National Ass'n for the Advancement of Multijurisdiction Practice v. Berch
2014 U.S. App. LEXIS 23091
| 9th Cir. | 2014Background
- Plaintiffs NAAMJP, Allison Girvin, and Mark Anderson challenged Arizona Supreme Court Rule 34(f) (the AOM Rule), which allows admission on motion to the Arizona Bar only for attorneys from jurisdictions that grant equivalent admission to Arizona attorneys; attorneys from non-reciprocal states must pass the UBE.
- Girvin (California bar) failed the UBE by one point, lives in Arizona, has not applied under the AOM Rule because California lacks reciprocity; Anderson (Montana bar) has not taken the UBE and contends the rule blocks his move to Arizona.
- NAAMJP is an organization promoting reciprocal admission; Plaintiffs sought to add a John Doe plaintiff (Florida bar; admitted on motion in Texas and Tennessee but not recently practicing there) who feared retaliation.
- District court granted summary judgment for the Arizona Supreme Court justices, denied joinder of John Doe, and Plaintiffs appealed.
- Ninth Circuit considered standing and the merits under First Amendment, Fourteenth Amendment (Equal Protection and Privileges & Immunities), and the Dormant Commerce Clause, and affirmed the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | Girvin and others are injured by being unable to gain admission on motion | Rule does not prevent admission by UBE; standing lacking for some plaintiffs | Girvin has Article III standing (futility exception); that suffices for the appeal |
| Equal Protection (14th) | AOM Rule discriminates against attorneys from non-reciprocal states | Rule is a permissible regulation of the bar, not targeting a suspect class or fundamental right | Rational-basis review applies; rule is rationally related to legitimate state interests and upheld |
| Privileges & Immunities (Art. IV §2) | Rule infringes the right to practice law of out-of-state citizens | Rule is residency-neutral; applies equally to Arizona citizens and noncitizens based on state-of-admission, not residency | Clause not violated; rule is neutral and serves substantial state interests |
| Dormant Commerce Clause | Rule burdens interstate commerce by disadvantaging attorneys from non-reciprocal states | Rule regulates profession even-handedly and offers UBE as alternative; any burden is incidental | Upheld under Pike balancing; alternative admission via UBE mitigates burden |
| First Amendment (free speech/association/petition) | Rule chills speech, is a prior restraint, and restricts association/petitioning | Rule is a time/place/manner restriction on practice; alternative routes reduce chilling; does not block access to courts | Treated as reasonable time/place/manner restriction; Plaintiffs lack relaxed First Amendment standing and claims fail |
| Joinder/Intervention (John Doe) | John Doe’s claims attack related amendments and sought to join under Rule 20 | Defendants argued his claims did not arise from same transaction/occurrence | District court did not abuse discretion; joinder denied because John Doe’s claim was distinct |
Key Cases Cited
- Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014) (standing elements and redressability)
- Taniguchi v. Schultz, 303 F.3d 950 (9th Cir. 2002) (futility exception to standing for admission challenges)
- Lupert v. Cal. State Bar, 761 F.2d 1325 (9th Cir. 1985) (bar admission restrictions reviewed under rational basis)
- Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985) (practice of law as a privilege under Art. IV P&I)
- Broadrick v. Oklahoma, 413 U.S. 601 (1973) (relaxed standing in First Amendment facial challenges)
- Mothershed v. Justices of Sup. Ct., 410 F.3d 602 (9th Cir. 2005) (treating bar admission regulation as time/place/manner restriction)
- Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) (balancing test for incidental burdens on interstate commerce)
- Saenz v. Roe, 526 U.S. 489 (1999) (right of new residents to be treated equally by state)
- Scariano v. Justices of Supreme Court of Indiana, 38 F.3d 920 (7th Cir. 1994) (alternative bar-exam route mitigates Dormant Commerce Clause concerns)