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Monday, July 24, 2023


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Ninth Circuit to Decide En Banc if State Bar Has Immunity

Panel Held in 2021 That Sovereign Immunity Is Not Enjoyed by Oregon State Bar; Attorney With Disabilities Wants

Damages Based on Denial of Some Accommodations He Sought When He Sat Four Times for California Bar Exam


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday took the rare step of declaring that it would hear an appeal, in the first instance, en banc, announcing it will hear oral argument during the week of Sept. 18 in a case a case which raises the issue of whether the State Bar of California enjoys sovereign immunity.

Damages are being sought from the State Bar by attorney Benjamin Kohn based on the denial of some of the accommodations he sought when he sat for the State Bar examination in July 2018, February 2019, February 2020, and October 2020, with Kohn passing the exam on his fourth try. He is seeking the damages under California’s Unruh Act based on alleged violations of the federal Americans With Disability Act.

Kohn suffers from a variety of physical and mental disabilities.

 On Oct. 27, 2020, U.S. District Court Judge Phyllis J. Hamilton of the Northern District of California held that, inasmuch as Kohn had taken the October examination, “any request for declaratory or injunctive relief pertaining to that Exam is necessarily moot,” and that damages could not be awarded based on the State Bar’s governmental immunity.

2021 Decision Cited

In his April 8, 2022 brief on appeal, Kohn pointed to the Ninth Circuit’s 2021 decision in Crowe v. Oregon State Bar in which it was held that the State Bar did not enjoy immunity.

He argued that the State Bar of California, like its Oregon counterpart, does not perform core governmental functions, contending:

“Under California law…, the California Supreme Court retains the ultimate authority to resolve issues pertaining to attorney admission, discipline, and the rules of professional conduct….The State Bar’s actions are therefore advisory in nature and it does not serve a central government function….”

State Bar’s Contentions

The State Bar argued in its Nov 24, 2022 brief:

“The only question on appeal is whether the State Bar, an arm of the California judiciary, is liable for damages in federal court for its alleged past failure to accommodate Kohn—even though it provided Kohn with accommodations including 200% testing time, a semi-private room, and use of a laptop and ergonomic equipment on all three prior exams, plus 250% testing time spread over six days on the fourth exam—and its allegedly burdensome procedures (which nevertheless provided individualized consideration of Kohn’s requests and decisions on Kohn’s appeals in advance of the exams)….

“The District Court correctly held that the State Bar enjoys sovereign immunity from all of Kohn’s damages claims because it is an arm of the State of California.”

Supplemental Briefs Sought

The appeal was argued on Feb. 15 before Circuit Judges Kim Mclane Wardlaw, Consuelo M. Callahan and Jacqueline H. Nguyen. But in response to a call by an unnamed Ninth Circuit judge for an en banc hearing, on May 19 supplemental briefs were solicited from the parties as to whether that unusual procedure should be invoked.

Each of the parties responded on June 9.

Crowe declared that Crowe has created “an intra-Circuit conflict on a critical question of constitutional law,” and argued:

“The question of whether the State Bar is entitled to sovereign immunity is of exceptional importance. The State Bar interacts with tens of thousands of bar applicants and attorneys each year. When faced with accusations of unlawful discrimination or failure to adequately accommodate disabilities, the State Bar routinely convinces courts to dismiss the plaintiffs claims based solely on the State Bar’s purported sovereign immunity—all without ever having established its entitlement to that immunity.

“Justice may be blind, but that does not mean courts should blindly assume away a defendant’s liability. In each of these cases, and the many more cases never filed because of this issue, a grave miscarriage of justice has occurred. As a result, countless individuals, including Kohn, have been forced to suffer through an already grueling multi-day bar exam without the accommodations then treating physicians deem necessary. Those individuals have had to endure significant hardship merely for the opportunity to practice law in California. This Court should resolve this issue en banc so that the advancement of the legal profession is not further stymied by the State Bar’s actions.”

Crowe Differentiated

The State Bar maintained that Crowe is inapposite because it dealt with “freedom of speech and freedom of association claims based on political statements” in the journal of the Oregon State Bar (“OSB”), pointing out:

“It did not concern a state attorney regulatory agency performing admissions functions under the control of the state Supreme Court, and this Court did not make any holding about whether immunity would apply in the context of admissions and discipline.”

It said:

“[U]nlike the Oregon State Bar, the State Bar of California is no longer an integrated bar….[I]n 2018 the State Bar completed a years-long process in which it spun off all of its professional trade associational features to become a purely regulatory agency….OSB is governed by its members, who elect its governing body…whereas the State Bar…is governed by trustees appointed by the three branches of state government. OSB’s structure as a professional trade organization run by its members led the Crowe court to conclude that [three] factors weigh against sovereign immunity, while the state’s close control of the State Bar…results in those factors supporting the State Bar’s status as an arm of the state.”

The State Bar asserted:

“There is no need for en banc review. This Court’s prior consistent recognition that the State Bar of California is an arm of the State of California is correct, consistent with similar decisions nationwide, and entirely reconcilable with Crowe’s conclusions in a different context about the Oregon State Bar.”

Chief Judge’s Order

Chief Judge Mary H. Murguia said in Friday’s order:

“Upon the vote of a majority of nonrecused active judges, it is ordered that this case be heard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3.

“Judge Koh did not participate in the deliberations or vote in this case.”

Rule 35(a) says:

“A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: [¶] (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or [¶] (2) the proceeding involves a question of exceptional importance.”

The case is Kohn v. State Bar of California, 20-17316.


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