Russell Thaw v. Jefferson Sessions
712 F. App'x 604
| 9th Cir. | 2017Background
- District of Arizona Local Civil Rule 83.1(a) requires district-court bar members to be active, in-good-standing members of the Arizona State Bar.
- Thaw and other attorneys (Appellants) seek to practice in the district court without joining the Arizona Bar and challenged LRCiv 83.1(a) as statutorily and constitutionally invalid.
- The district court dismissed the complaint; Appellants appealed to the Ninth Circuit.
- Appellants raised multiple claims: conflict with Supreme Court supervisory authority (Frazier), limits in 28 U.S.C. §§ 2071–2072, First Amendment (speech, association, petition), Supremacy Clause (federal field preemption over patent practice), and full faith and credit under 28 U.S.C. § 1738.
- The Ninth Circuit considered prior circuit precedent (notably Berch and Giannini), statutory construction of §§ 2071–2072, and disclosed waiver of some constitutional claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether LRCiv 83.1(a) conflicts with the Supreme Court's supervisory power as described in Frazier | Frazier's supervisory authority precludes a district rule excluding out-of-state-barred attorneys | Frazier's supervisory power is not available to lower courts and did not create heightened scrutiny for interstate attorney restrictions | Court: Frazier does not support Appellants; supervisory rule not available to district courts or this court; claim fails |
| Whether §§ 2071–2072 prohibit local rules that abridge substantive rights | §§ 2071 and 2072 bar local rules that abridge, enlarge, or modify substantive rights, so LRCiv 83.1(a) is invalid | § 2072(b) limits only Supreme Court rules under § 2072(a); LRCiv 83.1(a) is a local rule and need only be consistent with Acts of Congress and Supreme Court rules, which Appellants did not show it conflicts with | Court: § 2072(b) inapplicable to local rules; Appellants failed to show inconsistency with Acts of Congress or Supreme Court rules; claim fails |
| Whether LRCiv 83.1(a) violates First Amendment rights (speech, association, petition) | Rule unconstitutionally attenuates free speech, association, and petition rights by excluding non-Arizona-bar attorneys | Prior Ninth Circuit decision (Berch) rejects similar First Amendment challenges to local admission rules | Court: Following Berch, Appellants’ First Amendment claims fail |
| Whether LRCiv 83.1(a) violates Supremacy Clause or full faith and credit (28 U.S.C. § 1738) by delegating federal jurisdiction or ignoring out-of-state credentials | Rule improperly assigns federal admission control to the Arizona Supreme Court and fails to give effect to out-of-state admission records | The federal court adopted a state-bar requirement; no direct conflict with federal law; Appellants produced no authenticated state act/record to trigger § 1738 protection | Court: No Supremacy Clause violation; § 1738 claim fails for lack of an authenticated state record establishing entitlement to practice |
Key Cases Cited
- Frazier v. Heebe, 482 U.S. 641 (Supreme Court 1987) (discusses Supreme Court supervisory power over lower courts)
- Lamie v. U.S. Tr., 540 U.S. 526 (Supreme Court 2004) (plain statutory-language canon of interpretation)
- National Ass'n for Advancement of Multijurisdiction Practice v. Berch, 773 F.3d 1037 (9th Cir. 2014) (rejecting similar First Amendment challenges to local admission rules)
- Giannini v. Real, 911 F.2d 354 (9th Cir. 1990) (holding full faith and credit claim requires an act/record establishing entitlement to practice)
- United States v. Kama, 394 F.3d 1236 (9th Cir. 2005) (discussing waiver when issues not argued on appeal)