Scheer v. Kelly

Citation817 F.3d 1183
Decision Date04 April 2016
Docket NumberNo. 14–55243.,14–55243.
Parties Marilyn S. SCHEER, an individual, Plaintiff–Appellant, v. Patrick KELLY, in his official capacity as President of the Board of Trustees of the State Bar of California; Joann Remke, in her official capacity as the Presiding Judge of the California State Bar Court; Kenneth E. Bacon, in his official capacity as Presiding Arbitrator of the State Bar of California, Defendants–Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Marilyn S. Scheer (argued), Woodland Hills, CA, pro se PlaintiffAppellant.

Michael von Loewenfeldt (argued) and Julie A. Stockton, Kerr & Wagstaffe LLP, San Francisco, CA; Thomas A. Miller, Lawrence C. Yee, and Tracey McCormick, Office of General Counsel, State Bar of California, San Francisco, CA, for DefendantsAppellees.

Before: MARSHA S. BERZON and JOHN B. OWENS, Circuit Judges and ALGENON L. MARBLEY,* District Judge.

OPINION

BERZON

, Circuit Judge:

Marilyn Scheer, a lawyer in California, challenges California's procedures for attorney discipline. Scheer argues that California violated her constitutional rights by not providing her meaningful judicial review in a fee dispute between herself and a client. She also asserts that the rules governing the California State Bar's disciplinary procedures are facially unconstitutional. The State Bar responds that Scheer's claims are meritless, and that in any event they are barred by the Rooker–Feldman doctrine and the statute of limitations for actions brought under 42 U.S.C. § 1983

.

The State Bar is correct that Scheer's as-applied challenges are barred by the Rooker–Feldman doctrine. But the State Bar misreads this Court's statute-of-limitations decision in Action Apartment Ass'n, Inc. v. Santa Monica Rent Control Board, 509 F.3d 1020, 1026–27 (9th Cir.2007)

, which only applies to facial challenges involving property rights. Scheer's facial claims are not time-barred. They are, however, meritless, and so the district court correctly dismissed Scheer's complaint.

I. Background

A client of Scheer's sought a refund of a fee Scheer had charged him. The client obtained an arbitration award against Scheer for approximately $5,000, and sought enforcement of the award via the State Bar's administrative enforcement proceedings. The award was enforced but Scheer failed to repay the fee. After negotiations between Scheer, the client, and the Bar to resolve the matter failed, the State Bar's administrative tribunal transferred Scheer to the involuntary inactive enrollment list, suspending her license to practice law.

Scheer challenged the decision via the State Bar's internal review procedures, Cal. State Bar R. 5.360

–70, but did not succeed. She then filed a petition for review in the California Supreme Court, which was denied. Next, Scheer filed suit against the State Bar in the U.S. District Court for the Central District of California, alleging that its attorney discipline system violates attorneys' First Amendment and Fourteenth Amendment rights. The district court granted the State Bar's motion to dismiss, holding that Scheer's as-applied claims were barred by the Rooker–Feldman doctrine and her facial claims failed on their merits. Scheer timely appealed.

II

Scheer's as-applied claims are barred under the Rooker–Feldman doctrine. Her challenge to the State Bar's decision in her own case is a de facto appeal of the Supreme Court of California's denial of her petition for review, "brought by [a] state-court loser[ ] ... inviting district court review and rejection of [the state court's] judgments." Skinner v. Switzer, 562 U.S. 521, 532, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011)

(quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) ). The Rooker–Feldman doctrine applies to such challenges, even where the relevant state court decision is a denial of discretionary review. Craig v. State Bar of Cal., 141 F.3d 1353, 1355 n. 3 (9th Cir.1998).

III

The State Bar argues that Scheer's facial challenges to California's statutes and regulations were barred by the statute of limitations, relying on Action Apartment Ass'n, Inc. v. Santa Monica Rent Control Board, 509 F.3d 1020 (9th Cir.2007)

. The State Bar asserts that Action Apartment held that the statute of limitations for facial challenges brought under 42 U.S. § 1983 begins running at the time the challenged statute or ordinance was enacted. We disagree.

In Action Apartment, this Court considered a facial challenge to a municipal rent control ordinance brought by an association of landlords under 42 U.S.C. § 1983

. 509 F.3d at 1022. The landlords argued that the ordinance deprived them of their property rights in violation of the Fourteenth Amendment's substantive due process protections. Id. at 1026. Because the challenged ordinance had existed in one form or another for decades, this Court had to decide how to apply the two-year statute of limitations for § 1983 actions. We adopted a principle used in the context of facial challenges brought under the Takings Clause of the Fifth Amendment—that "the cause of action accrues on the date that the challenged statute or ordinance went into effect." Id. at 1027

(citing De Anza Props. X, Ltd. v. County of Santa Cruz, 936 F.2d 1084, 1087 (9th Cir.1991) ). Because the relevant provisions of the ordinance had been enacted more than two years before the claim was brought, Action Apartment held that the landlords' claim was time-barred. Id.

The State Bar vastly overreads Action Apartment. It asserts that Action Apartment 's holding applies to all facial challenges to statutes and ordinances, not just those premised on injuries to property rights. But Action Apartment and the cases it cites are grounded in an analysis that applies only in the context of injury to property. In that context, "the basis of a facial challenge is that the very enactment of the statute has reduced the value of the property or has effected a transfer of a property interest. This is a single harm, measurable and compensable when the statute is passed." Guggenheim v. City of Goleta, 638 F.3d 1111, 1119 (9th Cir.2010)

(en banc) (quoting Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir.1993) ). After a law is enacted, the price of the property is affected, and downstream purchasers of the property will pay less for the property because of the alleged taking. "A landowner who purchased land after an alleged taking," therefore, "has suffered no injury." Carson Harbor Village Ltd. v. City of Carson, 37 F.3d 468, 476 (9th Cir.1994), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.1997).1 As Action Apartment noted, this logic from the takings context "applies with equal force" to the claimed deprivation of a property right in violation of substantive due process. 509 F.3d at 1027.

Action Apartment did state, in passing, that "any facial injury to any right should be apparent upon passage and enactment of a statute." Id. But, given the context, it is clear that, outside the property rights context, this statement was meant to apply only to individuals actually affected by a statute at the time of its enactment. Outside the realm of property rights, the more discrete reasoning of Action Apartment is not pertinent. Many statutes and ordinances do not just cause "a single harm, measurable and compensable when the statute is passed." Guggenheim, 638 F.3d at 1119

(quoting Levald, 998 F.2d at 688 ).

An unconstitutionally vague statute, for instance, may pose "ongoing harms" to those who are unsure if their actions fall within its ambit. See Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir.2013)

. Laws that violate the First Amendment may similarly place an "ongoing chill upon speech" felt by individual speakers as they contemplate communication. Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 336, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). Such laws, moreover, could affect organizations that did not exist when the laws were first enacted, or individuals who were not at that time so situated as to be affected by the regulation—or not even born yet. Injuries occasioned by such statutes would not be apparent, or even extant, at the time of their enactment to everyone later impacted by them.

The State Bar's reading of Action Apartment also runs into a thicket of justiciability problems. The court rule providing for discretionary review that Scheer challenges went into effect in 1991. According to the State Bar, then, Scheer would have had to bring her facial challenge before the end of 1993. But at that point, she had not been subject to discipline by the State Bar, nor is there any reason to think that such discipline would have been foreseeable. If Scheer had tried to bring her case within the State Bar's asserted statute of limitations, she would have had severe problems establishing standing. See, e.g., Clapper v. Amnesty Int'l U.S.A., –––U.S. ––––, 133 S.Ct. 1138, 1147–48, 185 L.Ed.2d 264 (2013)

; Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir.2010). And the State Bar's approach to the statute of limitations would bar facial challenges even by lawyers subject to the Bar's disciplinary system who had not been lawyers—or had been small children—in 1993. Their cases would be time-barred before they could even be brought, an absurd result.

Given these problems, it is unsurprising that such a reading of Action Apartment is contradicted by this Court's precedents. If a facial challenge could only be brought against a statute or ordinance within the limitations period as measured by the enactment's effective date, the vast majority of currently extant statutes and ordinances would be beyond a facial challenge. But this Court regularly hears—and upholds—facial challenges to decades-old statutes, and has done so in the years since Action Apartment.

Desertrain v. City of Los Angeles, 754 F.3d 1147, 1149 (9th Cir.2014)

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