Marilyn Scheer v. Patrick Kelly

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARILYN S. SCHEER, an individual, No. 14-55243
Plaintiff-Appellant,
D.C. No.
v. 8:13-cv-01313-
JLS-JPR
PATRICK KELLY, in his official
capacity as President of the Board of
Trustees of the State Bar of OPINION
California; JOANN REMKE, in her
official capacity as the Presiding
Judge of the California State Bar
Court; KENNETH E. BACON, in his
official capacity as Presiding
Arbitrator of the State Bar of
California,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Argued and Submitted
February 11, 2016—Pasadena, California
Filed April 4, 2016
2 SCHEER V. KELLY
Before: Marsha S. Berzon and John B. Owens, Circuit
Judges and Algenon L. Marbley,* District Judge.
Opinion by Judge Berzon
SUMMARY**
Civil Rights
The panel affirmed the district court’s dismissal of an
action brought pursuant to 42 U.S.C. § 1983 by a California
lawyer who challenged California’s procedures for attorney
discipline.
Plaintiff asserted that California violated her
constitutional rights by not providing her meaningful judicial
review in a fee dispute between herself and a client. She also
asserted that the rules governing the California State Bar’s
disciplinary procedures are facially unconstitutional.
The panel first held that plaintiff’s as-applied claims were
barred by the Rooker-Feldman doctrine because the challenge
to the State Bar’s decision in her own case was a de facto
appeal of the Supreme Court of California’s denial of her
petition for review.
*
The Honorable Algenon L. Marbley, District Judge for the U.S.
District Court for the Southern District of Ohio, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SCHEER V. KELLY 3
The panel held that plaintiff’s facial claims were not time-
barred. The “operative decision” injuring plaintiff occurred
when the California Supreme Court denied her petition for
review on June 12, 2013, and she filed her claim in this action
on August 26, 2013, well within the two-year statute of
limitations. The panel held that the State Bar misread this
Court’s statute-of-limitations decision in Action Apartment
Ass’n, Inc. v. Santa Monica Rent Control Board, 509 F.3d
1020, 1026-27 (9th Cir. 2007), which only applies to facial
challenges involving property rights.
The panel held that plaintiff’s facial claims based on
California’s state constitution failed because they have
already been rejected by the Supreme Court of California. In
re Rose, 22 Cal. 4th 430, 436 (2000). Plaintiff’s Fourteenth
Amendment Due Process and Equal Protection claims also
failed. The panel held that plaintiff was provided notice and
opportunity for a hearing appropriate to the nature of her
case. The panel concluded that California’s decision to
regulate lawyers principally via a judicially supervised
administrative body attached to the State Bar of California,
the organization of all state-licensed lawyers, was rational
and therefore was constitutional.
COUNSEL
Marilyn S. Scheer (argued), Woodland Hills, California, pro
se Plaintiff-Appellant.
Michael von Loewenfeldt (argued) and Julie A. Stockton,
Kerr & Wagstaffe LLP, San Francisco, California; Thomas
A. Miller, Lawrence C. Yee, and Tracey McCormick, Office
4 SCHEER V. KELLY
of General Counsel, State Bar of California, San Francisco,
California, for Defendants-Appellees.
OPINION
BERZON, Circuit Judge:
Marilyn Scheer, a lawyer in California, challenges
California’s procedures for attorney discipline. Scheer argues
that California violated her constitutional rights by not
providing her meaningful judicial review in a fee dispute
between herself and a client. She also asserts that the rules
governing the California State Bar’s disciplinary procedures
are facially unconstitutional. The State Bar responds that
Scheer’s claims are meritless, and that in any event they are
barred by the Rooker-Feldman doctrine and the statute of
limitations for actions brought under 42 U.S.C. § 1983.
The State Bar is correct that Scheer’s as-applied
challenges are barred by the Rooker-Feldman doctrine. But
the State Bar misreads this Court’s statute-of-limitations
decision in Action Apartment Ass’n, Inc. v. Santa Monica
Rent Control Board, 509 F.3d 1020, 1026–27 (9th Cir. 2007),
which only applies to facial challenges involving property
rights. Scheer’s facial claims are not time-barred. They are,
however, meritless, and so the district court correctly
dismissed Scheer’s complaint.
I. Background
A client of Scheer’s sought a refund of a fee Scheer had
charged him. The client obtained an arbitration award against
Scheer for approximately $5,000, and sought enforcement of
SCHEER V. KELLY 5
the award via the State Bar’s administrative enforcement
proceedings. The award was enforced but Scheer failed to
repay the fee. After negotiations between Scheer, the client,
and the Bar to resolve the matter failed, the State Bar’s
administrative tribunal transferred Scheer to the involuntary
inactive enrollment list, suspending her license to practice
law.
Scheer challenged the decision via the State Bar’s internal
review procedures, Cal. State Bar R. 5.360–70, but did not
succeed. She then filed a petition for review in the California
Supreme Court, which was denied. Next, Scheer filed suit
against the State Bar in the U.S. District Court for the Central
District of California, alleging that its attorney discipline
system violates attorneys’ First Amendment and Fourteenth
Amendment rights. The district court granted the State Bar’s
motion to dismiss, holding that Scheer’s as-applied claims
were barred by the Rooker-Feldman doctrine and her facial
claims failed on their merits. Scheer timely appealed.
II
Scheer’s as-applied claims are barred under the Rooker-
Feldman doctrine. Her challenge to the State Bar’s decision
in her own case is a de facto appeal of the Supreme Court of
California’s denial of her petition for review, “brought by [a]
state-court loser[] . . . inviting district court review and
rejection of [the state court’s] judgments.” Skinner v.
Switzer, 562 U.S. 521, 532 (2011) (quoting Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).
The Rooker-Feldman doctrine applies to such challenges,
even where the relevant state court decision is a denial of
discretionary review. Craig v. State Bar of Cal., 141 F.3d
1353, 1355 n.3 (9th Cir. 1998).
6 SCHEER V. KELLY
III
The State Bar argues that Scheer’s facial challenges to
California’s statutes and regulations were barred by the
statute of limitations, relying on Action Apartment Ass’n, Inc.
v. Santa Monica Rent Control Board, 509 F.3d 1020 (9th Cir.
2007). The State Bar asserts that Action Apartment held that
the statute of limitations for facial challenges brought under
42 U.S. § 1983 begins running at the time the challenged
statute or ordinance was enacted. We disagree.
In Action Apartment, this Court considered a facial
challenge to a municipal rent control ordinance brought by an
association of landlords under 42 U.S.C. § 1983. 509 F.3d at
1022. The landlords argued that the ordinance deprived them
of their property rights in violation of the Fourteenth
Amendment’s substantive due process protections. Id. at
1026. Because the challenged ordinance had existed in one
form or another for decades, this Court had to decide how to
apply the two-year statute of limitations for § 1983 actions.
We adopted a principle used in the context of facial
challenges brought under the Takings Clause of the Fifth
Amendment — that “the cause of action accrues on the date
that the challenged statute or ordinance went into effect.” Id.
at 1027 (citing De Anza Props. X, Ltd. v. County of Santa
Cruz, 936 F.2d 1084, 1087 (9th Cir. 1991)). Because the
relevant provisions of the ordinance had been enacted more
than two years before the claim was brought, Action
Apartment held that the landlords’ claim was time-barred. Id.
The State Bar vastly overreads Action Apartment. It
asserts that Action Apartment’s holding applies to all facial
challenges to statutes and ordinances, not just those premised
on injuries to property rights. But Action Apartment and the
SCHEER V. KELLY 7
cases it cites are grounded in an analysis that applies only in
the context of injury to property. In that context, “the basis
of a facial challenge is that the very enactment of the statute
has reduced the value of the property or has effected a
transfer of a property interest. This is a single harm,
measurable and compensable when the statute is passed.”
Guggenheim v. City of Goleta, 638 F.3d 1111, 1119 (9th Cir.
2010) (en banc) (quoting Levald, Inc. v. City of Palm Desert,
988 F.2d 680, 688 (9th Cir. 1993)). After a law is enacted,
the price of the property is affected, and downstream
purchasers of the property will pay less for the property
because of the alleged taking. “A landowner who purchased
land after an alleged taking,” therefore, “has suffered no
injury.” Carson Harbor Village Ltd. v. City of Carson,
37 F.3d 468, 476 (9th Cir. 1994), overruled on other grounds
by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.
1997).1 As Action Apartment noted, this logic from the
takings context “applies with equal force” to the claimed
deprivation of a property right in violation of substantive due
process. 509 F.3d at 1027.
Action Apartment did state, in passing, that “any facial
injury to any right should be apparent upon passage and
enactment of a statute.” Id. But, given the context, it is clear
that, outside the property rights context, this statement was
meant to apply only to individuals actually affected by a
1
We have since noted that Carson Harbor is in some tension with the
Supreme Court’s decision in Palazzolo v. Rhode Island, 533 U.S. 606
(2001). Equity Lifestyle Props., Inc. v. County of San Luis Obispo,
548 F.3d 1184, 1190 & n.11 (9th Cir. 2007). We have declined, however,
to hold that Carson Harbor was overruled by Palazzolo, and have
continued to cite its reasoning. Id. Even if Carson Harbor’s reasoning is
no longer valid, that void would affect only the law surrounding statutes
of limitations for property-based claims, not our decision today.
8 SCHEER V. KELLY
statute at the time of its enactment. Outside the realm of
property rights, the more discrete reasoning of Action
Apartment is not pertinent. Many statutes and ordinances do
not just cause “a single harm, measurable and compensable
when the statute is passed.” Guggenheim, 638 F.3d at 1119
(quoting Levald, 998 F.2d at 688).
An unconstitutionally vague statute, for instance, may
pose “ongoing harms” to those who are unsure if their actions
fall within its ambit. See Valle del Sol Inc. v. Whiting,
732 F.3d 1006, 1029 (9th Cir. 2013). Laws that violate the
First Amendment may similarly place an “ongoing chill upon
speech” felt by individual speakers as they contemplate
communication. Citizens United v. Fed. Election Comm’n,
558 U.S. 310, 336 (2010). Such laws, moreover, could affect
organizations that did not exist when the laws were first
enacted, or individuals who were not at that time so situated
as to be affected by the regulation — or not even born yet.
Injuries occasioned by such statutes would not be apparent,
or even extant, at the time of their enactment to everyone
later impacted by them.
The State Bar’s reading of Action Apartment also runs
into a thicket of justiciability problems. The court rule
providing for discretionary review that Scheer challenges
went into effect in 1991. According to the State Bar, then,
Scheer would have had to bring her facial challenge before
the end of 1993. But at that point, she had not been subject
to discipline by the State Bar, nor is there any reason to think
that such discipline would have been foreseeable. If Scheer
had tried to bring her case within the State Bar’s asserted
statute of limitations, she would have had severe problems
establishing standing. See, e.g., Clapper v. Amnesty Int’l
U.S.A., 133 S. Ct. 1138, 1147–48 (2013); Wolfson v.
SCHEER V. KELLY 9
Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010). And the
State Bar’s approach to the statute of limitations would bar
facial challenges even by lawyers subject to the Bar’s
disciplinary system who had not been lawyers — or had been
small children — in 1993. Their cases would be time-barred
before they could even be brought, an absurd result.
Given these problems, it is unsurprising that such a
reading of Action Apartment is contradicted by this Court’s
precedents. If a facial challenge could only be brought
against a statute or ordinance within the limitations period as
measured by the enactment’s effective date, the vast majority
of currently extant statutes and ordinances would be beyond
a facial challenge. But this Court regularly hears — and
upholds — facial challenges to decades-old statutes, and has
done so in the years since Action Apartment.
Desertrain v. City of Los Angeles, 754 F.3d 1147, 1149
(9th Cir. 2014), for instance, struck down as facially
unconstitutional an L.A. ordinance, enacted in 1983,
prohibiting using a parked vehicle “as living quarters.”
McCormack v. Herzog, 788 F.3d 1017, 1029–30 (9th Cir.
2015), upheld a facial challenge to an Idaho statute passed in
1973 that placed restrictions on second-trimester abortions.
Under the State Bar’s logic, these unconstitutional laws
would have been completely insulated from facial challenges
for the last several decades, along with every other statute and
ordinance that has been around for more than a couple years.
Yet, the challengers may have been grade-school children
when the statutes were enacted, concerned with neither
obtaining shelter nor unwanted pregnancy.
The State Bar’s statute of limitations argument is
therefore entirely misdirected, both because of the targeted
10 SCHEER V. KELLY
reasoning underlying Action Apartment and because of this
Circuit’s case law subsequent to Action Apartment.
The statute of limitations did not begin running on
Scheer’s claim when the rules she challenges were enacted.
While the existence of the rules might have arguably put
Scheer “on notice” of the State Bar’s alleged violations in
some sense, as she was a lawyer at the time, this Court looks
to when a plaintiff “knows or has reason to know of the actual
injury,” Lukovsky v. City & County of San Francisco,
535 F.3d 1044, 1051 (9th Cir. 2008).
Scheer challenges the alleged absence of meaningful
judicial review for attorney discipline rulings. The “operative
decision” injuring her thus occurred when the California
Supreme Court denied her petition for review on June 12,
2013. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916,
926 (9th Cir. 2004) (quoting RK Ventures, Inc. v. City of
Seattle, 307 F.3d 1045, 1059 (9th Cir. 2002)). Scheer filed
her claim in this action on August 26, 2013, well within the
two-year statute of limitations. Her case is not time-barred.
IV
Scheer’s facial claims fail on their merits.
Scheer’s facial claims based on California’s state
constitution fail because they have already been rejected by
the Supreme Court of California. In re Rose, 22 Cal. 4th 430,
436 (2000). “It is fundamental that state courts be left free
and unfettered by the federal courts in interpreting their state
constitutions.” Bennett v. Mueller, 322 F.3d 573, 582 (9th
Cir. 2003) (alterations omitted) (quoting Michigan v. Long,
463 U.S. 1032, 1041 (1983)). Contrary to Scheer’s
SCHEER V. KELLY 11
contentions, People v. Kelly, 40 Cal. 4th 106 (2006), did not
overrule In re Rose.
Scheer’s First Amendment claims are unsupported. The
First Amendment does protect the right to access courts in a
variety of contexts in which filing fees or other barriers might
prevent some would-be litigants from bringing cases under
existing law. See, e.g., Ringgold-Lockhart v. County of Los
Angeles, 761 F.3d 1057, 1061 (9th Cir. 2014). But we are
aware of no case holding that the First Amendment provides
a freestanding right for an individual to have a state court
hear her dispute in the absence of some asserted state or
federal cause of action, statutory or judge-made.
Scheer’s Fourteenth Amendment Due Process and Equal
Protection claims also fail. Scheer was provided “notice and
opportunity for hearing appropriate to the nature of [her]
case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
542 (1985) (quoting Mullane v. Cent. Hanover Bank & Tr.
Co., 339 U.S. 306, 313 (1950)). We have previously held that
“[t]he State of California provides attorneys subject to
discipline with more than constitutionally sufficient
procedural due process.” Rosenthal v. Justices of the
Supreme Court of Cal., 910 F.2d 561, 565 (9th Cir. 1990).
Although California has altered its attorney discipline
procedures since Rosenthal to make the Supreme Court of
California’s review discretionary, this change is not so
significant as to create a due process violation. Scheer was
still afforded notice, a hearing, a written decision, and an
opportunity for judicial review.
Scheer may be right that the regulation of lawyers in
California is unlike California’s regulation of any other
professionals; but she has not demonstrated that this
12 SCHEER V. KELLY
regulatory scheme violates Equal Protection. As noted,
Scheer has not identified a First Amendment right burdened
by these regulations, so the proper level of scrutiny to apply
is rational basis review. Honolulu Weekly, Inc. v. Harris,
298 F.3d 1037, 1047 (9th Cir. 2002). The regulatory scheme
survives this review because the historically unique role of
lawyers allows states to treat legal practice differently from
other professions. Lawyers “are essential to the primary
governmental function of administering justice, and have
historically been ‘officers of the courts.’” Bates v. State Bar
of Ariz., 433 U.S. 350, 361–62 (1977) (quoting Goldfarb v.
Va. State Bar, 421 U.S. 773, 792 (1975)). Given both this
particular function of lawyers and the tradition of state court
regulation of lawyers, California’s decision to regulate
lawyers principally via a judicially supervised administrative
body attached to the State Bar of California, the organization
of all state-licensed lawyers, is rational and so constitutional.
We therefore AFFIRM the district court.