87 F.4th 1021
9th Cir.2023Background
- The California State Bar is established by the California Constitution and described by the California Supreme Court as the judicial branch’s administrative arm for attorney admission and discipline.
- Benjamin Kohn, a licensed California attorney, sued the State Bar in federal court seeking damages and injunctive relief for alleged violations of the ADA, Rehabilitation Act, and California statutes arising from denial of bar‑exam accommodations.
- The district court dismissed Kohn’s suit on Eleventh Amendment sovereign‑immunity grounds, relying on Ninth Circuit precedents (Lupert, Hirsh) treating the State Bar as an arm of the state.
- The Ninth Circuit took the case en banc to (1) reassess the Mitchell multi‑factor arm‑of‑the‑state test and (2) reexamine whether the California State Bar is entitled to Eleventh Amendment immunity.
- The en banc court adopts the D.C. Circuit’s three‑factor framework (state intent, state control, effect on treasury) in place of the Mitchell factors, applies it to the State Bar, and holds the State Bar is an arm of the state entitled to Eleventh Amendment immunity; the case is remanded for further proceedings consistent with that holding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Ninth Circuit should retain the Mitchell five‑factor test for arm‑of‑the‑state analysis | Kohn: Continue to prioritize the treasury/financial‑responsibility factor (per prior Ninth practice). | State Bar: Mitchell is outdated; Supreme Court decisions require a retooled test. | The court rejects Mitchell and adopts the D.C. Circuit three‑factor test (intent, control, treasury). |
| Whether the California State Bar is an "arm of the state" entitled to Eleventh Amendment immunity | Kohn: Bar is a public corporation that functions independently and should not enjoy sovereign immunity. | State Bar: Codified in the state constitution, supervised by CA Supreme Court, and structured under state law—so it is an arm of the state. | Applying the three factors, the court holds the State Bar is an arm of the state and immune from suit in federal court. |
| Whether the immunity inquiry is entity‑level or activity‑specific | Kohn: immunity should depend on the particular function at issue (activity‑based). | State Bar: the court should adopt an entity‑based test for predictability. | The court adopts an entity‑based approach (status applies to the entity unless state law changes). |
Key Cases Cited
- Hess v. Port Auth. Trans‑Hudson Corp., 513 U.S. 30 (1994) (frames Eleventh Amendment analysis around the twin concerns of state dignity and solvency and emphasizes treasury impact)
- Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) (Eleventh Amendment protects state dignity as well as treasury solvency)
- Regents of the Univ. of Cal. v. Doe, 519 U.S. 425 (1997) (inquiry focuses on relationship between state and entity, including whether judgment would be paid by the state)
- Edelman v. Jordan, 415 U.S. 651 (1974) (bar on suits that would require payment from the state treasury)
- Lake Country Ests., Inc. v. Tahoe Reg'l Plan. Agency, 440 U.S. 391 (1979) (structure and fiscal relationship of entity to state relevant to immunity)
- Mitchell v. L.A. Cmty. Coll. Dist., 861 F.2d 198 (9th Cir. 1988) (Ninth Circuit’s prior multi‑factor test for arm‑of‑the‑state status, retired here)
- Puerto Rico Ports Auth. v. Fed. Mar. Comm'n, 531 F.3d 868 (D.C. Cir. 2008) (articulates three‑factor test—state intent, control, treasury—adopted by the Ninth Circuit)
- Lupert v. Cal. State Bar, 761 F.2d 1325 (9th Cir. 1985) (prior Ninth Circuit precedent recognizing California State Bar immunity)
- Hirsh v. Justs. of the Sup. Ct. of Cal., 67 F.3d 708 (9th Cir. 1995) (per curiam) (reaffirmed State Bar immunity under prior Ninth law)
- Keller v. State Bar of California, 496 U.S. 1 (1990) (Supreme Court recognized the Bar’s advisory/associational aspects and constrained state‑agency character in First Amendment context)