan, the court found that a California rule preventing
residents licensed to practice law in other states from gaining pro hac vice status in
California courts did not violate the First Amendment by preventing them from freely
associating with clients and other attorneys. 229 F.3d. at 1230. The court found that
under the plaintiffs’ “sweeping formulation of the First Amendment, any regulation of
bar membership would be deemed unconstitutional.” Id.
- 34 -

1

legislature, agencies, and the courts. Cal. Motor Transp. Co. v. Trucking Unlimited, 404

2

U.S. 508, 510 (1972).

3

The Arizona AOM Rule limits admission on motion to attorneys licensed in states

4

Arizona deems reciprocal.

5

“meaningful access to the courts” because they “may still bring their claims in [Arizona]

6

courts as litigants; they simply may not bring claims as lawyers without first satisfying

7

[Arizona’s] rules for admission to the state bar.” See Paciulan, 38 F. Supp. 2d at 1138

8

(rejecting plaintiffs’ claim that California’s rule on admission pro hac vice violated their

9

right of access to the court). In addition, Rule 34(a) provides several avenues for an

10

The AOM Rule, however, does not deny Plaintiffs

attorney to gain admission to the Arizona Bar.

11

“[P]laintiffs have not alleged a denial of their First Amendment rights simply

12

because they may not practice law in [Arizona] due to a failure to fulfill the requirements

13

for admission to the State Bar.” See id. Accordingly, Plaintiffs’ First Amendment right-

14

to-petition claim fails and the Court grants summary judgment in Defendants’ favor on

15

this claim.

16

C.

Privileges and Immunities Clauses Claims

17

In Count II of the Second Amended Complaint, Plaintiffs assert a violation of the

18

Privileges and Immunities Clauses of both Article IV, § 2 and of the Fourteenth

19

Amendment. (Doc. 36 at 39.) Plaintiffs argue that Arizona’s AOM Rule punishes non-

20

resident attorneys from non-reciprocity states by forcing them to take the Arizona UBE

21

although they have already passed another state’s bar examination. Plaintiffs assert that

22

Arizona’s AOM Rule prevents attorneys from non-reciprocal states from pursuing

23

professional pursuits and instituting legal actions in Arizona. (Id. at 41-42.)

24

As an initial matter, because Kolman and Girvin are Arizona residents, they have

25

no claim under the Privileges and Immunities Clauses. See Slaughter-House Cases, 83

26

U.S. (16 Wall.) 36, 77 (1873) (the Privileges and Immunities Clauses provide “no

27

security for the citizen of the state in which [the privileges] were claimed.”); United Bldg.

28

and Const. Trades Council of Camden Cnty. and Vicinity v. Mayor and Council of the

- 35 -

1

City of Camden, 465 U.S. 208, 217 (1984) (residents of New Jersey did not have a claim

2

under the Privileges and Immunities Clauses based on ordinance by a New Jersey city

3

requiring that at least 40% of employees and contractors working on city construction

4

projects be city residents). Thus, the Court considers only Anderson’s Privileges and

5

Immunities Clauses claims because he is a Montana resident.
1.

6

Article IV, § 2

7

Under the Privileges and Immunities Clause of Article IV, “[t]he Citizens of each

8

State shall be entitled to all Privileges and Immunities of Citizens in the several States.”19

9

U.S. Const. art. IV, § 2. This clause seeks to prevent “a state from discriminating against

10

citizens of other states in favor of its own.” Hague v. C.I.O., 307 U.S. 496, 511 (1939)

11

(holding that to establish a claim under the Privileges and Immunities Clause, plaintiffs

12

must allege discrimination on the basis of out-of-state residency). Article IV, § 2 protects

13

an individual’s right to “pursue a livelihood in a State other than his own.” Baldwin v.

14

Mont. Fish & Game Comm’n, 436 U.S. 371, 386 (1978). The Supreme Court has held

15

that the practice of law is considered a “privilege” for purposes of the Privileges and

16

Immunities Clause of Article IV, § 2. Sup. Ct. of N.H. v. Piper, 470 U.S. 274, 276-78

17

(1985).

18

Here, Arizona’s AOM Rule does not depend on a bar applicant’s residency and is

19

not a residency classification. See Ariz. R. Sup. Ct. 34(f). Rather, its application turns on

20

whether the state or states in which an attorney has “been admitted by bar examination,”

21

or in which an attorney has “been admitted to and engaged in the active practice of law

22

for at least five years,” allow reciprocity for licensed Arizona attorneys. Ariz. R. Sup. Ct.

23

34(f)(1)(A). This rule applies equally to Arizona residents and non-residents who seek

24

admission to the Arizona Bar on motion.

25

In the cases that Plaintiffs cite in support of their claim, the courts held that the

26

Privileges and Immunities Clause prohibits discrimination against out-of-state applicants

27
28

19

Under this Clause, the term “citizen” and “resident” are used
interchangeably. See Austin v. New Hampshire, 420 U.S. 656, 662 n.8 (1975).
- 36 -

1

for bar admission who met all of the necessary qualifications for bar membership except

2

for residence in the state. See Sup. Ct, of Va. v. Friedman, 487 U.S. 59 (1988); Piper,

3

470 U.S. 274. These cases are distinguishable because the Court was analyzing rules

4

with residency requirements.

5

requirement for admission to the bar. 470 U.S. at 277 n.1 (finding that New Hampshire

6

Supreme Court Rule excluding non-residents from the bar violated the Privileges and

7

Immunities Clause of Article IV, § 2). In Friedman, the Court found that Virginia’s

8

residency requirement for admission to the state’s bar without examination violated the

9

Privileges and Immunities Clause.20 Id. at 65-66. Here, contrary to Plaintiffs’ allegation

10

(Doc. 36 at 8-9), Arizona’s AOM Rule does not require Arizona residency as a

11

prerequisite to admission on motion to the Arizona Bar.

12

34(f)(1)(A)-(H). The rule applies equally to residents and non-residents who wish to

13

apply for admission on motion. Thus, the rule does not implicate Article IV, § 2.

In Piper, the challenged rule included a residency

See Ariz. R. Sup. Ct.

14

Relying on Hillside Dairy v. Lyons, 539 U.S. 59 (2003), Plaintiffs further argue

15

that discrimination on the basis of out-of-state residency is not a necessary element for a

16

violation of the Privileges and Immunities Clause. (Doc. 69 at 9-10), As Defendants

17

argue, Plaintiffs misinterpret Hillside Dairy. (Doc. 72 at 9.) In Hillside Dairy, the Court

18

did not hold that discrimination on the basis of out-of-state residency is no longer

19

required to establish a Privileges and Immunities Clause claim. Rather, the Court found

20

that a claim for a violation under the Privileges and Immunities Clause cannot be

21

dismissed merely because the challenged law does not discriminate against out-of-state

22

residents on its face. Id. at 67.

23

Here, Arizona’s AOM Rule does not discriminate against out-of-state citizens on

24

its face or as applied. Indeed, in a similar challenge to a reciprocity provision in an

25
20

26
27
28

In Friedman, the Court explained that “Piper establishes that a nonresident
who takes and passes an examination prescribed by the State, and who is otherwise
qualified for the practice of law, has an interest in practicing law that is protected by the
Privileges and Immunities Clause.” Id. at 65. “The clear import of Piper is that the
Clause is implicated whenever . . . a State does not permit qualified nonresidents to
practice law within its borders on terms of substantially equality with its own residents.”
Id. at 66.
- 37 -

1

admission on motion rule, the Fourth Circuit concluded that the reciprocity provision did

2

not violate Article IV, § 2 noting that the challenged state rule imposed the same

3

obligations on its citizens that it imposed on citizens of other states. See Hawkins v.

4

Moss, 503 F.2d 1171, 1180 (4th Cir. 1974) (upholding South Carolina Supreme Court

5

rule allowing an attorney licensed in another state to be admitted on motion to the South

6

Carolina Bar, provided the other state granted reciprocal rights to attorneys admitted to

7

practice in South Carolina). Thus, the Court concludes that Arizona’s AOM does not

8

implicate the Privileges and Immunities Clause of Article IV, § 2 and Defendants are

9

entitled to summary judgment on this claim.

10

2.

Fourteenth Amendment Privileges and Immunities Clause

11

Plaintiffs also assert that Arizona’s AOM Rule interferes with their right to

12

interstate travel to pursue their profession in violation of the Privileges and Immunities

13

Clause of the Fourteenth Amendment. (Doc. 36 at 39, 41; Doc. 69 at 18.) This Clause

14

has traditionally protected only those rights accruing from United States citizenship. See

15

e.g. Slaughter-House Cases, 83 U.S. at 77 (1872).

16

The Supreme Court did not specifically identify these privileges and immunities in

17

the Slaughter-House Cases, but included among them “some which owe their existence

18

to the Federal government, its National character, its Constitution, or its laws.” Id. “The

19

courts and legal commentators have interpreted the decision as rendering the Clause

20

essentially nugatory.” Paciulan, 229 F.3d at 1229 (citing Robert H. Bork, The Tempting

21

of America 180 (1990) (“[T]he privileges and immunities clause . . . has remained the

22

cadaver that it was left by the Slaughter–House Cases.”); Laurence H. Tribe, American

23

Constitutional Law 556 (2d ed. 1988) (“The Slaughter–House definition of national

24

rights renders the fourteenth amendment's privileges or immunities clause technically

25

superfluous[.]”); Kevin Christopher Newsom, Setting Incorporationism Straight: A

26

Reinterpretation of the Slaughter–House Cases, 109 Yale L.J. 643, 646 (2000) (“In

27

contemporary constitutional discourse, Slaughter–House stands for one simple truth: that

28

the Privileges or Immunities Clause is utterly incapable of performing any real work in

- 38 -

1

the protection of individual rights against state interference, and that any argument

2

premised on the Clause is therefore a constitutional non-starter.”)).

3

In Saenz v. Roe, however, the Supreme Court applied the Privileges and

4

Immunities Clause in a right-to-travel context to hold that travelers deciding to become

5

permanent residents of a new state have “the right to be treated like other citizens of that

6

State.”

7

assertion that Arizona’s AOM Rule violates that the Privileges and Immunities Clause of

8

the Fourteenth Amendment by restricting travel. (Doc. 36 at 41, Doc. 69 at 12.)

526 U.S. 489, 500-07 (1999).

Plaintiffs rely on Saenz in support of their

9

Plaintiffs’ reliance on Saenz is misplaced because Arizona’s AOM Rule treats

10

Plaintiffs like residents of Arizona who seek admission on motion. In Saenz, California

11

imposed a durational residency requirement on welfare benefits by limiting those benefits

12

during a recipient’s first year of California residency to the amount that the recipient

13

would have received in the state of his prior residence. Saenz, 526 U.S. at 1519. Unlike

14

Saenz, Arizona’s AOM Rule does not impose a durational residency requirement on

15

admission to the Arizona Bar. Additionally, Arizona’s AOM Rule promotes travel by

16

easing admission requirements for some out-of-state attorneys. Therefore, Plaintiffs’

17

Fourteenth Amendment Privileges and Immunities Clause claim fails and the Court

18

enters summary judgment in Defendants’ favor on this claim.

19

D.

Dormant Commerce Clause

20

In Count III of the Second Amended Complaint, Plaintiffs assert that Arizona’s

21

AOM Rule violates the Dormant Commerce Clause because it unreasonably burdens

22

interstate commerce by disqualifying “certain experienced attorneys from admission on

23

motion privileges . . . depending on prior state licensing.” (Doc. 36 at 42-44.) The

24

Dormant Commerce Clause prohibits “economic protectionism — that is regulatory

25

measures designed to benefit in-state economic interests by burdening out-of-state

26

competitors.” New Energy Co. v. Limbach, 486 U.S. 269, 273 (1988).

27

In this case, the burden to show that the challenged rule burdens interstate

28

commerce rests with Plaintiffs. See Hughes v. Oklahoma, 441 U.S. 322, 336 (1979)

- 39 -

1

(party challenging validity of rule bears of burden of showing that it discriminates against

2

interstate commerce). Plaintiffs must show “that the rule favors residents vis-a-vis non-

3

residents, either on its face or in its practical effects.” Shapiro v. Cooke, 552 F. Supp.

4

581, 588 (D.C.N.Y. 1982). When a state regulation promotes a legitimate local public

5

interest that has only incidental effects on commerce, the regulation is constitutional

6

unless the burden on commerce is excessive compared to the local benefits. Pike v.

7

Bruce Church, Inc., 397 U.S. 137, 142 (1970),

8

As Defendants argue, courts have found that states have a legitimate, substantial

9

interest in regulating the practice of law for public protection purposes. (Doc. 54 at 20

10

(citing Hawkins, 503 F.2d at 1175). The Supreme Court has recognized “the traditional

11

authority of state courts to control who may be admitted to practice before them.” Leis v.

12

Flynt, 439 U.S. 438, 444 n.5 (1979).21 Additionally, courts have recognized that “[i]f a

13

state may constitutionally require all applicants to take the examination, the Commerce

14

Clause is not offended by a rule which permits some, but not all, out-of-state attorneys to

15

be admitted on waiver of the examination.” Shapiro v. Cooke, 552 F. Supp. 581, 588

16

(D.C.N.Y. 1982).

17
18
21

19
20
21
22
23
24
25
26
27
28

Plaintiffs argue that Defendants erroneously rely on Leis v. Flynt, 439 U.S.
438 (1978) for the proposition that the practice of law is not a fundamental right because
Leis was overruled in United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), “in which
the Court held that the denial of a defendant’s right to out-of-state counsel admitted pro
hac vice is reversible error per se.” (Doc. 69 at 20.) Plaintiffs misconstrue GonzalezLopez.
In Leis, the Supreme Court held that an out-of-state attorney seeking to appear
pro-hac vice did not have an interest protected by the Due Process Clause of the
Fourteenth Amendment. 439 U.S. at 442. Contrary to Plaintiffs’ assertion, GonzalezLopez did not overrule that holding. In Gonzalez-Lopez, the Court recognized that
criminal defendants who have the means to hire their own attorneys have a Sixth
Amendment right to counsel of their choice. 548 U.S. at 144. The Court held that the
trial court’s erroneous deprivation of a criminal defendant’s choice of counsel — by
denying counsel admission pro hac vice — entitled him to reversal of his conviction. Id.
at 150. In Gonzalez-Lopez, the government conceded that the trial court had erroneously
denied defendant counsel of his choosing, thus, the Court did not consider the state’s pro
hac vice rules or determine whether refusing to grant pro hac vice status violated any
rights of counsel. The Court’s holding was based on the Sixth Amendment. It is not
applicable to this case and did not overturn the holding in Leis that the practice of law is
not a fundamental right for purposes of the Due Process Clause.
- 40 -

1

Moreover, the existence of alternative means for admission to the bar, such as the

2

Arizona UBE, undermines Plaintiffs’ Dormant Commerce Clause claim. See Scariano v.

3

Justices of Sup. Ct. of State of Ind., 38 F.3d 920, 927 (7th Cir. 1994) (“The requirement

4

that an applicant sit for the bar exam can hardly be deemed discriminatory when the vast

5

majority of Indiana attorneys have taken the exam. In the past, this court has found the

6

exam alternative significant under the Commerce Clause.”).

7

Plaintiffs further argue that Arizona’s AOM Rule burdens commerce by requiring

8

attorneys licensed in non-reciprocity states take an “entry level bar” examination.

9

(Doc. 36 at 43.) In support of this argument, Plaintiffs cite Wiesmueller v. Kosobucki,

10

571 F.3d 699 (7th Cir. 2009). In Wiesmueller, the court found that the Wisconsin

11

Supreme Court rule allowing graduates of the two state law schools to be admitted to

12

practice law in Wisconsin without taking the bar examination was subject to scrutiny

13

under the Commerce Clause. Id. at 707. The court found that “[i]t is enough that an

14

aspiring lawyer’s decision about where to study, and therefore, where to live as a student,

15

can be influenced by the diploma privilege to bring this case at least within the outer

16

bounds of the commerce clause; because the movement of persons across state lines, for

17

whatever purpose, is a form of interstate commerce.” Id. at 705. The Seventh Circuit

18

remanded the case to the district court to determine whether the diploma privilege

19

violated the Commerce Clause.

20

Unlike the rule at issue in Wiesmueller, Arizona’s AOM Rule applies equally to

21

residents of Arizona and non-residents and does not burden interstate commerce. Rather,

22

Arizona’s AOM Rule is a “means of making available reciprocal admissions to the

23

Arizona Bar” and it promotes interstate commerce by easing the admission requirements

24

for some out-of-state attorneys. See Golfarb v. Sup. Ct. of Va., 766 F.2d. 859, 863 (4th

25

Cir. 1985) (rejecting commerce clause challenge to Virginia rule admitting only those

26

out-of-state attorneys to the bar without examination who intended to practice full time in

27

Virginia). Thus, Arizona’s AOM Rule encourages cross-state or multi-state practice and

28

does not place an undue burden on interstate commerce. See Shapiro, 552 F. Supp. at

- 41 -

1

588 (noting that New York’s admission-on-motion rule “encourages and enhances”

2

interstate commerce by waiving the bar examination for qualified out-of-state attorneys).

3

Arizona’s AOM Rule also effectuates a legitimate local public interest of

4

encouraging other states to admit Arizona attorneys on similar terms of reciprocal

5

admission and therefore overcomes any minimal burden on interstate commerce that

6

might exist. See (DSOF ¶ 7); Schumacher, 965 F.2d at 1270 (finding that promoting

7

reciprocal bar admission on motion a legitimate interest). Therefore, Plaintiffs’ Dormant

8

Commerce Clause claim fails and the Court grants Defendants summary judgment on this

9

claim.22

10

E.

Equal Protection Claim under the Fourteenth Amendment

11

Count IV of the Second Amended Complaint alleges that Arizona’s “hop-scotch

12

licensing classifications violate the Equal Protection Clause.” (Doc. 36 at 44-45; Doc. 70

13

at 8.) In support of this claim, Plaintiffs point to the Arizona Supreme Court’s exceptions

14

to the standard examination and admission process, including (1) Rule 38(a) pro hac vice

15

admission, (2) Rule 38(b) “certificate of registration” for foreign legal consultants,

16

(3) Rule 38(c) admission without examination for full-time law school faculty members,

17

(4) Rule 38(f) admission for attorneys working for approved legal services organizations

18

to practice in Arizona, and (5) Rule 38(h) admission for in-house corporate counsel.

19

(Doc. 36 at 44-45; Doc. 70 at 8.) Plaintiffs assert that these rules on admission are

20

illogical because, although Plaintiffs are ineligible for admission on motion, they

21
22
23
24
25
26
27
28

22

Plaintiffs also cite Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U.S.
366 (1976) in support of their Dormant Commerce Clause claim. (Doc. 36 at 43; Doc. 70
at 3.) In Great Atlantic, the Court rejected the reciprocity requirement of a Mississippi
regulation allowing the sale of milk products from Louisiana in Mississippi if Louisiana
accepted milk products from Mississippi on a reciprocal basis. The Court found that the
reciprocity requirement did not serve Mississippi’s interest in maintaining its health
standards because it would allow milk from Louisiana even if its standards were lower
than Mississippi’s standards. Id. at 376. The Court did not hold that all reciprocity
requirements violate the Commerce Clause; instead its holding turned on its finding that
the reciprocity requirement did not serve a state interest. Here, Arizona’s AOM Rule
serves the interest of encouraging other states to admit Arizona attorneys on similar
terms. See (DSOF ¶ 7.)

- 42 -

1

theoretically could be qualified to practice law in Arizona under Rules 38(c), 38(f), 38(g),

2

and 38(h). (Doc. 36 at 45.) Plaintiffs appear to argue that because Arizona provides a

3

variety of avenues for attorney admission to the Arizona Bar, its AOM Rule does not

4

serve a legitimate interest. (Id.; Doc. 70 at 7-9.)

5

When evaluating claims under the Equal Protection Clause, the court must first

6

determine the appropriate level of scrutiny to apply to the challenged rule. When a law

7

disadvantages a suspect class or impinges on a “fundamental right,” the court applies the

8

strict scrutiny test. In the absence of such circumstances, the court analyzes the rule

9

under a rational basis test. Lupert v. Cal. State Bar, 761 F.2d 1325, 1327 (9th Cir. 1985).

10

Plaintiffs correctly state that rules that infringe on fundamental rights are subject to strict

11

scrutiny (Doc. 36 at 44), but they have not shown infringement on a fundamental right or

12

discrimination against a suspect class that would trigger that standard of review in this

13

case. See Giannini, 911 F.2d at 358 (9th Cir. 1990) (finding that “the challenged bar

14

examination neither impairs a fundamental right nor discriminates against a suspect

15

class”).

16

In Piper, the Supreme Court held that the right to practice law is a “fundamental

17

right” for purposes of the Privileges and Immunities Clause. 470 U.S. at 1276-78. The

18

holding in Piper, however, is limited to the Privileges and Immunities Clause and does

19

not apply in the context of an Equal Protection Clause claim. See Lupert, 761 F.2d at

20

1327 n.2; Giannini, 911 F.2d at 359 (there is no fundamental right to practice law or to

21

take a bar examination under the Fourteenth Amendment Equal Protection Clause).

22

Additionally, Plaintiffs do not define any “suspect class” to which they belong and

23

lawyers are not members of a “suspect class.” See Giannini, 911 F.2d at 359 (“lawyers

24

are not a suspect class”); Maynard v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 701

25

F. Supp. 738, 742 (C.D. Cal. 1988) (finding that there is no legal support for the

26

contention that federal legal practitioners should be deemed a suspect class).

27

Accordingly, the proper standard of review is the rational basis test. See Schware

28

v. Bd. of Exam’rs, 353 U.S. 232, 238-39 (1957). The Supreme Court has been especially

- 43 -

1

deferential to legislative classifications in the context of challenges to the state regulation

2

of licensed professions. See, e.g., Watson v. Maryland, 218 U.S. 173 (1910); Ohralik v.

3

State Bar Ass’n, 436 U.S. 447 (1978). Here, as Defendants assert, Arizona’s AOM Rule

4

is rationally related to Arizona’s legitimate interest in regulating its bar and seeking to

5

ensure that attorneys licensed in Arizona will be treated equally in states having

6

reciprocity with Arizona. (DSOF ¶ 7); see Schumacher, 965 F.2d at 1270 (finding that

7

promoting reciprocal bar admission on motion is a legitimate interest for purposes of the

8

Equal Protection Clause); Shapiro, 552 F.2d at 588 n.13; Hawkins v. Moss, 503 F.2d at

9

1178 (“Reciprocal statutes or regulations, it has been uniformly held, are designed to

10

meet a legitimate state goal and are related to a legitimate state interest. For this reason,

11

they have been found invulnerable to constitutional attack on equal protection grounds.”).

12

Plaintiffs do not explain how Arizona’s exceptions to the standard examination

13

and admission procedures provided in Rule 38, support their claim that Arizona’s AOM

14

Rule violates the Equal Protection Clause. (Doc. 36 at 45.) Thus, there are no disputed

15

facts regarding this claim and Defendants are entitled to judgment as a matter of law.

16

Therefore, the Court enters summary judgment in Defendants’ favor on Plaintiffs’ claim

17

under the Equal Protection Clause.

18

F.

Fourteenth Amendment Due Process

19

In Count V of the Second Amended Complaint, Plaintiffs allege substantive and

20

procedural due process violations. (Doc. 36 at 45.) Plaintiffs’ allegations in support of

21

their due process claims are difficult to decipher. For example, Plaintiffs allege that

22

“[t]he testing process for sister-state attorneys is a taboo subject, shrouded in secrecy,

23

wrapped in a riddle, [and] surrounded by a conundrum in large part because of a

24

gentleman’s club agreement.” (Doc. 36 at 46.) Even viewed in the light most favorable

25

to Plaintiffs, these allegations do not state a claim for relief. See Rule 12(b)(6). The

26

Court nonetheless addresses Plaintiffs’ claims.

27
28

- 44 -

1.

1

Substantive Due Process

2

Plaintiffs argue that Defendants’ reliance on Arizona’s UBE to test already

3

licensed attorneys violates the Due Process Clause because the UBE does not conform to

4

standardized testing requirements. (Doc. 36 at 37 n.31; Doc. 70 at 9.) In support of this

5

argument, Plaintiffs refer to The Standards for Educational and Psychological Testing

6

(1999), published by the American Educational Research Association, American

7

Psychological Association, and the National Council on Measurement in Education.

8

Defendants respond that this is a policy argument that does not support a due process

9

claim.

10

Each state is free to prescribe the qualifications for admission to practice for those

11

lawyers who appear in its courts. Leis, 439 U.S. at 442. Plaintiffs do not explain why or

12

how the Standards for Educational and Psychological Testing are applicable to the

13

Arizona UBE or how Arizona’s alleged failure to comply with those standards gives rise

14

to a due process claim. Further, the Ninth Circuit has held that a “state need not use a

15

professionally validated examination.” Giannini, 911 F.2d at 354, 358. Accordingly,

16

Plaintiffs have not shown a substantive due process violation.

17

Moreover, Plaintiffs do not allege that Defendants participated in drafting

18

Arizona’s UBE and are thus responsible for any failure to conform to certain testing

19

standards.

20

Plaintiffs have not presented any evidence that Defendants acted or failed to act

21

unconstitutionally, Defendants are entitled to summary judgment on this claim. See

22

Simmons, 609 F.3d at 1020-21 (granting summary judgment in favor of defendants on

23

plaintiff’s claims that defendants were liable for failing to supervise when there was no

24

evidence that defendants themselves engaged in unconstitutional conduct).

25

Because a government official is only liable for his own conduct, and

2.

Procedural Due Process

26

Girvin alleges that she was denied procedural due process because she was not

27

provided notice of her “MBE scores or subjective (MEE) scores in each subject.”

28

(Doc. 36 at 47.) She further alleges that Arizona’s grading policy is secret, the results of

- 45 -

1

Arizona’s UBE are secret, and she was not provided a meaningful opportunity for judicial

2

review of her examination results. (Doc. 36 at 47.) The Court “assume[s] that the due

3

process clause requires the state to employ fair procedures in processing applications for

4

admission to the bar, and therefore, that an applicant who has failed the bar examination

5

is entitled to some procedural protections.” See Whitfield v. Ill. Bd. of Law Exam’rs, 504

6

F.2d 474, 477-78 (7th Cir. 1974). However, there are no genuine issues of disputed fact

7

regarding Girvin’s claim and it fails as a matter of law.

8

Contrary to her assertion, the rules governing admission to the Arizona Bar

9

provide that an unsuccessful applicant may petition the Arizona Supreme Court for

10

review of a grade assessed on the bar exam. See Ariz. R. Sup. Ct. 35(c)(4). Although

11

Girvin did not petition the Arizona Supreme Court for review, she had a “full and fair

12

opportunity” to do so. (DSOF ¶ 28; Doc. 70, Ex. 1 ¶ 25-31); see Kremer v. Chem.

13

Constr. Corp., 456 U.S. 461, 481 (1982) (a “full and fair opportunity” means that the

14

“state proceedings need do no more than satisfy the minimal procedural requirements for

15

the Fourteenth Amendment's Due Process Clause.”).

16

governing admission to the Arizona Bar, Girvin could retake Arizona’s UBE two more

17

times without approval from the Committee on Examination. See Ariz. R. Sup. Ct.

18

35(a)(1).

Additionally, under the rules

19

Considering Girvin’s opportunity to challenge her grade before the Arizona

20

Supreme Court and to retake the Arizona UBE, the requested procedures —“notice of her

21

MBE scores” and of her “subjective scores (MEE) in each subject” or further information

22

about the grading process — were not constitutionally required.

23

Wegmann, 691 F.2d 216, 217-18 (5th Cir. 1982) (finding that bar-examination procedure

24

that included destruction of examinations after grading thereby denying applicant an

25

opportunity review his own examination or obtain review of the fairness of the grade did

26

not violate due process because applicant could retake the examination). Several courts

27

have rejected due process challenges to the bar examination processes when applicants

28

are permitted to retake the examination. See Tyler v. Vickery, 517 F.2d 1089, 1103-05

- 46 -

See Brewer v.

1

(5th Cir. 1975) (holding that due process is not offended by a bar-examination procedure

2

that does not allow failing applicants to obtain review of the determination that he failed,

3

“primarily because an unqualified right to retake the examination at its next regularly

4

scheduled administration satisfies both the purpose of a hearing and affords it

5

protection”); Singleton v. La. State Bar Ass’n, 413 F. Supp. 1092, 1098-1100 (E.D. La.

6

1976) (finding that destruction of examination papers and the lack of a procedure for

7

review of a failing paper did not offend due process); Whitfield, 504 F.2d at 477-78 (7th

8

Cir. 1974) (due process does not require that a bar applicant be permitted to see his

9

examination when he had a right to retake it because “reexamination provides an

10

adequate means of exposing grading errors.”). The Court therefore finds that Girvin was

11

provided with procedural due process and grants summary judgment in favor of

12

Defendants on Plaintiff Girvin’s procedural due process claim.

13

G.

Sixth Cause of Action — “Violation of 42 U.S.C. § 1983”

14

Count VI of the Second Amended Complaint incorporates the allegations

15

contained in the preceding counts and asserts a “violation of 42 U.S.C. § 1983.” (Doc. 36

16

at 49.) That statute, however, merely provides a private cause of action and is not itself

17

an independent source of substantive constitutional rights. Chapman v. Houston Welfare

18

Rights Org., 441 U.S. 600, 617 (1979). Accordingly, the Court will grant summary

19

judgment in favor of Defendants on Count VI to the extent that is alleges an independent

20

violation of § 1983.

21

H.

Conclusion Regarding Summary Judgment on Plaintiffs’ Claims

22

As set forth above, the Court finds that Plaintiffs have failed to establish that there

23

are any genuine issues of material fact regarding their claims and that Defendants are

24

entitled to judgment as a matter of law. Therefore, the Court grants summary judgment

25

in Defendants’ favor on (1) Girvin’s First Amendment retaliation claim, (2) Plaintiffs’

26

claims that the AOM Rule facially violates their First Amendment rights to free speech,

27

association, and to petition in a public forum, (3) Plaintiffs’ Privileges and Immunities

28

Clauses claims, (4) Plaintiffs’ Dormant Commerce Clause claims, (5) Plaintiffs’ Equal

- 47 -

1

Protection Clause claims, (6) Plaintiffs’ due process claims, and (7) Plaintiffs’ claim for a

2

violation of 42 U.S.C. § 1983.

3

I.

Declaratory Judgment

4

Finally, Plaintiffs request declaratory judgment under 28 U.S.C. § 2201. (Doc. 36

5

at 49.) As set forth above, Plaintiffs have not established a violation of any substantive

6

right. Because a claim for declaratory relief cannot stand on its own, the Court grants

7

Defendants summary judgment on Plaintiffs’ claim for declaratory relief. See Shroyer v.

8

New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1044 (9th Cir. 2010) (affirming

9

dismissal of claims for declaratory relief based on dismissal of claims for substantive

10

relief); Hoeck v. City of Portland, 57 F.3d 781, 787 (9th Cir. 1995) (having “determined

11

that the City did not violation [plaintiff’s] substantive due process rights, [the court]

12

find[s] that [plaintiff’s] claim for declaratory relief is likewise without merit.”).

13

VII.

Motion to Join “John Doe” Plaintiff

14

On August 6, 2013, Plaintiffs filed a motion to join a John Doe plaintiff.

15

(Doc. 93.) The motion seeks to join a party and to add claims that Rule 34(f)(1)(A), as

16

amended effective July 1, 2013, is unconstitutional. John Doe purports to be an attorney

17

admitted to the Florida Bar by examination who has practiced law in Florida for over

18

twenty years (Doc. 93, attachment 1 at 2), and who has been admitted on motion to the

19

Texas and Tennessee Bars. (Id., attachment 1 at 3.) Plaintiffs assert that under Rule 34,

20

as amended, even though Texas and Tennessee have reciprocity with Arizona, John Doe

21

is ineligible for admission on motion under Rule 34 because he has not practiced in either

22

Texas or Tennessee for five of the last seven years.

23

A.

Amendment of Pleadings

24

Because Plaintiffs have previously amended their complaint, and Defendants do

25

not consent to a further amendment, Plaintiffs need leave of court to amend the Second

26

Amended Complaint. See Fed. R. Civ. P. 15(a); Desert Empire Bank v. Ins. Co., 623

27

F.2d 1371, 1374 (9th Cir. 1980) (noting that Rule 15 standards are implicated by a

28

motion to amend pleadings to add a new party). As indicated in the Court’s prior order,

- 48 -

1

Plaintiffs must comply with Local Rule of Civil Procedure Local 15.1. (Doc. 18.) This

2

rule provides, in relevant part, that:

3
4
5
6
7
8

A party who moves for leave to amend a pleading . . . must
attach a copy of the proposed amended pleading as an exhibit
to the motion, which must indicate in what respect it differs
from the pleading which it amends, by bracketing or striking
through the text to be deleted and underlining the text to be
added. The proposed amended pleading is not to incorporate
by reference any part of the preceding pleading, including
exhibits.
LRCiv 15.1(a).

9

Although Plaintiffs’ motion discusses John Doe and the claims he wishes to assert,

10

Plaintiffs have not attached a proposed third amended complaint as an exhibit to their

11

motion. In view of Plaintiffs’ failure to comply with Local Rule 15.1(a), the Court will

12

deny their motion for leave to amend.

13

Moreover, even if Plaintiffs had complied with Rule 15.1(a), the Court would

14

deny leave to amend the complaint a third time. Rule 15 provides that the court should

15

freely grant leave to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). The

16

court should permit amendment in the absence of undue delay, bad faith or dilatory

17

motive, prejudice to the opposing party, and futility of the amendment. Foman v. United

18

States, 371 U.S. 178 (1962). In Howey v. United States, 481 F.2d 1187 (9th Cir. 1973),

19

the Ninth Circuit considered these factors, and concluded that they are not of equal

20

weight. Specifically, the court noted that, standing alone, even lengthy delay is an

21

insufficient ground for denial of leave to amend. “Only where prejudice is shown or the

22

movant acts in bad faith are courts protecting the judicial system or other litigants when

23

they deny leave to amend a pleading.” Id. at 1191; see also Hanson v. Hunt Oil Co., 398

24

F.2d 578, 581-82 (8th Cir. 1968).

25

Here, because John Doe’s claims are based on July 1, 2013 amendments to

26

Arizona’s AOM Rule, and the motion to amend was filed one month after the effective

27

date of that amendment, there is no evidence of undue delay on Plaintiffs’ part.

28

However, permitting Plaintiffs leave to file a third amended complaint at this point in the

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1

proceedings would prejudice Defendants. This matter has been pending for nearly a year

2

and Plaintiffs have already amended their complaint twice. As discussed in this Order,

3

the parties have filed and exhaustively briefed cross motions for summary judgment and

4

several other motions, without a case management order or any discovery. Therefore, the

5

parties apparently consider this matter suitable for resolution without discovery. The

6

procedural posture of this case weighs in favor of denying Plaintiffs’ motion to amend.

7

See Matsumoto v. Republic Ins. Co., 792 F.2d 869, 872 (9th Cir. 1986) (holding that the

8

district court did not abuse its discretion in denying motion to amend when discovery had

9

already commenced and defendant’s motion for summary judgment was pending).

10

B.

Same Transaction or Occurrence

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Plaintiffs now seek leave to add an unidentified plaintiff to assert claims related to

12

a July 1, 2013 amendment to Arizona’s AOM Rule. Although the AOM Rule, as it

13

existed before the July 1, 2013 amendment, is the subject of the Second Amended

14

Complaint, John Doe’s challenges to the AOM Rule as it now exists are unique to his

15

situation. In his declaration in support of the motion for joinder, John Doe states that his

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“situation differs from the other plaintiffs.” (Doc. 93, attachment 1 at 2.) John Doe

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asserts that “the clerk of admissions for Arizona attorney licensing,” told him that he does

18

not qualify for admission on motion under the “new Rule because he [has] not worked in

19

Texas or Tennessee for five of the last seven years.” (Doc. 93, attachment 1 at 3.) John

20

Doe does not indicate whether he formally applied for admission to the Arizona Bar on

21

motion.

22

John Doe’s challenges to amended Rule 34(f)(1)(A)(ii) do not arise out of the

23

same transaction or occurrences that are claimed by Plaintiffs in the Second Amended

24

Complaint. See Fed. R. Civ. P. 20(a)(1)(A) (providing that “[p]ersons may join in one

25

action as plaintiffs if . . . they assert any right to relief . . . with respect to or arising out

26

of the same transaction, occurrence, or series of transactions or occurrences;” and there is

27

a common question of law or fact.); see also Desert Empire, 623 F.2d at 1374 (noting

28

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1

that Rule 20 standards are implicated by a motion to amend pleadings to add a new

2

party).

3

Additionally, John Doe’s assertion that the amended rule is unconstitutional is

4

contrary to Plaintiff Kolman’s current position that he should be admitted to the Arizona

5

Bar under the amended rule.

6

requirement of Rule 20. See Fed. R. Civ. P. 20(a)(1)(A) and (B). To the extent that John

7

Doe seeks to join in the claims asserted in the Second Amended Complaint, amendment

8

would be futile because, as set forth in this Order, those claims fail as a matter of law.

Thus, the proposed claims fail the commonality

9

Finally, the addition of a “John Doe” plaintiff on the facts of this case is

10

inconsistent with Rule 10(a), which requires that a complaint name all parties.

11

Fed. R. Civ. P. 10(a); see also In re Zicam Cold Remedy Mktg. Sales Practices, and Prod.

12

Liab. Litig., 2010 WL 2308388, at *2 (D. Ariz. Jun. 9, 2010) (denying leave to amend to

13

add a John Doe defendant based, in part, on Rule 10(a)); see also S. Methodist Univ.

14

Ass’n v. Wynne & Jaffe, 599 F.2d 707, 712-13 (5th Cir. 1979) (discussing that courts

15

have allowed plaintiffs to use fictitious names when the issues involve sensitive matters

16

of a “highly personal nature, such as birth control, abortion, homosexuality or the welfare

17

rights of illegitimate children or abandoned families . . . .).

18

VIII. Conclusion

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As set forth above, the Court enters summary judgment in Defendants’ favor.

20

Because Defendants’ Motion for Summary Judgment (Doc. 54) and Defendants’ Motion

21

to Dismiss (Doc. 52) assert nearly identical arguments, the Court denies the motion to

22

dismiss as moot.

23

Accordingly,

24

IT IS ORDERED that Plaintiffs’ Motion for Hearing (Doc. 84) is DENIED.

25

IT IS FURTHER ORDERED that Plaintiffs’ Requests to Take Judicial Notice

26

(Docs. 87 and 88) are GRANTED to the extent that the Court takes judicial notice that

27

the Supreme Court of Montana adopted the UBE in July 2013.

28

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1

IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment

2

(Doc. 54) is GRANTED and that the Clerk of Court shall enter judgment in favor of

3

Defendants and against Plaintiffs and shall terminate this action.

4
5
6
7

IT IS FURTHER ORDERED that Plaintiffs’ Motion for Summary Judgment
(Doc. 28) is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss (Doc. 52) is
DENIED as moot.

8

IT IS FURTHER ORDERED that the Motion for “Order Admitting [Kolman]

9

Forthwith to the Bar of the Arizona Supreme Court Based on a Recent Change in the

10

Challenged Arizona Supreme Court Rule” (Doc. 90) is DENIED for lack of subject

11

matter jurisdiction.

12
13
14

IT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave to Join Party
(Doc. 93) is DENIED.
Dated this 19th day of September, 2013.

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