Hirsh v. Justices of Supreme Court of State of Cal.

• Decision Date: 07 September 1995
• Docket Number: Nos. 94-55240,94-55250,94-55507 and 94-56335,s. 94-55240
• Citation: 67 F.3d 708
• Parties: 95 Cal. Daily Op. Serv. 7070, 95 Daily Journal D.A.R. 12,089 Stuart H. HIRSH, Plaintiff-Appellant, v. JUSTICES OF the SUPREME COURT OF the STATE OF CALIFORNIA: Malcolm L. Lucas; Edward Panelli; Joyce Kennard; Armand Arabian; Marvin Baxter; Ronald M. George; and Dan Lungren, State Attorney General & acting personally for his private appointee's financial gain; State Bar of California; Ellen R. Peck, Employee of the State Bar as a claimed Judge; David C. Carr, Employee Prosecutor of State Bar Association, Defendants-Appellees. Ralph F. SERVER, Plaintiff-Appellant, v. SUPREME COURT OF the STATE OF CALIFORNIA; State Bar of California, Defendants-Appellees. Harold Lenard PERRY, Plaintiff-Appellant, v. JUSTICES OF the SUPREME COURT OF the STATE OF CALIFORNIA: Malcolm Lucas, Chief; Edward Panelli; Stanley Mosk; Joyce Kennard; Armand Arabian; Marvin Baxter; Ronald George; and Dan Lungren; Lise Perlman, et al., Defendants-Appellees. Edmundo B. ESPINOZA, Plaintiff-Appellant, v. Malcolm LUCAS; Honorable Justices of the Supreme Court of the State of California; Kathryn Mickle; Stanley Mosk; Joyce Kennard; Armand Arabian; Marvin Baxter; Ronald George; and Dan Lungren, State Attorney General, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 708

67 F.3d 708

95 Cal. Daily Op. Serv. 7070, 95 Daily Journal

D.A.R. 12,089

Stuart H. HIRSH, Plaintiff-Appellant, v. JUSTICES OF the SUPREME COURT OF the STATE OF CALIFORNIA:

Malcolm L. Lucas; Edward Panelli; Joyce Kennard; Armand

Arabian; Marvin Baxter; Ronald M. George; and Dan

Lungren, State Attorney General & acting personally for

his private appointee's financial gain; State Bar of

California; Ellen R. Peck, Employee of the State Bar as a

claimed Judge; David C. Carr, Employee Prosecutor of State

Bar Association, Defendants-Appellees.

Ralph F. SERVER, Plaintiff-Appellant, v. SUPREME COURT OF the STATE OF CALIFORNIA; State Bar of

California, Defendants-Appellees.

Harold Lenard PERRY, Plaintiff-Appellant, v. JUSTICES OF the SUPREME COURT OF the STATE OF CALIFORNIA:

Malcolm Lucas, Chief; Edward Panelli; Stanley Mosk; Joyce

Kennard; Armand Arabian; Marvin Baxter; Ronald George;

and Dan Lungren; Lise Perlman, et al., Defendants-Appellees.

Edmundo B. ESPINOZA, Plaintiff-Appellant,

v.

Malcolm LUCAS; Honorable Justices of the Supreme Court of

the State of California; Kathryn Mickle; Stanley Mosk;

Joyce Kennard; Armand Arabian; Marvin Baxter; Ronald

George; and Dan Lungren, State Attorney General,

Defendants-Appellees.

Nos. 94-55240, 94-55250, 94-55507 and 94-56335.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 7, 1995.

Memorandum March 29, 1995.

Order and Opinion Sept. 7, 1995.

Stuart H. Hirsh and Ralph F. Server, Beverly Hills, CA, Harold L. Perry, Oakland, CA, and Edmundo Espinoza, San Diego, CA, in pro per, for plaintiffs-appellants.

Robert M. Sweet, Marina Del Rey, CA (argued), and Mark Torres-Gil, Office of General Counsel, State Bar of California, San Francisco, CA, for defendants-appellees.

Damon M. Connolly, Deputy Attorney General, Sacramento, CA, for defendants-appellees Justices of the California Supreme Court and Attorney General Daniel E. Lungren.

Appeal from the United States District Court for the Southern District of California.

Before: BROWNING and ROBERT R. BEEZER, Circuit Judges, and HAGGERTY, ^* District Judge.

ORDER

The memorandum disposition filed March 29, 1995, is redesignated as a per curiam opinion.

OPINION

PER CURIAM:

Facing pending attorney disciplinary proceedings in California, each appellant filed suit in federal court under 42 U.S.C. Sec. 1983, alleging deprivation of various constitutional rights. The district court granted the government's motions to dismiss. We affirm.

I. Background

A. The California Attorney Disciplinary System

Under California law, attorney disciplinary matters are handled by the State Bar Court ("Bar Court"), an administrative agency affiliated with the California State Bar Association ("State Bar"). Calif.Bus. & Prof.Code Sec. 6086.5. The Bar Court is divided into a Hearing Department and a Review Department. Id. Secs. 6079.1, 6086.65. Disciplinary proceedings are commenced by serving the accused attorney with a Notice to Show Cause. The Hearing Department then conducts a formal adversarial hearing during which the accused attorney and a State Bar prosecutor present evidence before a Bar Court judge. The Hearing Department makes findings and a recommendation regarding appropriate discipline. The attorney may appeal to the Review Department, which reviews the Hearing Department's findings de novo and makes its own recommendation. The attorney may then file a petition for review with the California Supreme Court. ¹ Id. Sec. 6082. The Supreme Court either grants review and issues a final order or denies review, in which case the Bar Court's recommendation is filed as an order of the Supreme Court. Id. Sec. 6084; Calif. Court Rule 954. Throughout this process, the Supreme Court retains inherent jurisdiction over attorney disciplinary matters. Id. 951(g).

B. The Federal Suits

Each of the suits named as defendants the Justices of the California Supreme Court, the State Attorney General, the State Bar, the Bar Court, and the respective Bar Court judges and prosecutors involved. The appellants sought an injunction to stop the pending disciplinary proceedings, a declaratory judgment that the disciplinary system is unconstitutional, and monetary damages based on alleged deprivations of state and federal constitutional rights. The complaints allege that the disciplinary system deprives appellants of various constitutional rights, including due process, equal protection, the right to vote, and the right to court access. The district court dismissed each case on the ground that Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), required abstention.

II. Abstention from Granting Injunctive and Declaratory Relief

A. Requirements for Abstention

Younger and its progeny generally direct federal courts to abstain from granting injunctive or declaratory relief that would interfere with pending state judicial proceedings. Id. at 40-41, 91 S.Ct. at 748-49; Samuels v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764, 768, 27 L.Ed.2d 688 (1971) (extending Younger to declaratory judgments). Absent "extraordinary circumstances", abstention in favor of state judicial proceedings is required if the state proceedings (1) are ongoing, (2) implicate important state interests, and (3) provide the plaintiff an adequate opportunity to litigate federal claims. See Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982). Each prerequisite is satisfied in each of these cases.

1. Ongoing State Proceedings

Each appellant faced ongoing disciplinary proceedings when he brought suit in federal court. See Beltran v. State of California, 871 F.2d 777, 782 (9th Cir.1988) (stating that abstention requires proceedings to be ongoing at the time plaintiff initiates federal proceedings). Notices to Show Cause had been directed to Hirsh and Espinoza, and the California Supreme Court had not yet filed an order regarding the Bar Court's recommendations with respect to Perry and Server. See Flangas v. State Bar of Nevada, 655 F.2d 946, 949 (9th Cir.1981) (holding proceedings were ongoing where state Board of Bar Governors had recommended discipline but final binding action had yet to be taken by the Nevada Supreme Court).

The ongoing proceedings were judicial in character. Under California's discipline system, the Hearing Department conducts a formal hearing and makes findings, the Review Department conducts a de novo review of those findings, and the Supreme Court retains inherent jurisdiction over the proceedings, including power to review the Bar Court's findings. Appellants point to no relevant distinction between this procedure and that held to be judicial in nature in Middlesex, 457 U.S. at 433-34, 102 S.Ct. at 2522; see also Partington v. Gedan, 880 F.2d 116, 122 (9th Cir.1989) (attorney disciplinary proceedings conducted by an ethics committee or its equivalent under the auspices of the state supreme court are judicial for purposes of Younger ).

2. Important State Interests

California's attorney disciplinary proceedings implicate important state interests. See Middlesex, 457 U.S. at 434, 102 S.Ct. at 2522 ("The State ... has an extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses.").

3. Opportunity to Present Federal Claims

The California Constitution precludes the Bar Court from considering federal constitutional claims. See Calif. Const. art. III, Sec. 3.5. However, such claims may be raised in judicial review of the Bar Court's decision. This opportunity satisfies the third requirement of Younger. See Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619, 629, 106 S.Ct. 2718, 2723-2724, 91 L.Ed.2d 512 (1986); Kenneally v. Lungren, 967 F.2d 329, 332 (9th Cir.1992).

Appellants contend their opportunity for judicial review is inadequate because it is wholly discretionary. ² Judicial review is inadequate only when state procedural law bars presentation of the federal claims. See Partington, 880 F.2d at 123; accord Moore v. Sims, 442 U.S. 415, 430 & n. 12, 99 S.Ct. 2371, 2381 n. 12, 60 L.Ed.2d 994 (1979) (finding abstention appropriate because state law did not impose procedural barriers to raising constitutional claims). The fact that review is discretionary does not bar presentation of appellants' federal claims--appellants can raise the claims in a petition for review. See Beltran, 871 F.2d at 781, 783 (opportunity to present federal claims in a petition for writ of review is sufficient to trigger Younger abstention, even though the court of appeal simply "denied the petition without elaboration"); Martori Bros. Distribs. v. James-Massengale, 781 F.2d 1349, 1352, 1354 (9th Cir.), amended on other grounds, 791 F.2d 799 (9th Cir.1986) (opportunity to raise federal claims in petition for review satisfied the requirements of Younger even though a reviewing court could deny the petition summarily); Fresh Int'l Corp. v. ALRB, 805 F.2d 1353, 1362 (9th Cir.1986) (finding abstention applicable because plaintiff "could have presented [its federal claim] to the court of appeal in its petition for review").

The California Supreme Court's rules state that Bar Court decisions will be reviewed "when it appears ... necessary to settle important questions of law." Calif.Court Rule 954(a). The court has considered federal constitutional challenges to the attorney disciplinary procedure. See, e.g., Lebbos v. State Bar, 53 Cal.3d 37, 48, 278 Cal.Rptr. 845, 806 P.2d 317 (1991). Refusing to abstain would require presuming that the California Supreme Court will not adequately safeguard federal constitutional rights, a presumption the U.S. Supreme Court squarely rejected in Middlesex, 457 U.S. at 431, 102 S.Ct. at 2520-2521. Accordingly, the third requirement for Younger abstention test was satisfied.

B. Applicability of Exceptions to Abstention

1. Bias

Although a federal court is normally required to abstain if the...