National Conference of Personal Managers, Inc. v. Brown
690 F. App'x 461
| 9th Cir. | 2017Background
- NCOPM sued California officials (Governor, Labor Commissioner) challenging enforcement/interpretation of the California Talent Agencies Act (TAA) as violating the Fourteenth Amendment (vagueness/due process), the Commerce Clause (dormant commerce), and the First Amendment.
- District court dismissed NCOPM’s claims for failure to state a claim; NCOPM appealed.
- The Governor was sued but the district court found him shielded by sovereign immunity for lack of a direct enforcement connection; the Labor Commissioner remained a proper defendant because statutes tie enforcement authority to that office.
- NCOPM was found to have associational standing for declaratory and injunctive relief based on past state enforcement and reasonable apprehension of future enforcement against its members.
- The district court dismissed with prejudice NCOPM’s claims: vagueness (Cal. Lab. Code §§ 1700.4, 1700.5), dormant Commerce Clause (various TAA provisions), and First Amendment; the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sovereign immunity of Governor | Governor is proper defendant for statewide enforcement of TAA | General law-execution role insufficient to overcome sovereign immunity | Governor immune; no requisite enforcement connection under Ex Parte Young |
| Labor Commissioner as proper defendant | Agency enforcement targets NCOPM members; commissioner enforces TAA | Commissioner is enforcement official subject to suit | Commissioner has requisite enforcement connection and may be sued |
| Vagueness / Due Process (Cal. Lab. Code §§ 1700.4, 1700.5) | "Procure" and related terms are vague facially and as-applied; fail to give notice | Statutory terms are used elsewhere and have ordinary dictionary meaning; adequate notice | Statutes are not unconstitutionally vague; claim dismissed with prejudice |
| Dormant Commerce Clause | TAA effectively bars out-of-state licensees and discriminates via fees and application of §1700.44(d) | TAA does not prohibit out-of-state licensees; provisions cited do not discriminate against interstate commerce | No dormant Commerce Clause violation; claim dismissed with prejudice |
| First Amendment | TAA restricts representation-related activity and burdens expressive conduct | TAA regulates nonexpressive professional conduct; subject only to rational-basis review | TAA regulates nonexpressive conduct; survives rational-basis review; claim dismissed with prejudice |
Key Cases Cited
- Ex Parte Young, 209 U.S. 123 (1908) (suit against state officials permitted only when official has enforcement connection)
- Grayned v. City of Rockford, 408 U.S. 104 (1972) (vagueness test: notice to a person of ordinary intelligence)
- Societe de Conditionnement en Aluminium v. Hunter Eng’g Co., 655 F.2d 938 (9th Cir. 1981) (associational standing standard for declaratory/injunctive relief)
- Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835 (9th Cir. 2002) (general enforcement authority insufficient to subject governor to suit)
- Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) (professional regulation that is not inherently expressive does not implicate the First Amendment)
- Marathon Entm’t, Inc. v. Blasi, 174 P.3d 741 (Cal. 2008) (discussing TAA purposes and related precedent)
- W. Radio Servs. Co. v. Qwest Corp., 530 F.3d 1186 (9th Cir. 2008) (judicial notice standard)
- Wachs v. Curry, 16 Cal. Rptr. 2d 496 (Cal. Ct. App. 1993) (interpreting "procure" in employment context for TAA vagueness analysis)