Nat'Lass'N v. Berch

• Citation: 973 F.Supp.2d 1082
• Decision Date: 19 September 2013
• Docket Number: No. CV–12–1724–PHX–BSB.,CV–12–1724–PHX–BSB.
• Parties: NATIONAL ASSOCIATION FOR the ADVANCEMENT OF MULTIJURISDICTION PRACTICE; Allison Girvin; Mark Anderson; and Mark Kolman, Plaintiffs, v. Hon. Rebecca White BERCH, Chief Justice; Hon. W. Scott Bales, Vice Chief Justice; Hon. John Pelander; and Hon. Robert M. Brutinel, Justices, Defendants.
• Court: U.S. District Court — District of Arizona

973 F.Supp.2d 1082

NATIONAL ASSOCIATION FOR the ADVANCEMENT OF MULTIJURISDICTION PRACTICE; Allison Girvin; Mark Anderson; and Mark Kolman, Plaintiffs,

v.Hon. Rebecca White BERCH, Chief Justice; Hon. W. Scott Bales, Vice Chief Justice; Hon. John Pelander; and Hon. Robert M. Brutinel, Justices, Defendants.

No. CV–12–1724–PHX–BSB.

United States District Court, D. Arizona.

Sept. 19, 2013.

Grant Joseph Savoy, SKS Law, Joseph Robert Giannini, Attorney at Law, Los Angeles, CA, for Plaintiffs.

John Doe, pro se.

Eryn Marie McCarthy, Office of the Attorney General, Phoenix, AZ, for Defendants.

ORDER

BRIDGET S. BADE, United States Magistrate Judge.

In this matter, Plaintiffs, the National Association for the Advancement of Multijurisdiction Practice (the NAAMJP), Allison Girvin (Girvin), Mark Anderson (Anderson), and Mark Kolman (Kolman), challenge Arizona Supreme Court Rule 34(f), which provides for admission on motion to the Arizona Bar (the AOM Rule). (Doc. 36.) Plaintiffs allege that Arizona's AOM Rule is unconstitutional because it allows admission on motion for attorneys admitted in states having reciprocal admission rules for Arizona attorneys (reciprocity states), but requires attorneys admitted to practice law in states that do not have reciprocal admission rules (non-reciprocity states) to take the uniform bar examination (UBE) to gain admission to the Arizona Bar. ( Id.) Plaintiffs seek declaratory and injunctive relief; specifically Plaintiffs request an order declaring Arizona's AOM Rule unconstitutional and enjoining its enforcement. ( Id. at ¶ 97.)

The parties have filed several dispositive motions. Plaintiffs have filed a motion for summary judgment (Doc. 28), and Defendants have filed a motion to dismiss ¹ (Doc. 52) and a cross motion for summary judgment. ² (Doc. 54.) After the dispositive motions were fully briefed, the NAAMJP and Kolman filed a motion to admit Kolman to the Arizona Bar. (Doc. 90.) Plaintiffs also filed a motion to amend the Second Amended Complaint to add a party. (Doc. 95.) As set forth below, the Court grants summary judgment in Defendants' favor on Plaintiffs' claims and denies Defendants' motion to dismiss as moot. The Court also denies Plaintiffs' motion for summary judgment,³ denies Plaintiffs' motion to admit Kolman to the Arizona Bar, and denies Plaintiffs' motion to amend.

I. BackgroundA. Plaintiff NAAMJP and the Individual Plaintiffs

The NAAMJP is a non-profit corporation that describes its mission as improving the legal profession by promoting the adoption of the American Bar Association's (ABA) recommendation for reciprocal bar admission. (Doc. 36 at 4–5; Russell Decl. ¶¶ 1 and 3.) ⁴ Plaintiffs' counsel Joseph Giannini, who is also a director of the NAAMJP (Doc. 54–1 ¶ 32; Doc. 70–1 ¶ 32), has filed numerous challenges to state and federal bar admission requirements on a variety of grounds, including the Supremacy Clause, the Commerce Clause, Title VII, the Fifth Amendment right to property and right to travel, and the Full Faith and Credit Clause. See Paciulan v. George, 229 F.3d 1226, 1228 (9th Cir.2000) (citing McKenzie v. Rehnquist, 1999 WL 1215630 (D.C.Cir. Nov. 22, 1999); Morissette v. Yu, 1994 WL 123871 (9th Cir. Apr. 11, 1994); Giannini v. Real, 911 F.2d 354 (9th Cir.1990); Giannini v. Comm. of Bar Exam'rs, 847 F.2d 1434 (9th Cir.1988)).

Plaintiff Kolman has been a licensed Maryland attorney since 1971. (Doc. 36 at 6; Kolman Decl. ¶ 1.) Kolman has also been admitted by waiver to practice in the District of Columbia, which has reciprocity with Arizona. ⁵ (Doc. 69 at 9 n. 3) Kolman is a partner with Dickstein Shapiro LLP in Washington, D.C. (Kolman Decl. ¶ 4.) He moved to Arizona in 2008. ( Id. at ¶ 11.) Kolman attests that he has obtained a certificate of completion of the Arizona Law for Admission on Motion Course and passed the Multi–State Professional Responsibility Examination (MPRE). ( Id. at ¶ 13.) He also attests that he has provided the Arizona Committee on Character and Fitness the documentation required for admission on motion. ( Id.) Kolman applied for, and was denied, admission on motion to the Arizona Bar because his state of licensing, Maryland, does not have reciprocity with Arizona. ( Id. at ¶ 14.) On February 24, 2011, Kolman filed a petition for review with the Arizona Supreme Court. ( Id. at ¶ 15.) The court denied his petition on April 19, 2011. ( Id.)

Plaintiff Girvin is a licensed California attorney. ( Id. at 8; Girvin Decl. ¶ 2.) She moved to Arizona in 2012. (Doc. 36 at 8.) Girvin received a score of 272 on the UBE administered in Arizona (Arizona UBE) in July 2012; ⁶ her score was one point below a passing score of 273. (Girvin Decl. ¶¶ 13, 15.) Girvin alleges that she failed the examination “after counsel for defendants communicated [defense counsel] had the connections, power, and ruthless intent to retaliate for filing this lawsuit.” (Doc. 36 at 8; Girvin Decl. ¶¶ 16–17.) Girvin scored 134.6 on the MBE, a portion of the bar examination consisting of 200 multiple choice questions. (Girvin Decl. at ¶¶ 15, 19.) Girvin attests that the Arizona Supreme Court and the National Conference of Bar Examiners have refused to disclose a breakdown of her MBE score, or her state and national rank on the MBE test. ( Id. at ¶ 20.) Girvin scored 137.4 on the MEE, the essay portion of the UBE. ( Id. at ¶ 15.) She attests that the Arizona Supreme Court has refused to provide a breakdown of her scores on the MEE. ( Id. at ¶ 21.)

Plaintiff Anderson is a licensed Montana attorney. (Doc. 36 at 9; Anderson Decl. ¶ 1.) Anderson attests that Arizona's rules regarding admission on motion have deterred him from moving to Arizona to practice law. (Anderson Decl. ¶¶ 1–2.) He alleges that he will move to Arizona “if Arizona abrogates its tit-for-tat bar admission Rule....” (Doc. 36 at 9.)

B. Admission to the Arizona Bar and Rule 34

The Rules of the Arizona Supreme Court provide three methods of admission to the practice of law in Arizona: (1) admission by Arizona UBE (Ariz. R. Sup.Ct.34(a)); (2) admission on motion (Ariz. R. Sup.Ct.34(f)); and (3) admission by transfer of UBE score from another jurisdiction (Ariz. R. Sup.Ct.34(h)).

The Arizona Supreme Court Committees on Examinations and Character and Fitness make initial determinations regarding admission to the bar based on educational and fitness findings. (DSOF ¶¶ 1,4, Ex. A.) ⁷ A person aggrieved by a decision of either Committee may file a petition for review with the Arizona Supreme Court pursuant to Ariz. R. Sup.Ct. 36(g)(1). The Arizona Supreme Court has exclusive jurisdiction to make the ultimate decision regarding who may practice law in Arizona and under what conditions. (DSOF ¶ 2; Ex. A.); see alsoAriz. R. Sup.Ct. 31.

Plaintiffs challenge the Arizona Supreme Court's rule governing admission on motion, Rule 34(f)(1). When Plaintiffs filed this matter, Rule 34(f) provided that:

1. An applicant who meets the requirements of (A) through (H) of this paragraph (f)(1) may, upon motion, be admitted to the practice of law in this jurisdiction. The applicant shall:

A. have been admitted by bar examination to practice law in another jurisdiction allowing for admission of licensed Arizona lawyers on a basis equivalent to this rule;

* * *

C. have been primarily engaged in the active practice of law in one or more states, territories, or the District of Columbia for five of the seven years immediately preceding the date upon which the application is filed.

Ariz. R. Sup.Ct. 34(f)(A) and (C).

Effective July 1, 2013, the Arizona Supreme Court expanded Rule 34(f)(1) to allow attorneys to apply for admission on motion to the Arizona Bar if they have been “admitted by bar examination to practice law in one or more states, territories, or the District of Columbia, and have been admitted to and engaged in the active practice of law for at least five years in another jurisdiction or jurisdictions allowing for admission of licensed Arizona lawyers on a basis equivalent to this rule.” Ariz. R. Sup.Ct. 34(f) (2013).

Under this amendment, attorneys who were admitted by bar examination in a non-reciprocal jurisdiction, and then became admitted by motion and practiced in a jurisdiction that Arizona deems reciprocal, such as the District of Columbia, may also apply for admission on motion. Although this amendment to Rule 34(f) likely increases the number of attorneys eligible for admission on motion, it does not render the pending action moot because it does not abrogate the reciprocity requirement at the heart of Plaintiffs' challenge to that rule.

II. Judicial Notice

Before considering the pending motions, the Court considers Plaintiffs' request that the Court take judicial notice that the State of Montana adopted the UBE in July 2013. (Docs. 87 and 88.) Defendants oppose this request and argue that Montana's adoption of the UBE is not material to the issues before the Court. (Doc. 89.) Defendants also argue that Plaintiffs' request for judicial notice improperly includes additional arguments related to issues that the parties have fully briefed.

Under Federal Rule of Evidence 201, a trial court may take judicial notice of facts “if requested by the party and supplied with the necessary information.” Fed.R.Evid. 201(d). A fact is appropriate for judicial notice if it is “not subject to reasonable dispute because it is (1) generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined by from sources whose accuracy cannot reasonably be questioned.” Id. at 201(b). Facts contained in public records are considered appropriate subjects of judicial notice. Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 (9th Cir.2006).

The Court confirmed that the Montana Supreme Court adopted the UBE on July 3, 2013 by consulting the National Conference of Bar Examiners website, www. ncbex. org and the Montana Bar Association's website, www. montanabar. org. Alt...