Kohn v. State Bar of Cal.

87 F.4th 1021

Benjamin KOHN, Plaintiff-Appellant, v. STATE BAR OF CALIFORNIA; California Committee of Bar Examiners, and Their Agents in Their Official Capacity, Defendants-Appellees.

No. 20-17316

United States Court of Appeals, Ninth Circuit

Argued and Submitted En Banc September 20, 2023 San Francisco, California

Filed December 6, 2023

Appeal from the United States District Court for the Northern District of California, Phyllis J. Hamilton, District Judge, Presiding, D.C. No. 4:20-cv-04827-PJH

Gregory R. Michael (argued) and Dorothy C. Yamamoto, Michael Yamamoto LLP, Berkeley, California, for Plaintiff-Appellant.

Brady R. Dewar (argued), Ellin Davtyan, Robert G. Retana, Rita K. Himes, and Jean R. Krasilnikoff, Office of General Counsel, The State Bar of California, San Francisco, California; for Defendants-Appellees.

Julian Sarkar, SarkarLaw, San Francisco, California, for Amicus Curiae SarkarLaw.

Claudia Center, Disability Rights Education and Defense Fund, Berkeley, California; Jinny Kim, Disability Rights Advocates, Berkeley, California; Laura A. Scalia, Legal Aid At Work, San Francisco, California; for Amici Curiae Disability Rights Education and Defense Fund, Inc., Legal Aid Work, et. al.

Before: Mary H. Murguia, Chief Judge, and Johnnie B. Rawlinson, Sandra S. Ikuta, John B. Owens, Daniel A. Bress, Danielle J. Forrest, Patrick J. Bumatay, Jennifer Sung, Gabriel P. Sanchez, Holly A. Thomas and Salvador Mendoza, Jr., Circuit Judges.

Opinion by Judge Owens;

Partial Concurrence by Judge Mendoza;

Partial Concurrence and Partial Dissent by Judge Bumatay

OPINION

OWENS, Circuit Judge:

For nearly forty years, the California State Bar has enjoyed Eleventh Amendment immunity in federal court. See, e.g., Lupert v. Cal. State Bar, 761 F.2d 1325, 1327 (9th Cir. 1985); Hirsh v. Justs. of the Sup. Ct. of Cal., 67 F.3d 708, 715 (9th Cir. 1995) (per curiam). Appellant Benjamin Kohn, a licensed California attorney, seeks to change that. He contends that the State Bar is not an "arm of the state," and he can sue it without restriction. Consistent with every other circuit, we reaffirm that the State Bar enjoys Eleventh Amendment protection in federal court and update our arm of the state jurisprudence to better reflect the Supreme Court's most recent guidance.

I. FACTUAL AND PROCEDURAL BACKGROUND

The California State Bar is the "administrative arm" of the California Supreme Court "for the purpose of assisting in matters of admission and discipline of attorneys." In re Rose, 22 Cal.4th 430, 93 Cal. Rptr.2d 298, 993 P.2d 956, 961 (2000) (quoting In re Att'y Discipline Sys., 19 Cal.4th 582, 79 Cal.Rptr.2d 836, 967 P.2d 49, 59 (1998)); see also Cal. R. Ct. 9.3 ("The State Bar serves as the administrative arm of the Supreme Court for admissions matters."). Under the California Constitution, "[e]very person admitted and licensed to practice law in [the] [s]tate is and shall be a member of the State Bar ...." Cal. Const. art. VI, § 9. The State Bar "acts under the authority and at the direction of the Supreme Court[,]" which has "inherent jurisdiction over the practice of law" in the state. Cal. R. Ct. 9.3. As part of its role in the admission of attorneys, the State Bar examines candidates' qualifications, administers the bar exam, and certifies candidates to the California Supreme Court. Id.; Cal. Bus. & Prof. Code §§ 6046, 6060(g).

The claims in this case stem from the State Bar's admission function. Kohn filed a federal complaint against the State Bar seeking monetary damages and other relief. He alleged that its refusal to provide him with certain test-taking accommodations violated Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, sections of the California Government Code, and California's Unruh Civil Rights Act.¹ The State Bar moved to dismiss the lawsuit on several grounds, including that the Eleventh Amendment prohibited the action from going forward.²

The district court agreed with the State Bar. It granted the motion to dismiss and quoted Hirsh's clear holding for support: "The Eleventh Amendment's grant of sovereign immunity bars monetary relief from state agencies such as California's Bar Association and Bar Court." Hirsh, 67 F.3d at 715. Hirsh relied exclusively on Lupert for its holding. Id.; see also Lupert, 761 F.2d at 1327 ("The Eleventh Amendment bars this suit against the named agencies as the state did not consent to being sued.").

Normally that would be the end of the story. A nearly forty-year-old precedent that largely has gone unchallenged³ would control the panel's decision, and en bancs are quite rare. But this story is only getting started.

Lupert and Hirsh were largely silent as to why the State Bar enjoyed Eleventh Amendment immunity, and Hirsh ignored a long line of caselaw setting out our test (often called the Mitchell factors) for determining whether a state agency, like the State Bar, is an arm of the state entitled to such protection. See, e.g., Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982); Mitchell v. L.A. Cmty. Coll. Dist., 861 F.2d 198, 201-02 (9th Cir. 1988). We have applied the Mitchell factors and the Eleventh Amendment to a wide range of state entities.⁴ Yet we have spent little time over these decades considering whether our law accurately captures the latest Supreme Court thinking.

We sua sponte took this case en banc to decide whether (1) the Mitchell factors, described infra pp. 1026-30, remain the optimal means to conduct an arm of the state analysis; and (2) the California State Bar enjoys Eleventh Amendment protection under a more rigorous scrutiny than it received in Lupert and Hirsh.

II. DISCUSSION

A. Standard of Review

"We review de novo a dismissal on the basis of sovereign immunity or for failure to state a claim upon which relief can be granted." Ariz. Students' Ass'n v. Ariz. Bd. of Regents, 824 F.3d 858, 864 (9th Cir. 2016). Whether an entity is an arm of the state within the meaning of the Eleventh Amendment is a question of federal law. Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 n.5, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997) ("Regents").

B. The Arm of the State Doctrine and the Mitchell Factors

The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. Longstanding Supreme Court precedent has interpreted this Amendment to immunize states from suit in federal court by citizens and noncitizens alike. See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) ("Seminole Tribe"); Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991); Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890). This immunity extends not just to suits in which the state itself is a named party but also to those against an "arm of the [s]tate." Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); accord Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 47, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994); Regents, 519 U.S. at 429, 117 S.Ct. 900.

There is no standard test for determining whether an entity is an arm of the state for purposes of sovereign immunity. See Fresenius Med. Care Cardiovascular Res., Inc. v. P.R. & Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 61 (1st Cir. 2003) ("The arm of the state analytical doctrine has moved freely ... applying common principles."). The circuits have developed different approaches to this question based on considerations the Supreme Court has identified as relevant, including "the nature of the entity created by state law," Mt. Healthy City Sch. Dist. Bd. of Educ., 429 U.S. at 280, 97 S.Ct. 568, whether the state "structured" the entity to "enjoy the special constitutional protection of the [s]tate[] [itself]," Hess, 513 U.S. at 43-44, 115 S.Ct. 394 (citation omitted), and the state's legal liability for judgments against the entity, Lake Country Ests., Inc. v. Tahoe Reg'l Plan. Agency, 440 U.S. 391, 401-02, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979).⁵ The Supreme Court has directed that "[w]hen indicators of immunity point in different directions, the Eleventh Amendment's twin reasons for being remain our prime guide": the states' dignity and their financial solvency. Hess, 513 U.S. at 47, 52, 115 S.Ct. 394.

Our version of the arm of the state test, the so-called Mitchell factors, arose from a grab bag of Supreme Court and Ninth Circuit precedent and is normally reduced to the following:

[1] whether a money judgment would be satisfied out of state funds, [2] whether the entity performs central governmental functions, [3] whether the entity may sue or be sued, [4] whether the entity has the power to take property in its own name or only the name of the state, and [5] the corporate status of the entity.

Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 250-51 (9th Cir. 1992) (quoting Mitchell, 861 F.2d at 201).

This case presents the question of whether we ought to reshape the Mitchell factors in light of developments in Supreme Court doctrine and our experience applying them. We conclude that we should.

First, the Mitchell factors are out of step with current Supreme Court jurisprudence. Under Mitchell, we have placed the greatest weight on the first factor—whether a money judgment would be satisfied out of state funds. See, e.g., Durning v. Citibank, N.A., 950 F.2d 1419, 1424 (9th Cir. 1991) ("[T]he source from which the sums sought by the plaintiff must come is the most important single factor in determining whether the Eleventh Amendment bars federal jurisdiction." (citations omitted)). Our decision to prioritize the first factor was a "recognition of Edelman [v. Jordan]," which held that the Eleventh...