Nat'l Ass'n for the Advancement of Multijurisdictional Practice v. Berch

• Decision Date: 08 December 2014
• Docket Number: No. 13–17082.,13–17082.
• Citation: 773 F.3d 1037
• Parties: NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF MULTIJURISDICTION PRACTICE, Allison Girvin, Mark Anderson, Mark Kolman, Plaintiffs–Appellants, v. Hon. Rebecca White BERCH, Chief Justice, Arizona Supreme Court, Hon. W. Scott Bales, Vice Chief Justice; Hon. John Pelander ; Hon. Robert M. Brutinel, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

773 F.3d 1037

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF MULTIJURISDICTION PRACTICE, Allison Girvin, Mark Anderson, Mark Kolman, Plaintiffs–Appellants

v.Hon. Rebecca White BERCH, Chief Justice, Arizona Supreme Court, Hon. W. Scott Bales, Vice Chief Justice; Hon. John Pelander ; Hon. Robert M. Brutinel, Defendants–Appellees.

No. 13–17082.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 6, 2014.

Filed Dec. 8, 2014.

Joseph R. Giannini (argued), Los Angeles, CA, for Plaintiffs–Appellants.

Eryn M. McCarthy (argued), Assistant Attorney General, Phoenix, AZ, for Defendants–Appellees.

Alan B. Morrison (argued), Public Citizen Litigation Group, Washington, D.C., for Amicus Curiae Public Citizen, Inc.

Appeal from the United States District Court for the District of Arizona, Bridget S. Bade, Magistrate Judge, Presiding. D.C. No. 2:12–cv–01724–BSB.

Before: DOROTHY W. NELSON, BARRY G. SILVERMAN, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

M. SMITH, Circuit Judge:

Plaintiffs–Appellants (Plaintiffs) National Association for the Advancement of Multijurisdictional Practice (NAAMJP), Allison S. Girvin, and Mark Anderson filed suit against justices of the Arizona Supreme Court challenging Arizona Supreme Court Rule 34(f) (the AOM Rule), which describes how experienced attorneys can be admitted on motion to the State Bar of Arizona (Arizona Bar). The AOM Rule permits admission on motion to the Arizona Bar for attorneys who are admitted to practice law in states that permit Arizona attorneys to be admitted to the bars of those states on a basis equivalent to Arizona's AOM Rule, but requires attorneys admitted to practice law in states that do not have such reciprocal admission rules to take the uniform bar exam (UBE) in order to gain admission to the Arizona Bar. Anderson, Girvin, and NAAMJP allege that the AOM Rule is unconstitutional under the First Amendment, the Dormant Commerce Clause, and the Privileges and Immunities Clauses of Article IV and the Fourteenth Amendment.

We hold that the AOM Rule is constitutional, and that the district court did not err in dismissing Plaintiffs' claims on summary judgment, or in denying leave to amend Plaintiffs' complaint to permit the joinder of John Doe.

FACTUAL AND PROCEDURAL BACKGROUND

NAAMJP is a non-profit corporation whose stated mission is to improve the legal profession by promoting the adoption of the American Bar Association's (ABA) recommendation for reciprocal bar admission. The ABA encourages states to permit experienced attorneys to be admitted to their bars on motion, provided those attorneys are admitted to the bar in another state.

Allison Girvin is a member of the State Bar of California, who received a score of 272 on the UBE, one point below the passing score required by Arizona. Girvin appealed her UBE score, but she has not received a breakdown of the score from the Arizona Supreme Court. She has not applied for admission to the Arizona Bar under the AOM Rule. Girvin currently lives in Arizona and states that she wishes to practice law in Arizona.

Mark Anderson is a member of the State Bar of Montana, who asserts that Arizona's AOM Rule has restricted him from moving to Arizona to practice law. Anderson has not taken the UBE. Like Girvin, Anderson has not applied for admission to the Arizona Bar pursuant to the AOM Rule.

The Rules of the Arizona Supreme Court provide three methods of admission to the Arizona Bar: (1) admission by taking and passing the UBE, (2) admission pursuant to the AOM Rule, and (3) admission by transfer of a UBE score from another jurisdiction. Ariz. R. Sup.Ct. 34(a)-(h). Anderson, Girvin, and NAAMJP challenge the second of these methods, which provides for admission on motion for attorneys who “have been admitted by bar examination to practice law in another jurisdiction allowing for admission of Arizona lawyers on a basis equivalent to this rule.” Ariz. R. Sup.Ct. 34(f)(1)(A). This effectively means that Arizona permits admission on motion to its bar for attorneys admitted in states having reciprocal admission rules for Arizona-barred attorneys, but requires that attorneys admitted to practice law in states that do not have reciprocal admission rules take the UBE.

On July 1, 2013, the Arizona Supreme Court expanded Rule 34(f)(1) to permit admission to the Arizona Bar on motion for some attorneys admitted in non-reciprocal jurisdictions. Specifically, after July 1, 2013, attorneys admitted to practice law by bar examination in a non-reciprocal jurisdiction, but who are subsequently admitted to practice law on motion in a jurisdiction that has reciprocity with Arizona, and have actively practiced for five of the last seven years in that jurisdiction, are eligible for admission in Arizona under the AOM Rule.

Anderson, Girvin, and NAAMJP brought suit in the District of Arizona challenging the constitutionality of the AOM Rule on First Amendment, Fourteenth Amendment, Dormant Commerce Clause, and Privileges and Immunities Clause grounds. NAAMJP's counsel, Joseph Giannini, has brought challenges to bar admission requirements in several courts. See Blye v. Kozinski, 466 Fed.Appx. 650 (9th Cir.2012) ; Paciulan v. George, 229 F.3d 1226 (9th Cir.2000) ; Giannini v. Real, 911 F.2d 354 (9th Cir.1990) ; Giannini v. Comm. of Bar Exam'rs, 847 F.2d 1434 (9th Cir.1988) ; Nat'l Ass'n for Advancement of Multijurisdiction Practice v. Gonzales, 211 Fed.Appx. 91 (3d Cir.2006). Mr. Giannini is currently subject to a pre-filing order issued in the Northern District of California requiring him “to pay monetary sanctions for signing a frivolous complaint, having an improper purpose, and making scandalous allegations against various judges and defendants.” Paciulan v. George, 38 F.Supp.2d 1128, 1132 (N.D.Cal.1999)aff'd, 229 F.3d 1226 (9th Cir.2000).

On August 6, 2013, Plaintiffs filed a motion to join a John Doe plaintiff. John Doe, an attorney admitted to the State Bar of Florida by examination, and to the Texas and Tennessee bars on motion, argues that the amendments to Arizona's AOM Rule are unconstitutional. Although Texas and Tennessee share reciprocity with Arizona, John Doe is ineligible for admission on motion in Arizona because he has not actively practiced in either Texas or Tennessee for five of the last seven years. He alleges he is afraid to disclose his identity for fear of retaliation.

The district court granted summary judgment to Defendants–Appellees (Defendants). Although the district court did not conclusively determine whether Anderson, Girvin, and NAAMJP had standing, it granted Defendants summary judgment on the merits on all of Plaintiffs' claims. The district court also declined to allow John Doe to join this action because his challenges did not arise out of the same transactions or occurrences as those of the remaining Plaintiffs. Anderson, Girvin, and NAAMJP timely filed this appeal.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 1331. We review a grant of summary judgment de novo. We determine, viewing the evidence in the light most favorable to the nonmoving party, whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact. Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 954 (9th Cir.2013).

DISCUSSION

I. Standing

We first address whether Anderson, Girvin, and NAAMJP have standing to challenge the AOM Rule. Plaintiffs assert that they are injured by Arizona's AOM Rule. Defendants respond that this case does not present a justiciable case or controversy under Article III of the Constitution because Anderson, Girvin, and NAAMJP lack the requisite injury, and because their claims do not qualify for the relaxed standing analysis utilized in First Amendment cases.

A. Article III Standing

To establish Article III standing, Girvin, Anderson or NAAMJP must show that they suffered a concrete injury, that there is a causal connection between the injury and Defendants' conduct, and that the injury will likely be redressed by a favorable decision from this court. See Susan B. Anthony List v. Driehaus, ––– U.S. ––––, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014).

Girvin alleges an injury that meets Article III requirements. She took and failed the UBE. She is currently working in Scottsdale, Arizona, but is unable to practice as an Arizona attorney. Although she has not applied to be admitted to the Arizona Bar pursuant to the AOM Rule, such an application would be futile because she is a member of the State Bar of California, which does not have reciprocity with Arizona. Taniguchi v. Schultz, 303 F.3d 950, 957 (9th Cir.2002) (“We have consistently held that standing does not require exercises in futility.”).

Since Girvin establishes Article III standing, an analysis of Anderson and NAAMJP's standing is unnecessary. See California ex rel. Imperial Cnty. Air Pollution Control Dist. v. U.S. Dep't of the Interior, 767 F.3d 781, 789 (9th Cir.2014) (“We need not address the standing of each plaintiff if we conclude that any plaintiff has standing.”) (citing Nat'l Ass'n of Optometrists & Opticians v. Brown, 567 F.3d 521, 523 (9th Cir.2009) ).

B. First Amendment Standing

Because an analysis of Girvin and Anderson's First Amendment standing requires us to delve into the merits of their claims, it is sufficient to note at this point of our opinion that the AOM Rule does not chill speech, nor does it infringe on attorneys' rights to be present in court and express themselves. Even if attorneys are ineligible to be admitted in Arizona on motion, they may still gain admission by passing the UBE. The presence of alternative means to gain admission limits the amount of speech that might otherwise be restricted by the AOM Rule, and suggests that Anderson does not have First Amendment standing.

NAAMJP does not have First Amendment standing. NAAMJP argues that it possesses First Amendment standing based on Citizens United v. Federal Election...