Peter Strojnik, Plaintiff, v. State Bar of Arizona, et al., Defendants.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
March 17, 2020
Honorable
WO
ORDER
Pending before the Court is a Motion to Dismiss the Second Amended Complaint (“Motion“) (Doc. 43) filed by Defendants State Bar of Arizona (the “State Bar“), Shauna Miller (“Ms. Miller“) and John Doe Miller, and Maret Vessella (“Ms. Vessella“) and John Doe Vessella (collectively “Defendants“). Plaintiff Peter Strojnik (“Plaintiff“) filed a Response (Doc. 45),1 and Defendants filed a Reply (Doc. 48).
I. BACKGROUND
Plaintiff filed his original Complaint on April 29, 2019. (Doc. 1). Plaintiff filed a First Amended Complaint on June 4, 2019 (Doc. 14), and a Second Amended Complaint (“SAC“) on July 22, 2019. (Doc. 22). Plaintiff‘s SAC contains claims for: (1) under
On March 6, 2018, the State Bar moved for interim suspension of Plaintiff‘s license in a disciplinary proceeding before the Presiding Disciplinary Judge (“PDJ“) William J. O‘Neil.2 (Doc. 42-2 at 2).3 On
Plaintiff proffered his resignation from the State Bar on October 24, 2018. (Doc. 1 at 3). However, because disciplinary proceedings had already been initiated against him, pursuant to
Defendants move to dismiss Plaintiff‘s SAC, pursuant to
II. LEGAL STANDARD
A defendant may move to dismiss an action for lack of subject matter jurisdiction pursuant to
“[A]lthough sovereign immunity is only quasi-jurisdictional in nature,
III. DISCUSSION
Plaintiff alleges various violations of his rights related to the State Bar‘s disciplinary actions against him. Defendants argue the Court lacks jurisdiction over all claims against the Arizona State Bar because it is entitled to absolute immunity under the Eleventh Amendment. Plaintiff responds that: (1) the State Bar acted in its private corporate capacity, not as an arm of the Supreme Court, (2) the State of Arizona has waived sovereign immunity, and (3) Congress abrogated Arizona‘s sovereign immunity under the ADA. Defendants also argue the Court lacks jurisdiction over claims against Ms. Miller and Ms. Vessella because they are both entitled to prosecutorial immunity. Plaintiff contends that Ms. Miller and Ms. Vessella are not entitled to immunity because their conduct was investigative, not prosecutorial. The Court will address each argument in turn.
a. The State Bar‘s Entitlement to Eleventh Amendment Immunity
The SBA contends that it enjoys immunity from suit under the Eleventh Amendment and therefore it is immune from this suit and this Court‘s jurisdiction. (Doc. 43 at 4).
The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Thus, the Court lacks subject matter jurisdiction to adjudicate claims brought against the State Bar unless an exception applies. Specifically, the Court may retain subject matter jurisdiction where: (1) Congress has abrogated that immunity pursuant to its lawmaking powers conferred by the United States Constitution, Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 80 (2000); (2) a state has waived its Eleventh Amendment immunity by consenting to suit, College Sav. Bank Florida v. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999); or (3) the plaintiff sues a state official in his or her official capacity for prospective injunctive relief under the Ex parte Young doctrine, Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73 (1996).
1. The State Bar is an Arm of the State
First, Plaintiff‘s argument that the State Bar is not entitled to Eleventh
2. The Arizona Supreme Court did not Abolish Arizona‘s Sovereign Immunity in Federal Court
Next, Plaintiff argues that “[t]he Arizona Supreme Court abolished the state‘s sovereign immunity in the 1963 case of Stone v. Arizona Highway Commission, 381 P.2d 107 (Ariz. 1963).” (Doc. 45 at 6). Stone, the case Plaintiff relies on, however, does not address suits against Arizona in federal court, but rather addresses suits against Arizona in state court. King v. State of Ariz., 2010 WL 3219139, at *2 (D. Ariz. Aug. 13, 2010); see also Ronwin v. Shapiro, 657 F.2d 1071, 1073 (9th Cir. 1981) (“Although in Stone [], Arizona abolished sovereign immunity, consent to be sued in state court does not necessarily imply consent to be sued in federal court.“). It is well settled that the Eleventh Amendment bars federal jurisdiction over suits against non-consenting states. See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 62-65 (1996) (reaffirming strength of Eleventh Amendment and fundamental importance of each state‘s sovereign immunity). Moreover, a state‘s waiver of Eleventh Amendment immunity must be express and unequivocal. See Harrison v. Hickel, 6 F.3d 1347, 1354 (9th Cir. 1993) (“We give effect to a state‘s waiver of Eleventh Amendment immunity ‘only where stated by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.‘“) (alteration in original) (quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 239-40 (1985)). Consistent with other courts in this district and Ninth Circuit precedent, the Court finds that Arizona has not abrogated its broad sovereign immunity for this case. See Ronwin, 657 F.2d at 1073; King, 2010 WL 3219139, at *2.
3. The ADA Does Not Abrogate the State Bar‘s Sovereign Immunity
Plaintiff next argues that Congress abrogated state sovereign immunity when it enacted the Americans with Disabilities Act (“ADA“) and therefore his ADA retaliation claim is not barred by sovereign immunity. (Doc. 45 at 6-8). In Count One of his SAC, Plaintiff alleges that the State Bar used the disciplinary process to retaliate against him for filing lawsuits to address ADA violations that his individual clients experienced. As previously discussed in this Order, as an arm of the Arizona Supreme Court, the State Bar enjoys
“Congress may abrogate the [s]tates’ Eleventh Amendment immunity when it both unequivocally intends to do so and ‘acts pursuant to a valid grant of constitutional authority.‘” Bd. of Trs. v. Garrett, 531 U.S. 356, 363 (2001) (quoting Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000)). It is undisputed that Congress unequivocally expressed its intent to abrogate Eleventh Amendment immunity in enacting the ADA. See
The Supreme Court and Ninth Circuit have addressed this question for different portions of the ADA4 and have reached different conclusions for different provisions. In Garrett, 531 U.S. at 374, the Supreme Court held that Congress did not validly abrogate Eleventh Amendment immunity for claims under Title I of the ADA. Additionally, in Demshki v. Monteith, 255 F.3d 986, 988-89 (9th Cir. 2001), the Ninth Circuit determined that, under the reasoning of Garrett, Congress did not validly abrogate Eleventh Amendment immunity for retaliation claims brought under Title V that were predicated on alleged violations of Title I. However, in Tennessee v. Lane, 41 U.S. 509 (2004), the Supreme Court held that Congress had abrogated the states’ Eleventh Amendment immunity with respect to Title II of the ADA, at least when a fundamental right, such as access to the courts were involved. Id. at 533-34 (“Title II, as it applies to the class of cases implicating the fundamental right of access to the courts, constitutes a valid exercise of Congress’ § 5 authority to enforce the guarantees of the Fourteenth Amendment“); see also Vartanian v. State Bar of California, 794 Fed. Appx. 597, 600 (9th Cir. 2019) (holding that because the plaintiff‘s opposition did not rise near to the level of implicating any “fundamental right of access to the courts[,]” Congress had not validly abrogated sovereign immunity for the plaintiff‘s ADA Title II claim). Thus, whether the State Bar has sovereign immunity from Plaintiff‘s ADA retaliation claim turns on the alleged predicate violation of the ADA that Plaintiff opposed that resulted the State Bar‘s purported retaliation.
Plaintiff relies on
Plaintiff‘s theory of his Title V retaliation claim is that the State Bar retaliated against him because he opposed conduct that violated Title II of the ADA. That is, he filed more than a thousand ADA civil rights cases to redress his clients’ ADA violations. Accordingly, to determine whether Congress validly abrogated Eleventh Amendment immunity for Plaintiff‘s retaliation claim, the Court looks to whether Congress validly abrogated Eleventh Amendment immunity for the Title II violation. Vartanian, 794 Fed. Appx. at 600.
The Supreme Court has determined that Congress has validly abrogated state sovereign immunity with respect to Title II of the ADA “as it applies to the class of cases implicating the fundamental right of access to the courts.” Lane, 541 U.S. at 533-34. In Lane, the Supreme Court held that Congress had abrogated the states’ Eleventh Amendment immunity with respect to Title II of the ADA, at least when a fundamental right was involved. The Title II violation in Lane involved “the fundamental right of access to the courts:” because the respondents were wheelchair-bound paraplegics who claimed they were denied access to the state court system because, among other things, the lack of an elevator in the courthouse prevented them from appearing at hearings. Id. at 514-15. In assessing whether Title II was a valid exercise of Congress‘s § 5 enforcement power, the Court noted that “the right of access to the courts at issue in this case” fell within a class of “basic constitutional guarantees, infringements of which are subject to more searching judicial review.” Id. at 522-23. The Court then concluded that, given Congress‘s findings that “many individuals, in many States across the country, were being excluded from courthouses and court proceedings by reason of their disabilities,” Article II was a “congruent and proportional” exercise of Congress‘s § 5 enforcement power. Id. Accordingly, the Court in Lane held that Congress had abrogated the state‘s Eleventh Amendment immunity with respect to Title II of the ADA, at least when a fundamental right, such as access to the courts, was involved.
However, “the right of access to the courts discussed in Lane is not a right to practice law and represent a client before the courts. Rather, in Lane, the Supreme Court was concerned with a criminal defendant‘s right to be present during trial and to confront witnesses against him, with a civil litigant‘s right to a meaningful opportunity to be heard, and with the public‘s right to attend—i.e., physically access—court proceedings.” Oliver v. Virginia Bd. of Bar Examiners, 312 F. Supp. 3d 515, 529 (E.D. Va. 2018), appeal dismissed, 2018 WL 6192209 (4th Cir. July 23, 2018). Stated differently, there is a distinction between ones’ physical access to the court addressed in Lane, and the ones’ privilege of being licensed to practice before a particular court. The latter being Plaintiff‘s complaint. Thus, “Title II, as it applies to the class of cases implicating professional licensing by the states, does not constitute a valid exercise of Congress‘s
Notably, Plaintiff has failed to cite to any authority suggesting that Congress has abrogated a state‘s Eleventh Amendment immunity for this type of Section 12203 claim. In fact, Plaintiff cites no case law at all to support this argument. See Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (holding that once a defendant has asserted sovereign immunity pursuant to
In sum, the State Bar of Arizona is immune from suit under the Eleventh Amendment. The Court further finds that any amendment to the SAC would be futile because the Court finds that there are no possible set of factual allegations that could be pled in an amended complaint that would cure the aforementioned deficiencies. Accordingly, the Court will dismiss the State Bar with prejudice.
b. Ms. Miller and Ms. Vessella‘s Entitlement to Absolute Immunity
Plaintiff has sued Ms. Miller, senior counsel to the State Bar, and Ms. Vessella, chief counsel to the State Bar, in their personal capacities. Defendants contend that both Ms. Miller and Ms. Vessella have judicial or quasi-judicial immunity for all of Plaintiff‘s claims. Plaintiff, however, argues that Ms. Miller and Ms. Vessella‘s conduct was outside of the scope of their authority and was “investigatory and not prosecutorial in nature“; therefore, he contends, they are not entitled to absolute immunity. (Doc. 45 at 9).
The crux of Plaintiff‘s allegations are that the State Bar, acting through Ms. Miller and Ms. Vessella, conspired with non-parties to “to accomplish a disbarment of Plaintiff . . . For its part, [the State Bar, acting through Ms. Miller and Ms. Vessella,] agreed to investigate the bar charges even where, on their face, a bar charge would disclose no violation of ethical rules.” (Doc. 45 at 8). In other words, Ms. Miller and Ms. Vessella‘s liability stem from their actions investigating Plaintiff for potential ethical violations and the resulting disciplinary action against him.
The difficulty for Plaintiff is the law. State bar associations and their employees policing the legal profession are entitled to absolute quasi-judicial immunity for their actions. Simons v. Bellinger, 643 F.2d 774, 779 (D.C. Cir. 1980); Clark v. State of Wash., 366 F.2d 678, 681 (9th Cir. 1966); see also Greene v. Zank, 158 Cal. App. 3d 497, 506 (Cal. Ct. App. 1984) (collecting cases holding that bar associations and their officials charged with the duties of investigating, drawing up, and presenting cases involving attorney discipline enjoy absolute immunity from damage claims for such functions).
The Ninth Circuit has repeatedly held that, as an arm of the state‘s supreme court in connection with disciplinary proceedings, a state‘s bar association “is an ‘integral part of the judicial process’ and is therefore entitled to the same immunity which is afforded to prosecuting attorneys in that state.” Clark, 366 F.2d at 681; see also Hirsh v. Justices of Sup. Ct. of State of Cal., 67 F.3d 708, 715 (9th Cir. 1995) (per curiam) (“The Bar Court judges and prosecutors have quasi-judicial immunity from monetary damages.“). In Simons, the District of Columbia Circuit Court held that members of the District of Columbia Committee
In an attempt to overcome this bar, Plaintiff argues that there is no immunity for investigative acts taken by Ms. Miller and Ms. Vessella. Although that may be a correct statement as to some prosecutors who may only have qualified immunity during the investigative phase, it is not true with respect to the State Bar‘s counsel. See Simons, 643 F.2d at 779 (holding that although other courts have drawn the analogy between a state bar employee and a prosecutor and relied upon that rough similarity to grant absolute immunity, the court does not accept the proposition that the state bar employee defendants are, for immunity purposes, precisely identical to prosecutors). The Simons court further held that because the state bar investigates misconduct with the purpose of determining whether or not the misconduct warrants a formal prosecution; “the decision of whether or not to prosecute . . . is comparable to judicial decisionmaking and which also requires the full protection of absolute immunity.” Id. Furthermore, the “inquiries” it makes are “necessarily antecedent to its determination regarding prosecution” and therefore are entitled to absolute immunity. Id.
Thus, the Court finds that Ms. Miller and Ms. Vessella, as counsel to State Bar, are entitled to quasi-judicial immunity for their actions in both the prosecutorial and investigative phases of Plaintiff‘s disciplinary proceeding. Accordingly, the Court finds they have absolute immunity for their alleged conduct, which defeats all of Plaintiff‘s claims against them. Moreover, the Court finds that any amendment to the SAC would be futile because the Court finds that there is no possible set of factual allegations that could be pled in an amended complaint that would cure the aforementioned deficiencies. Accordingly, the Court will dismiss Ms. Miller and Ms. Vessella with prejudice.
IV. CONCLUSION
The Court has dismissed all of Plaintiff‘s claims against the State Bar, Ms. Miller and Ms. Vessella with prejudice. Thus, the only remaining Defendants are John Doe Miller, Ms. Miller‘s spouse, and John Doe Vessella, Ms. Vessella‘s spouse. (Doc. 22 at 1-2). Specifically, Plaintiff provides that both John Doe Miller and John Doe Vessella only “[a]dded only in [their] capacity as spouse[s] of [Ms.] Miller” and Ms. Vessella, respectively. (Id.) As both Ms. Miller and Ms. Vessella are dismissed with prejudice, and the SAC does not identify any conduct attributable to either John Doe Miller or John Doe Vessella, the Court will dismiss Plaintiff‘s claims against them with prejudice as well.
Accordingly,
IT IS ORDERED that Defendants’ Motion to Dismiss (Doc. 43) is GRANTED with prejudice. The Clerk of Court is respectfully directed to enter judgment accordingly and terminate this action.
IT IS FURTHER ORDERED that Defendants’ Motion for Judicial Notice (Doc. 42) is GRANTED.
IT IS FINALLY ORDERED that Defendants’ Motion to Defer Scheduling Order
Dated this 17th day of March, 2020.
Honorable Diane J. Humetewa
United States District Judge