SAN FRANCISCO - A full U.S. Ninth Circuit Court of Appeals panel ruled a lawyer cannot continue his discrimination lawsuit against the State Bar of California, finding the attorney registration and discipline organization is considered an arm of the state subject to constitutional protections against lawsuits.
Ninth Circuit Judge John Owens wrote the opinion, filed Dec. 6. Judge Salvador Mendoza wrote a partial concurrence. Judge Patrick Bumatay, joined by Judge Jennifer Sung, wrote a partial concurrence and partial dissent. Other judges on the panel included Mary Murguia, Johnnie Rawlinson, Sandra Ikuta, Daniel Bress, Danielle Forrest, Gabriel Sanchez and Holly Thomas.
In the underlying litigation, attorney Benjamin Kohn accused the Bar and its examiners committee of violating the Americans With Disabilities Act, the Rehabilitation Act and California state law over an alleged refusal to provide requested test-taking accommodations.
U.S. District Judge Phyllis Hamilton granted the Bar’s request to dismiss the complaint, citing 11th Amendment sovereign immunity protecting state agencies from pursuits of monetary relief.
“Normally that would be the end of the story,” Owens wrote. “A nearly 40-year-old precedent that largely has gone unchallenged would control the panel’s decision, and en bancs are quite rare. But this story is only getting started.”
Without prompting, the Ninth Circuit took the case en banc to consider the proper factors for analyzing which entities are entitled to 11th Amendment protections and, if rigorous scrutiny is applied, the Bar is immune from Kohn’s complaint.
Owens said the Ninth Circuit has generally evaluated questions of whether an entity invoking the 11th Amendment through the frame of whether money awarded would come from state coffers; if the entity has core governmental functions; if it can otherwise sue or be sued; if it can take property in its own name; and the entity’s corporate status.
But Owens further said those “factors are out of step with current Supreme Court jurisprudence,” noting an imbalanced emphasis on whether a state treasury would pay financial penalties, rather than the more appropriate question of the relationship between the state and the way the defendant entity formed.
The panel further said established precedent suggests “an earlier recognition that the best arm of the state test is not a multi-factor checklist involving potentially irrelevant factors, but an analysis that drills down on whether the state ‘structured’ the entity to enjoy immunity from suit.”
Owens said the California state constitution codifies the State Bar, and state law “characterizes” it as a “governmental instrumentality.” He further wrote the California Supreme Court describes the Bar as its “administrative arm” for admitting and disciplining lawyers, which fulfills the state’s interest in regulating attorneys. Bar trustees and examiners are seated through appointments from all three branches of state government, and “the California Supreme Court exercises significant control over the state bar’s functioning.”
Regarding finances, Owens wrote state law indisputably makes the Bar responsible for its own liabilities, but the Bar argued all its property is “held for essential public and governmental purposes,” while lawmakers exercise control over the Bar’s ability to raise money. All those facts Owens wrote, “undermine Kohn’s portrait of the state bar as a financially self-sustaining, independent entity.”
In his partial concurrence, Mendoza agreed with the outcome but urged his “colleagues to be wary of deeming certain state instrumentalities — which often perform functions unrelated to the express delegation of state power — categorically immune from every federal suit. Doing so lacks good cause in either precedent or fact.
Bumatay also agreed the court was right to update its rubric for analyzing 11th Amendment immunity, but said the new factors considered shouldn’t have resulted in the Bar being protected from Kohn’s lawsuit. He wrote “California has made evident its intent to treat the state bar more like an independent state-created entity, such as a municipality” and has relinquished almost all direct, immediate control, while also not being “on the hook for the bar’s funding or its debts.”
Although Bumatay noted the state constitution defines the Bar as a “public corporation,” he said that is a term also used for municipalities for almost 150 years. Owens replied by explaining that designation has multiple definitions and “merely means that something is not private.”
The panel remanded the complaint to the original three-judge Ninth Circuit panel for further proceedings.
Kohn is represented by attorneys Gregory Michael and Dorothy Yamamoto, of the Michael Yamamota firm, of Berkeley.
When reached for comment, Kohn provided the following statement:
“The Dec. 6 decision addresses only the threshold question of whether the State Bar of California is entitled to share in what sovereign immunity the State of California has, not the State Bar’s challenge to the constitutionality of the ADA’s Congressional abrogation of the states’ sovereign immunity, a constitutional challenge that the Ninth Circuit certified to the U.S. Attorney General or any other issue concerning the dismissal of the non-ADA claims for which California waived its immunity,” Kohn wrote. “Despite some contrary reporting, neither the Ninth Circuit nor the District Court decision (granting a motion to dismiss) has ever decided any factual issue going to whether the State Bar discriminated against me.
“While I’m disappointed by the ruling, I hope that the California Legislature takes action on the difficulties it places on enforcing federal disability rights to codify reforms over the State Bar’s testing accommodation procedures into California law, particularly as the internal ‘voluntary reforms’ the State Bar pursued internally are insubstantial and fail to correct the most egregious aspects, such as the continued allocation of nearly all time between exam cycles to months-long admissions staff review of testing accommodation requests, despite that this leaves disabled applicants and their doctors days at best to turn around appeals if a decision is not released the day after the appeal cutoff to begin with;
"A categorical bar of consideration of off-clock breaks and remote testing as accommodation requests that will receive individualized consideration as required under the ADA;
"And the failure to afford disabled applicants denied their requested accommodations any hearing like that offered to applicants who might be denied moral character findings or are accused of exam rules violations.
"Reform of those issues was sought by overwhelming public comment to the State Bar… but which the State Bar rejected to claim its insubstantial amendments would adequately address the flaws in their current practices. Commenters had included nearly every disability rights organization and civil rights organization, a former Congressman who co-authored the ADA, the California DFEH’s testing accommodations best practices panel, the California Access to Justice Commission and Asm. Marc Berman of the California Legislature.
“No decision has been made yet on further action from last week’s ruling, but in any event the appeal is far from over and we remain optimistic about the forthcoming 3-judge panel ruling on the remaining issues," Kohn said.
Representing the State Bar are attorneys from its office of general counsel in San Francisco.
Agencies and firms filing support briefs included Sarkar Law, of San Francisco; the Disability Rights Education and Defense Fund, of Berkeley; and Legal Aid at Work, San Francisco.