Page 1
Ninth Circuit:
California State Bar Enjoys Eleventh Amendment Immunity
Court Abandons Its Test for Determining Whether an Entity Is an Arm of State, Adopts D.C. Circuit’s Approach
By a MetNews Staff Writer
The State Bar of California is an arm of the state and, as such, enjoys Eleventh Amendment immunity in federal courts, the Ninth U.S. Circuit Court of Appeals held yesterday in an en banc opinion, drawing a dissent by two judges and a partial concurrence.
In a rare move, the Ninth Circuit decided on July 21 to yank the appeal from a three-judge panel and to resolve the issue by a court-wide vote of the active judges, in the first instance.
In its 1985 decision in Lupert v. California State Bar, the Ninth Circuit first recognized the State Bar’s immunity.
“Normally that would be the end of the story” Judge John B. Owens said, writing for the majority.
“A nearly forty-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.”
1988 Test
Lupert and the Ninth Circuit’s 1995 decision in Hirsh v. Justices of the Supreme Court of California, which also recognized the State Bar’s immunity, were decided in accordance with the test for determining if an entity is a state agency set forth in the court’s 1988 decision in Mitchell v. Los Angeles Community College District, Owens noted. He explained:
“We sua sponte took this case en banc to decide whether (1) the Mitchell factors…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.”
He added:
“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.”
Mitchell Factors Delineated
The Mitchell factors, the jurist wrote, “arose from a grab bag of Supreme Court and Ninth Circuit precedent.” He provided this summary of them:
“[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.”
Under Mitchell, the key issue is the first—whether a money judgment would be paid out of state funds. But that factor, Owens said, has been minimized by the U.S. Supreme Court, which, instead, places an emphasis on preserving “state dignity.”
Kavanaugh’s Opinion
Owens announced the abandonment of the Mitchell test and adoption of the test formulated by the District of Columbia Circuit in its 2008 opinion in Puerto Rico v. Federal Maritime Commission. There, then-Circuit Judge (now U.S. Supreme Court Justice) Brett Kavanaugh wrote:
“To determine whether an entity is an arm of the State, the Supreme Court and this Court have generally focused on the ‘nature of the entity created by state law’ and whether the State ‘structured’ the entity to enjoy its immunity from suit….That inquiry requires examination of three factors: (1) the State’s intent as to the status of the entity, including the functions performed by the entity; (2) the State’s control over the entity; and (3) the entity’s overall effects on the state treasury.”
Owens remarked:
“Though our decision to implement the D.C. Circuit’s test represents a change in our jurisprudence, this new framework is unlikely to lead to different results in cases that previously applied the Mitchell factors and held an entity entitled to immunity.”
Same Result Reached
The conclusion reached in 1985 that the State Bar is an arm of the state does not change in applying the D.C. test, the Ninth Circuit judge said. Addressing the state’s intent, he said that California both characterizes and treats the State Bar as a state entity.
“The California Supreme Court’s description of the State Bar as its ‘administrative arm’ for attorney discipline and admission purposes cuts decisively in favor of the State Bar’s immunity,” he remarked.
With respect to “control,” Owens said that “the power to appoint the State Bar’s governing structure is housed wholly within the state government” and “the California Supreme Court exercises significant control over the State Bar’s functioning.”
As to the effect on the treasury, the judge said that “California law makes the State Bar responsible for its own debts and liabilities, so California would not be liable for a judgment against the State Bar,” and the third factor “presents a closer call,” but that factor “is not dispositive.”
Oregon State Bar
The opinion makes only fleeting reference to the Ninth Circuit’s 2021 decision in Crowe v. Oregon State Bar, a case on which major reliance was placed by the appellant, attorney Benjamin Kohn, who passed the bar exam on his fourth attempt. He wanted to sue the State Bar of California for denying him certain accommodations, based on disabilities, when he took the exam in unsuccessful attempts.
In Crowe, the Ninth Circuit found that the State Bar of Oregon does not enjoy immunity. Owens wrote:
“Although there may be some differences between the California and Oregon State Bars, whether the Oregon State Bar would be an arm of the state under the three-factor test we now employ, rather than the Mitchell factors, is not before us today. Any future case brought against the Oregon State Bar will need to be analyzed under the new test we articulate in this decision.”
Other issues were remanded to the three-judge panel to which the case had been initially assigned.
Mendoza’s Opinion
Judge Salvador Mendoza Jr. said in a partial concurrence:
“…I disagree with the majority’s wholesale embrace of the D.C. Circuit’s entity-based approach to sovereign immunity. This case was a close call, and I urge my 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.”
Judge Patrick J. Bumatay, joined by Judge Jennifer Sung, partially dissented. He expressed agreement with the “retirement of the Mitchell test” and adoption of the D.C. Circuit’s approach, but contended that under that new approach, “each of its factors cuts against finding sovereign immunity for the State Bar of California.”
The judge asserted:
“First, California has made evident its intent to treat the State Bar more like an independent state-created entity, such as a municipality, rather than an ‘arm of the State.’ Second, California has relinquished nearly all direct and immediate control over the Bar. And finally, California is not on the hook for the Bar’s funding or its debts. With these considerations in mind, we should have recognized that the State Bar is not entitled to the sovereign immunity reserved only for the State and its instrumentalities.”
The case is Kohn v. State Bar of California, 20-17316.
Joining with Owens were Chief Judge Mary H. Murguia and Judges Johnnie B. Rawlinson, Sandra S. Ikuta, Daniel A. Bress, Danielle J. Forrest, Gabriel P. Sanchez, and Holly A. Thomas.
Copyright 2023, Metropolitan News Company