George L. MOTHERSHED, Plaintiff-Appellant, v. JUSTICES OF THE SUPREME COURT; Clerk of the Supreme Court, State of Arizona; Supreme Court of Arizona Disciplinary Commission; Hearing Officer; Bar Counsel of Arizona State Bar Association; State of Oklahoma Justices of the Supreme Court; Oklahoma Professional Responsibility Tribunal of the Supreme Court, Chief Master; Oklahoma Professional Responsibility Tribunal of the Supreme Court, Trial Panel of February 1, 2002; General Counsel of Oklahoma Bar Association; Trial Counsel of Oklahoma Bar Association; Rudolph Hargrave, Oklahoma Supreme Chief Justice; Madeline Hargrave, Wife; Robert E. Lavender, Justice, Oklahoma Supreme Court; Maxine Lavender, Wife; Joseph M. Watt, Vice-Chief Justice, Oklahoma Supreme Court; Cathy Watt, Wife; Ralph B. Hodges, Justice, Oklahoma Supreme Court; Janelle Hodges, Wife; Marian P. Opala, Justice, Oklahoma Supreme Court; Jane Doe Opala, Wife; Daniel J. Boudreau, Justice, Oklahoma Supreme Court; Jane Doe Boudreau, Wife; Yvonne Kauger, Justice, Oklahoma Supreme Court; Ned Bastow, Husband; Hardy Summers, Justice, Oklahoma Supreme Court; Marilyn Summers, Wife; James Winchester, Justice, Oklahoma Supreme Court; Susan Winchester, Wife; J. Daniel Morgan, Chief Master, Professional Responsibility Tribunal of the Supreme Court of the State of Oklahoma; Jane Doe Morgan, Wife; J. Patrick Kent, Presiding Master, Professional Responsibility Tribunal of the Supreme Court of the State of Oklahoma; Jane Doe Kent, Wife; Robert L. Hert, Jr., Member of Trial Panel of the Professional Responsibility Tribunal of the Supreme Court of the State of Oklahoma; Jane Doe Hert, Wife; Dana Williams, Member of Trial Panel of the Professional Responsibility Tribunal of the Supreme Court of the State of Oklahoma; Dale Cabiness, Member of Trial Panel of the Professional Responsibility Tribunal of the Supreme Court of the State of Oklahoma; Jane Doe Cabiness, Wife; Dan Murdock, General Counsel, Supreme Court of Oklahoma; Jane Doe Murdock, Wife; Allen J. Welch, Bar Counsel, Oklahoma Supreme Court; Jane Doe Welch, Wife; Charles E. Jones, Chief Justice, Arizona Supreme Court; Jane Doe Jones, Wife; Ruth V. McGregor, Vice Chief Justice, Arizona Supreme Court; John Doe McGregor, Husband; Stanley Feldman, Justice, Arizona Supreme Court; Jane Doe Feldman, Wife; Rebecca White Berch, Justice, Arizona Supreme Court; John Doe Berch, Husband; Michael D. Ryan, Justice, Arizona Supreme Court; Jane Doe Ryan, Wife; Peter Cahill, Member of the Disciplinary Commission of the Supreme Court of Arizona; Jessica Gifford Funkhouser, Member of the Disciplinary Commission of the Supreme Court of Arizona; Cynthia L. Choate, Member of the Disciplinary Commission of the Supreme Court of Arizona; Barbara Atwood, Member of the Disciplinary Commission of the Supreme Court of Arizona; C. Alan Bowman, Member of the Disciplinary Commission of the Supreme Court of Arizona; Craig Mehrens, Member of the Disciplinary Commission of the Supreme Court of Arizona; Steven G. Nelson, Member of the Disciplinary Commission of the Supreme Court of Arizona; Loren J. Braud, Bar Counsel, Arizona Supreme Court aka Loren J. Broad; Jane Doe Braud, Wife aka Jane Doe Broad; John Pressley Todd, Hearing Office 7X, Arizona Supreme Court; Jane Doe Todd, Wife; Noel K. Dessaint, Clerk, Arizona Supreme Court; William M. Spence, Attorney; Jane Doe Spence, Wife, Defendants-Appellees.
No. 03-16878
United States Court of Appeals, Ninth Circuit
June 6, 2005
As Amended on Denial of Rehearing July 21, 2005
410 F.3d 602
Before: GOODWIN, BEEZER, and O‘SCANNLAIN, Circuit Judges.
LeslieAnn Haacke, Renaud Cook Drury Mesaros, P.A., Phoenix, AZ, argued the cause for the appellees; Terry Goddard, Attorney General, Phoenix, AZ, Rosa Mroz, Assistant Attorney General, Phoenix, AZ, N. Todd McKay, Renaud Cook Drury Mesaros, P.A., Phoenix, AZ, Charles K. Babb, Assistant Attorney General General, Oklahoma City, OK, and Allen J. Welch, Oklahoma Bar Association, Oklahoma City, OK, were on the brief.
O‘SCANNLAIN, Circuit Judge:
We must decide whether a disbarred attorney may collaterally attack his state bar disciplinary proceedings1 in federal court.
In 1999, the State Bar of Arizona initiated disciplinary proceedings against George L. Mothershed, an attorney who was licensed by the Oklahoma Bar Association but who lived and practiced in Arizona. In response to the disciplinary board‘s allegation that he had unlawfully practiced law in the State, Mothershed entered a special appearance and moved to dismiss the complaint on the ground that he had not received a summons. The hearing officer denied this motion, and Mothershed subsequently refused to participate further in the disciplinary proceedings. A default judgment was entered against him, and the Supreme Court of Arizona issued an order censuring Mothershed for engaging in the unauthorized practice of law. See In re Mothershed, No. SB-01-0076-D, 2001 Ariz. LEXIS 63 (2001).
The Oklahoma Bar Association thereafter initiated its own disciplinary proceedings against Mothershed. A three-member trial panel found that he had unlawfully practiced law in Arizona, and the Supreme Court of Oklahoma entered an order disbarring him. See State ex rel. Okla. Bar Ass‘n v. Mothershed, 66 P.3d 420, 428 (Okla.2003).
Mothershed responded by filing suit in the United States District Court for the District of Arizona against the Justices of the Oklahoma Supreme Court, the three members of the Oklahoma disciplinary trial panel, and several officials of the Oklahoma Bar Association (the “Oklahoma Defendants“). He also sued the Justices of the Arizona Supreme Court, the Clerk of the Arizona Supreme Court, the members of the Arizona Supreme Court Disciplinary Commission, the hearing officer in the Arizona disciplinary proceedings, and a state bar staff counsel (the “Arizona Defendants“). Mothershed alleged that the Arizona disciplinary proceedings were invalid because he had not been served with a summons. He contended that the Oklahoma proceedings were likewise defective because his hearing did not occur between thirty and sixty days after appointment of the trial panel, as required by Rule 6.7 of the Oklahoma Rules Governing Disciplinary Proceedings.2 Based upon these alleged procedural shortcomings, Mothershed asserted a claim under
Mothershed also contended that Arizona Supreme Court Rules 33(d) and 34,3 which set forth the pro hac vice admission requirements for out-of-state attorneys and the standards for admission to the State Bar of Arizona, violate Arizonans’ First Amendment right to consult with an attorney and contravene both the Sherman Antitrust Act,
After the defendants moved to dismiss the complaint on various grounds, the district court dismissed the Oklahoma defendants due to the absence of personal jurisdiction. The court later dismissed the claims against the Arizona defendants on the ground that Mothershed was improperly seeking review of the Arizona bar disciplinary proceedings in a lower federal court and that subject matter jurisdiction was therefore absent under the Rooker-Feldman doctrine. Mothershed timely appealed.
II
In the face of growing judicial uncertainty about the Rooker-Feldman doctrine‘s parameters, the Supreme Court recently reiterated that its applicability “is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. —, 125 S.Ct. 1517, 1521-22, 161 L.Ed.2d 454 (2005); see also Rooker v. Fid. Trust Co., 263 U.S. 413, 416 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462, 486-87, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).
We must therefore decide whether Mothershed‘s claims fall within the Rooker-Feldman doctrine‘s narrowed scope.
A
Under Rooker-Feldman, lower federal courts are without subject matter jurisdiction to review state court decisions, and state court litigants may therefore only obtain federal review by filing a petition for a writ of certiorari in the Supreme Court of the United States. See Rooker, 263 U.S. at 416 (holding that a federal district court lacked subject matter jurisdiction over a suit that effectively sought review of an Indiana state court‘s decision); Feldman, 460 U.S. at 486-87 (holding that a federal district court was without subject matter jurisdiction to entertain a challenge to a decision of the District of Columbia Court of Appeals); see also
The doctrine does not, however, prohibit a plaintiff from presenting a generally applicable legal challenge to a state statute in federal court, even if that statute has previously been applied against him in state court litigation. This distinction is well illustrated by the Feldman decision itself. There, two aspiring attorneys had petitioned the District of Columbia Court of Appeals for a waiver of a D.C. bar rule requiring applicants to have graduated from an accredited law school. Feldman, 460 U.S. at 466. After the Court of Appeals denied their petitions, the plaintiffs filed suit in federal district court challenging both the D.C. bar rule‘s general constitutionality and the District of Columbia court‘s decision in their particular cases. Id. at 468, 472. The Supreme Court held that the district court possessed subject matter jurisdiction over the former claim but not the latter. Id. at 486-87. The Court explained:
United States district courts ... have subject-matter jurisdiction over general challenges to state bar rules, promulgat
ed by state courts in nonjudicial proceedings, which do not require review of a final state-court judgment in a particular case. They do not have jurisdiction, however, over challenges to state-court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court‘s action was unconstitutional. Review of those decisions may be had only in this Court.
Id. at 486; see also id. at 482 n. 16 (“‘[O]rders of a state court relating to the admission, discipline, and disbarment of members of its bar may be reviewed only by the Supreme Court of the United States on certiorari to the state court, and not by means of an original action in a lower federal court.‘” (quoting MacKay v. Nesbett, 412 F.2d 846, 846 (9th Cir.1969)) (alteration in original)).
Similarly, in Craig v. State Bar of California, 141 F.3d 1353, 1354 (9th Cir.1998) (per curiam), the plaintiff filed a
plaintiff can challenge the state supreme court‘s denial of bar admission to a particular applicant, the validity of the state‘s rules governing admission, or both. Lower federal courts lack subject matter jurisdiction over the first type of challenge.... In contrast, a general attack on a state‘s admissions rules may be heard by lower federal courts because a state supreme court acts in a nonjudicial capacity when it promulgates such rules.
Id. (citation omitted).
B
Mothershed alleges that the Oklahoma defendants denied him due process and committed various state law torts because the Oklahoma bar disciplinary panel did not hold its hearing within the thirty-to-sixty-day time frame required by Rule 6.7 of the Rules Governing Disciplinary Proceedings. Because Mothershed does not contend that Rule 6.7 is systematically disregarded in all attorney disciplinary proceedings or that the rule is itself facially invalid, he is not asserting a “general challenge[] to [a] state bar rule[].” Feldman, 460 U.S. at 486. Rather, Mothershed is alleging that the Oklahoma defendants failed to apply Rule 6.7 during his own state bar disciplinary hearing, which constitutes a “challenge[] to [a] state-court decision[] in [a] particular case[].” Id. Under the Rooker-Feldman doctrine, the district court lacked subject matter jurisdiction to review Mothershed‘s Oklahoma disciplinary proceedings, and we therefore affirm the dismissal of the Oklahoma defendants.4
C
Mothershed‘s claims premised upon the alleged absence of a summons directing him to appear at the Arizona disciplinary
D
Mothershed also alleges, however, that the admission requirements set forth in Arizona Supreme Court Rules 33(d) and 34 violate Arizonans’ First Amendment right to consult an attorney of their choosing and contravene both the Sherman Antitrust Act and the Arizona Uniform State Antitrust Act. These claims pertain to the rules’ validity as applied to all attorneys within Arizona (and, indeed, all Arizona residents) and thus do not present an individualized challenge to Mothershed‘s bar disciplinary proceedings. Rather—like the Feldman plaintiffs’ general constitutional attack on the D.C. bar‘s accreditation requirement—these claims constitute a general challenge to the rules governing admission to the Arizona bar. See Hoover v. Ronwin, 466 U.S. 558, 564-65 (1984) (entertaining a Sherman Act challenge to the Arizona bar exam‘s grading methodology brought by an attorney who had earlier contested his own exam results in separate Arizona state court proceedings).
Because “a general attack on a state‘s admissions rules may be heard by lower federal courts,” Craig, 141 F.3d at 1354, the district court erred by concluding that it lacked subject matter jurisdiction over Mothershed‘s First Amendment and antitrust claims against the Arizona defendants.
III
Although the district court did indeed possess subject matter jurisdiction over Mothershed‘s general challenges to the Arizona Supreme Court rules, we “may affirm the district court‘s dismissal on any ground supported by the record.” Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.2004). We first consider Mothershed‘s antitrust claims and then turn to his First Amendment challenge.
A
In Parker v. Brown, 317 U.S. 341, 352 (1943), the Supreme Court held that the Sherman Act does not apply to certain categories of state action. Later decisions have held that one of these categories is the regulation of attorneys by a state supreme court. In Bates v. State Bar of Arizona, 433 U.S. 350, 359, 360 (1977), for example, the plaintiffs alleged that an Arizona bar disciplinary rule prohibiting advertising by attorneys violated the Sherman Act. The Court determined that the Arizona Supreme Court—not the state bar—was the “real party in interest.” Id. at 361. That court had “adopted the rules,” id., and was “the ultimate body wielding the State‘s power over the practice of law,” id. at 360. Because the advertising restrictions were “compelled by direction of the State acting as a sovereign,” id. (internal quotation marks omitted), they were not amenable to a Sherman Act challenge.
Likewise, in Hoover v. Ronwin, 466 U.S. at 565, a plaintiff who had failed the Arizona bar exam filed suit against the members of the Committee on Examinations and Admissions alleging that the manner in which they graded the exam violated the Sherman Act. Although the individual members of the Committee were
Here, Mothershed alleges that Arizona Supreme Court Rules 33(d) and 34 violate the Sherman Act. These claims are squarely foreclosed by Bates and Hoover. Although Mothershed‘s claim is nominally against certain state bar officials and the Supreme Court Justices in their individual capacities, it is the Supreme Court of Arizona that is the “real party in interest” because the state bar rules that Mothershed is challenging are promulgated by the court in its supervisory role over the practice of law in Arizona. See In re Shannon, 179 Ariz. 52, 876 P.2d 548, 571 (1994) (“the determination of who shall practice law in Arizona and under what condition is a function placed by the state constitution in this court” (internal quotation marks omitted)). Rules 33(d) and 34 are therefore “compelled by direction of the State acting as a sovereign,” Bates, 433 U.S. at 360 (internal quotation marks omitted), and are exempt from Sherman Act challenges.
B
Mothershed also asserts a state antitrust claim under Arizona law. The Arizona Uniform State Antitrust Act “is interpreted in conformity with the federal [antitrust laws].” Arizona v. Maricopa County Med. Soc‘y, 643 F.2d 553, 554 n. 1 (9th Cir.1980), rev‘d on other grounds, 457 U.S. 332 (1982); see also Wedgewood Inv. Corp. v. Int‘l Harvester Co., 126 Ariz. 157, 613 P.2d 620, 623 (1979) (“The Arizona legislature clearly intended to strive for uniformity between federal and state antitrust laws.“). Indeed,
No court has previously had occasion to consider whether there exists a state-action exception to the Arizona antitrust laws. Nevertheless, in light of the Arizona legislature‘s avowed desire to achieve uniformity between the Uniform State Antitrust Act and the federal antitrust laws, the Arizona Supreme Court would most likely follow Bates and Hoover and hold that its rules governing attorney conduct are not amenable to state law antitrust challenges. See Assurance Co. of Am. v. Wall & Assocs. LLC of Olympia, 379 F.3d 557, 560 (9th Cir.2004) (“[W]hen interpret
C
Mothershed contends that Arizona Supreme Court Rules 33(d) and 34 violate the First Amendment right of Arizonans to consult with a lawyer of their choosing. Because Mothershed does not allege that he has himself suffered a First Amendment injury, we must first determine whether he has standing to pursue this claim on behalf of other Arizonans.
1
A “plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). This limitation is relaxed in the First Amendment context, however, because “when there is a danger of chilling free speech, ... society‘s interest in having the statute challenged” may outweigh the prudential considerations that normally counsel against third-party standing. Sec‘y of State v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984). A plaintiff‘s ability to invoke so-called “overbreadth standing” “has nothing to do with whether or not [his] own First Amendment rights are at stake” but instead depends upon whether the plaintiff “satisfies the requirement of ‘injury-in-fact,’ and whether [he] can be expected satisfactorily to frame the issues in the case.” Id. at 958; see also Gospel Missions of Am. v. City of Los Angeles, 328 F.3d 548, 554 (9th Cir.2003) (“the requirements of ‘overbreadth standing’ [are] injury-in-fact and the ability to frame the issues in the case satisfactorily“).
In Secretary of State v. Joseph H. Munson Co., 467 U.S. at 950, for example, a for-profit company that charged charities a fee for raising funds on their behalf brought a First Amendment challenge to a Maryland statute that prevented charities from paying more than 25% of their funds as expenses. Although the plaintiff was not itself a charity and did not allege that its own First Amendment rights were infringed, id. at 955, the Court concluded that the company had overbreadth standing to pursue the claim. The Court reasoned that, as a result of the statute, charities were reluctant to contract with the plaintiff because it charged fees in excess of 25% and that the plaintiff‘s impetus to challenge the statute was therefore consonant with the charities’ First Amendment interests. Id. at 958 (“The activity sought to be protected is at the heart of the business relationship between Munson and its clients, and Munson‘s interests in challenging the statute are completely consistent with the First Amendment interests of the charities it represents.“); see also Clark v. City of Lakewood, 259 F.3d 996, 1010-11 (9th Cir.2001) (holding that the owner of an adult entertainment establishment had overbreadth standing to pursue a First Amendment challenge against provisions of an ordinance that required the employees of such establishments to obtain a license because the licensing scheme—although not directly applicable to the owner—threatened his business‘s viability).
Here, Mothershed alleges that the prohibitions embodied in Rules 33(d) and 34 have a chilling effect upon Arizonans’
2
Although the First Amendment‘s applicability in the area of lawyer-client relations is not well-defined, we recognize that—at least as a general matter—the “right to hire and consult an attorney is protected by the First Amendment‘s guarantee of freedom of speech, association and petition.” Denius v. Dunlap, 209 F.3d 944, 953 (7th Cir.2000); see also United Mine Workers of Am. v. Ill. State Bar Ass‘n, 389 U.S. 217, 221-22 (1967) (holding that a union had a First Amendment right to employ a salaried attorney to represent members pursuing workers’ compensation claims); DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir.1990) (“The right to retain and consult an attorney ... implicates clearly established First Amendment rights of association and free speech.“).
While the Supreme Court has acknowledged that the right to consult with an attorney falls within the First Amendment‘s purview, the Court has also repeatedly emphasized that “the States have broad power to regulate the practice of law.” Ill. State Bar Ass‘n, 389 U.S. at 222. The Court has explained that the “interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been ‘officers of the courts.‘” Goldfarb, 421 U.S. at 792.
In order to further its substantial interest in regulating the legal profession, the State of Arizona may institute reasonable time, place, and manner restrictions on Arizonans’ First Amendment right to consult with an attorney. Time, place, and manner regulations are reasonable provided that “the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.‘” Kuba v. 1-A Agric. Ass‘n, 387 F.3d 850, 858 (9th Cir.2004) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (internal quotation marks omitted)).
“The principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. ‘Speech restrictions are content-neutral when they can be justified without reference to the content of the regulated speech.‘” Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037, 1043 (9th Cir.2002) (internal quotation marks and citation omitted). Arizona Supreme Court Rules 33(d) and 34 are content-neutral because they impose a generally applicable
A time, place, and manner regulation is narrowly tailored as long as the substantial governmental interest it serves “would be achieved less effectively absent the regulation and the regulation achieves its ends without ... significantly restricting a substantial quantity of speech that does not create the same evils.” Galvin v. Hay, 374 F.3d 739, 753 (9th Cir.2004) (internal quotation marks omitted; alteration in original). As already noted, the State of Arizona has a significant interest in regulating the practice of law within its boundaries, see Bates, 433 U.S. at 361 (“the regulation of the activities of the bar is at the core of the State‘s power to protect the public“), and Supreme Court Rules 33(d) and 34 further that interest by ensuring that attorneys practicing in the State are qualified and possess a familiarity with Arizona law. The rules’ narrow tailoring is further evidenced by the fact that they do not impose a blanket prohibition on the appearance of out-of-state attorneys in Arizona courts. Rather, they provide that a qualified out-of-state attorney may be admitted pro hac vice by an Arizona court.
Lastly, Rules 33(d) and 34 leave open ample alternative channels through which Arizonans can obtain legal representation. Notwithstanding the restrictions on out-of-state attorneys, Arizonans have access to legal representation from the thousands of attorneys licensed by the Arizona bar.
Because Arizona Supreme Court Rules 33(d) and 34 are reasonable time, place, and manner regulations of Arizonans’ First Amendment right to retain and consult with a lawyer, Mothershed‘s First Amendment claim fails as a matter of law.
IV
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
DIARMUID F. O‘SCANNLAIN
UNITED STATES CIRCUIT JUDGE
Notes
Here, state court proceedings ended for Rooker-Feldman purposes when the Oklahoma Supreme Court denied Mothershed‘s request that it issue a writ of mandamus halting the Oklahoma bar desciplinary proceedings against him. That May 2002 state court ruling finally resolved that the disciplinary proceedings complied with Rule 6.7‘s timing requirements and that Mothershed‘s due process rights therefore were not violated, which represent the same issues that Mothershed subsequently sought to relitigate in federal district court.
The Chief Master or Vice-Chief Master of the Professional Responsibility Tribunal shall notify the respondent and the General Counsel of the appointment and membership of the Trial Panel and of the time and place for hearing, which shall not be less than thirty (30) nor more than sixty (60) days from the date of appointment of the Trial Panel. Extensions of this period may be granted by the Chief Master (or the Vice-Chief Master, in case of the unavailability of the Chief Master) for good cause shown.