Case Information
*3
M. SMITH, Circuit Judge:
Plaintiffs-Appellants (Plaintiffs) National Association for the Advancement of Multijurisdictional Practice (NAAMJP), Allison S. Girvin, and Mark Anderson filed suit against justices of the Arizona Supreme Court challenging Arizona Supreme Court Rule 34(f) (the AOM Rule), which describes how experienced attorneys can be admitted on motion to the State Bar of Arizona (Arizona Bar). The AOM Rule permits admission on motion to the Arizona Bar for attorneys who are admitted to practice law in states that permit Arizona attorneys to be admitted to the bars of those states on a basis equivalent to Arizona’s AOM Rule, but requires attorneys admitted to practice law in states that do not have such reciprocal admission rules to take the uniform bar exam (UBE) in order to gain admission to the Arizona Bar. Anderson, Girvin, and NAAMJP allege that the AOM Rule is unconstitutional under the First Amendment, the Dormant Commerce Clause, and the Privileges and Immunities Clauses of Article IV and the Fourteenth Amendment.
We hold that the AOM Rule is constitutional, and that the district court did not err in dismissing Plaintiffs’ claims on summary judgment, or in denying leave to amend Plaintiffs’ complaint to permit the joinder of John Doe.
FACTUAL AND PROCEDURAL BACKGROUND *4 NAAMJP is a non-profit corporation whose stated mission is to improve the legal profession by promoting the adoption of the American Bar Association’s (ABA) recommendation for reciprocal bar admission. The ABA encourages states to permit experienced attorneys to be admitted to their bars on motion, provided those attorneys are admitted to the bar in another state.
Allison Girvin is a member of the State Bar of California, who received a score of 272 on the UBE, one point below the passing score required by Arizona. Girvin appealed her UBE score, but she has not received a breakdown of the score from the Arizona Supreme Court. She has not applied for admission to the Arizona Bar under the AOM Rule. Girvin currently lives in Arizona and states that she wishes to practice law in Arizona.
Mark Anderson is a member of the State Bar of Montana, who asserts that Arizona’s AOM Rule has restricted him from moving to Arizona to practice law. Anderson has not taken the UBE. Like Girvin, Anderson has not applied for admission to the Arizona Bar pursuant to the AOM Rule.
The Rules of the Arizona Supreme Court provide three methods of admission to the Arizona Bar: (1) admission by taking and passing the UBE, (2) admission pursuant to the AOM Rule, and (3) admission by transfer of a UBE score from another jurisdiction. Ariz. R. Sup. Ct. 34(a)–(h). Anderson, Girvin, and NAAMJP challenge the second of these methods, which provides for admission on motion for attorneys who “have been admitted by bar examination to practice law in another jurisdiction allowing for admission of Arizona lawyers on a basis equivalent to this rule.” Ariz. R. Sup. Ct. 34(f)(1)(A). This effectively means that Arizona permits admission on motion to its bar for attorneys admitted in states having reciprocal admission rules for Arizona-barred attorneys, but requires that attorneys admitted to practice law *5 6 NAAMJP V . B ERCH in states that do not have reciprocal admission rules take the UBE.
On July 1, 2013, the Arizona Supreme Court expanded Rule 34(f)(1) to permit admission to the Arizona Bar on motion for some attorneys admitted in non-reciprocal jurisdictions. Specifically, after July 1, 2013, attorneys admitted to practice law by bar examination in a non- reciprocal jurisdiction, but who are subsequently admitted to practice law on motion in a jurisdiction that has reciprocity with Arizona, and have actively practiced for five of the last seven years in that jurisdiction, are eligible for admission in Arizona under the AOM Rule.
Anderson, Girvin, and NAAMJP brought suit in the
District of Arizona challenging the constitutionality of the
AOM Rule on First Amendment, Fourteenth Amendment,
Dormant Commerce Clause, and Privileges and Immunities
Clause grounds. NAAMJP’s counsel, Joseph Giannini, has
brought challenges to bar admission requirements in several
courts.
See Blye v. Kozinski
, 466 Fed. App’x. 650 (9th Cir.
2012);
Paciulan v. George
,
On August 6, 2013, Plaintiffs filed a motion to join a John Doe plaintiff. John Doe, an attorney admitted to the State Bar of Florida by examination, and to the Texas and Tennessee bars on motion, argues that the amendments to Arizona’s AOM Rule are unconstitutional. Although Texas and Tennessee share reciprocity with Arizona, John Doe is ineligible for admission on motion in Arizona because he has not actively practiced in either Texas or Tennessee for five of *6 the last seven years. He alleges he is afraid to disclose his identity for fear of retaliation.
The district court granted summary judgment to Defendants-Appellees (Defendants). Although the district court did not conclusively determine whether Anderson, Girvin, and NAAMJP had standing, it granted Defendants summary judgment on the merits on all of Plaintiffs’ claims. The district court also declined to allow John Doe to join this action because his challenges did not arise out of the same transactions or occurrences as those of the remaining Plaintiffs. Anderson, Girvin, and NAAMJP timely filed this appeal.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291 and
28 U.S.C. § 1331. We review a grant of summary judgment
de novo
. We determine, viewing the evidence in the light
most favorable to the nonmoving party, whether the district
court correctly applied the relevant substantive law and
whether there are any genuine issues of material fact.
Smith
v. Clark Cnty. Sch. Dist.
,
DISCUSSION
I. Standing
We first address whether Anderson, Girvin, and NAAMJP have standing to challenge the AOM Rule. Plaintiffs assert that they are injured by Arizona’s AOM Rule. Defendants respond that this case does not present a justiciable case or controversy under Article III of the Constitution because Anderson, Girvin, and NAAMJP lack the requisite injury, and because their claims do not qualify for the relaxed standing analysis utilized in First Amendment cases.
A. Article III Standing
To establish Article III standing, Girvin, Anderson or
NAAMJP must show that they suffered a concrete injury, that
there is a causal connection between the injury and
Defendants’ conduct, and that the injury will likely be
redressed by a favorable decision from this court.
See Susan
B. Anthony List v. Driehaus
,
Girvin alleges an injury that meets Article III
requirements. She took and failed the UBE. She is currently
working in Scottsdale, Arizona, but is unable to practice as an
Arizona attorney. Although she has not applied to be admitted
to the Arizona Bar pursuant to the AOM Rule, such an
application would be futile because she is a member of the
State Bar of California, which does not have reciprocity with
Arizona.
Taniguchi v. Schultz
,
Since Girvin establishes Article III standing, an analysis
of Anderson and NAAMJP’s standing is unnecessary.
See
California ex rel. Imperial Cnty. Air Pollution Control Dist.
v. U.S. Dep't of the Interior
, 767 F.3d 781, 789 (9th Cir.
2014) (“We need not address the standing of each plaintiff if
we conclude that any plaintiff has standing.”) (citing
Nat'l
Ass'n of Optometrists & Opticians v. Brown
,
B. First Amendment Standing Because an analysis of Girvin and Anderson’s First Amendment standing requires us to delve into the merits of their claims, it is sufficient to note at this point of our opinion that the AOM Rule does not chill speech, nor does it infringe on attorneys’ rights to be present in court and express themselves. Even if attorneys are ineligible to be admitted in Arizona on motion, they may still gain admission by passing the UBE. The presence of alternative means to gain admission limits the amount of speech that might otherwise be restricted by the AOM Rule, and suggests that Anderson does not have First Amendment standing.
NAAMJP does not have First Amendment standing.
NAAMJP argues that it possesses First Amendment standing
based on
Citizens United v. Federal Election Commission
,
10 NAAMJP V . B ERCH II. Fourteenth Amendment Equal Protection Clause
Since Girvin has established Article III standing, and we must consider the merits of Girvin and Anderson’s claims in order to fully evaluate their First Amendment standing, we now proceed with a consideration of the merits of Plaintiffs’ claims. Plaintiffs argue, first, that the AOM Rule discriminates against attorneys admitted to the bar in states that do not have reciprocity with Arizona, and therefore, that the Rule violates the Equal Protection Clause of the Fourteenth Amendment.
Since the AOM Rule does not disadvantage a suspect
class or infringe on a fundamental right, the Rule is subject to
rational basis review.
See Lupert v. Cal. State Bar
, 761 F.2d
1325, 1328 (9th Cir. 1985) (“State and federal courts
generally have subjected state bar admission restrictions to
mere rational basis analysis.”). “To survive rational basis
review, [the AOM Rule] must be ‘rationally related to a
legitimate state interest.’”
Arizona Dream Act Coal. v.
Brewer
,
The AOM Rule serves two legitimate state purposes. First, the AOM Rule helps Arizona regulate its bar: “The Supreme Court is extremely deferential to legislative classifications in actions challenging regulation of licensed professions.” Lupert , 761 F.2d at 1328. Moreover, by honoring reciprocal bar requirements, the state of Arizona helps to ensure that its attorneys are treated equally in other states. States that share reciprocity with Arizona will likely continue to admit Arizona-barred attorneys on motion because members of the bar in those states are eligible for reciprocal privileges in Arizona.
*9 The AOM Rule serves these purposes without being unduly restrictive. Attorneys seeking admission in Arizona have alternative means to obtain Arizona Bar membership, namely by passing the UBE. Thus, we conclude that the AOM Rule does not violate Plaintiffs’ rights under the Fourteenth Amendment’s Equal Protection Clause. III. Privileges and Immunities Clause, Article IV,
Section 2
Plaintiffs next argue that the AOM Rule deprives them of
a privilege protected by Article IV, Section 2 of the U.S.
Constitution; namely, the right to practice law. In
Supreme
Court of New Hampshire v. Piper
, the Supreme Court held
that the practice of law is a fundamental right under the
Privileges and Immunities Clause because it is “important to
the national economy” and because it “has a noncommercial
role and duty.”
We conclude that Arizona’s AOM Rule does not
contravene Article IV, Section 2's Privileges and Immunities
Clause because it does not favor Arizona’s in-state citizens
over out-of-state citizens. The purpose of the Privilege and
Immunities Clause is to prevent “a state from discriminating
against citizens of other states in favor of its own.”
Hague v.
Comm. for Indus. Org.
,
The cases cited by Plaintiffs stand only for the proposition that bar admission rules that impose residency requirements on bar applicants violate the Privileges and Immunities Clause. See Piper , 470 U.S. at 275 (resident of Vermont challenging New Hampshire’s limit of bar admission to New Hampshire residents); Sup Ct. of Va. v. Friedman , 487 U.S. 59, 61 (1988) (resident of Illinois challenging Virginia’s limit of bar admission to Virginia residents). The AOM Rule, on the other hand, relies solely on state of bar admission, and applies equally to residents and non-residents of Arizona.
Even if Arizona’s AOM Rule did infringe on a right *10 protected by the Privileges and Immunities Clause, the Rule is closely related to advancing a substantial state interest. See Friedman , 467 U.S. at 65. As noted supra , the state of Arizona has a considerable interest in regulating its state bar and in ensuring that attorneys licensed in Arizona will be treated equally in states having reciprocity with Arizona. Accordingly, the AOM Rule does not violate the Privileges and Immunities Clause, Article IV, Section 2.
IV. Privileges and Immunities Clause, Fourteenth
Amendment
Plaintiffs also argue that the AOM Rule deprives them of
a fundamental right protected by the Privileges and
Immunities Clause of the Fourteenth Amendment. The
Supreme Court, however, has made clear that the Privileges
and Immunities Clause of the Fourteenth Amendment only
protects those rights accruing from citizenship of the United
States,
Slaughter-House Cases
,
Plaintiffs seem to argue that the AOM Rule burdens their
right to travel to Arizona from non-reciprocal states. The
Fourteenth Amendment Privileges and Immunities Clause
does recognize that travelers becoming permanent residents
of a new state have “the right to be treated like other citizens
of that State.”
Saenz v. Roe
,
V. First Amendment Right to Free Speech
Plaintiffs present several arguments concerning the First Amendment right to free speech, including a claim that the AOM Rule chills speech by excluding lawyers from practicing in the state, that the AOM Rule is a prior restraint on speech, and that the AOM Rule constitutes content and viewpoint discrimination.
Plaintiffs’ arguments on First Amendment free speech
grounds mistake the appropriate First Amendment framework
for analyzing the AOM Rule. We consider bar admission
restrictions to be time, place, and manner restrictions on
speech.
See Mothershed v. Justices of Sup. Ct.
,
We hold that the AOM Rule is a reasonable time, place, and manner restriction. Arizona is regulating the practice of law, and such regulation is a substantial government interest. See id . at 611. Arizona also grants attorneys the option to pass the UBE to gain admission to its bar, which reduces the quantity of speech that the AOM Rule might otherwise restrict. See id . at 612.
Girvin and Anderson thus lack standing under the relaxed
standing analysis in First Amendment cases, which permits
plaintiffs to challenge a statute whose very existence chills
expression, even if the plaintiffs have not suffered a concrete
injury.
See Broadrick v. Oklahoma
,
to Petition Plaintiffs next argue that Arizona’s AOM Rule abridges their freedom to associate with non-reciprocal states, and
NAAMJP V . B ERCH
15
forces attorneys to associate with reciprocal states.
[1]
This is an
attenuated reading of the First Amendment right to associate,
which only encompasses the “‘right to associate with others
in pursuit of a wide variety of political, social, economic,
educational, religious, and cultural ends.’”
Boy Scouts of Am.
v. Dale
,
A parallel response addresses Plaintiffs’ claims on First Amendment Petition Clause grounds. “[T]he Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes.” Borough of Duryea, Pa. v. Guarnieri , 131 S. Ct. 2488, 2494 (2011). The AOM Rule ultimately does not deny Appellants meaningful access to the courts. As long as attorneys are admitted under the AOM Rule, or pass the UBE, [1] We summarily dismissed the same line of reasoning in a memorandum disposition in 2010. In Gordon v. State Bar of California , a California bar applicant challenged on freedom of association grounds California’s requirement that he attend an ABA-accredited law school. 369 F. App’x 833, 835 (9th Cir. 2010). We concluded that “[t]he district court properly dismissed Gordon’s First Amendment claim because attending an ABA- accredited school is not the only path for qualifying for the California state bar examination and Gordon is not deprived of his right not to associate with an ABA-accredited school.” Id .
they may still practice in Arizona courts.
See Paciulan v.
George
,
VII. Dormant Commerce Clause
The Commerce Clause of the U.S. Constitution, Article I,
Section 8, prohibits states from discriminating against
interstate commerce, and bars state regulations that, although
facially nondiscriminatory, unduly burden
interstate
commerce.
Nat’l Ass’n of Optometrists & Opticians v.
Harris
,
“Although the Constitution does not in terms limit the
power of States to regulate commerce, [the Supreme Court
has] long interpreted the Commerce Clause as an implicit
restraint on state authority, even in the absence of a
conflicting federal statute.”
United Haulers Ass’n, Inc. v.
Oneida-Herkimer Solid Waste Mgmt. Auth.
,
Like the Privileges and Immunities Clause, Article IV,
Section 2, the Dormant Commerce clause is intended to limit
economic protectionism by states, i.e., “regulatory measures
designed to benefit in-state economic interests by burdening
out-of-state competitors.”
New Energy Co. of Ind. v.
Limbach
,
Where a state statute or regulation burdens interstate
commerce, we weigh the burden against the police power of
the state.
See Conservation Force, Inc. v. Manning
, 301 F.3d
985, 993 n.7 (9th Cir. 2002). When the statute or regulation
“even-handedly . . . effectuate[s] a legitimate local public
interest, and its effects on interstate commerce are only
incidental, it will be upheld unless the burden imposed on
such commerce is clearly excessive in relation to the putative
local benefits.”
Pike v. Bruce Church, Inc.
,
As noted in our analysis of Plaintiffs’ Privileges and
Immunities Clause arguments, the AOM Rule does not
discriminate against out-of-state interests and favor in-state
interests. Arizona requires the same of its citizens as it does
citizens of other states. The AOM Rule also arguably
promotes some commerce because it encourages other state
jurisdictions to reciprocally recognize the professional license
held by Arizona attorneys who can then relocate to other
states, and practice there. Even if the AOM Rule were
discriminatory, however, a state can legitimately regulate the
practice of law for public protection purposes.
Cf
.
Mothershed v. Justices of Sup. Ct.
,
Any negative impact on interstate commerce stemming
from the AOM Rule is further mitigated by the existence of
alternative means of admission to the Arizona Bar. If an
attorney is not eligible for admission to the bar under the
AOM Rule, she can still take the UBE and be admitted to
practice in Arizona. In
Scariano v. Justices of Supreme Court
of Indiana
, the Seventh Circuit considered a Dormant
Commerce Clause challenge to Indiana’s rule that an out-of-
state practitioner can only be admitted to practice before its
bar on motion if they practice “predominantly” in Indiana for
a period of five years.
The Supreme Court cases relied on by amicus curiae
Public Citizen are inapposite. These cases find violations of
the Dormant Commerce Clause where a state completely
barred commerce based on a lack of reciprocity, and did not
provide alternative means for out-of-state businesses to sell
commodities in the state.
See Sporhase v. Nebraska
, 458 U.S.
941, 957 (1982) (“[T]he reciprocity provision operates as an
explicit barrier to commerce between the two States.”);
Great
Atl. & Pac. Tea Co. v. Cottrell
,
VIII. Intervention of John Doe Plaintiff
During the pending litigation in district court, Plaintiffs
filed a motion to amend their complaint under Federal Rule
of Civil Procedure 15(a) to join a John Doe plaintiff. The
district court denied the motion. We review the denial of a
motion for leave to amend under the deferential abuse of
discretion standard and will not revisit the district court’s
decision denying Plaintiff’s motion.
Bowles v. Reade
,
We conclude that the district court did not err in finding that John Doe, an attorney admitted to the bar in Florida and admitted to practice on motion in Texas and Tennessee, was challenging a separate provision of law that did not arise out of the same transaction or occurrences claimed by Plaintiffs in their complaint. Fed. R. Civ. P. 20(a)(1)(A) (“Persons may join in one action as plaintiffs if: . . . they assert [a] right to relief . . . with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences.”).
IX. Conclusion
The district court correctly granted summary judgment to the justices of the Arizona Supreme Court. Although Plaintiffs can establish Article III standing based on injuries suffered by Girvin, Plaintiffs fail to establish that the AOM Rule is unconstitutional on First Amendment, Fourteenth Amendment, or Privileges and Immunities Clause Grounds. We affirm the decision of the district court. All outstanding motions filed by Plaintiffs-Appellants and Defendants- Appellees are denied. Each party shall bear its own costs on appeal.
AFFIRMED.