Thursday, December 7, 2023
The United States Court of Appeals for the Ninth Circuit affirmed the sovereign immunity of the California State Bar in litigation brought under the Americans with Disabilities Act.
The en banc court (1) affirmed in part the district court’s dismissal of attorney Benjamin Kohn’s action against the State Bar of California and the California Committee of Bar Examiners under Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and California law; and (2) remanded to the original three-judge panel for consideration of the remaining issues.
In the State Bar’s role in the admission of attorneys, it acts under the authority and at the direction of the California Supreme Court. Kohn sought monetary damages and other relief based on the State Bar’s refusal to provide him with certain test-taking accommodations for the bar exam. The district court dismissed the action on the basis of Eleventh Amendment immunity.
The en banc court reaffirmed that the California State Bar enjoys Eleventh Amendment immunity from suit in federal court. The en banc court held that Eleventh Amendment immunity extends not only to suits in which a state itself is a named party, but also to suits against an “arm of the state.” The Ninth Circuit’s version of the test for determining whether an entity is an arm of the state applied the so-called Mitchell factors. The en banc court concluded that the Mitchell factors test should be reshaped in light of developments in Supreme Court doctrine and the Ninth Circuit’s experience applying the Mitchell factors. Accordingly, the en banc court adopted the D.C. Circuit’s three-factor test, which considers: (1) the state’s intent as to the status of the entity, including the functions performed by the entity; (2) the state’s control over the entity; and (3) the entity’s overall effects on the state treasury.
Applying this updated three-factor test, the en banc court held that the California State Bar is an arm of the state and entitled to sovereign immunity. The en banc court concluded that the first factor, California’s intent as to the State Bar, strongly favored the conclusion that it is an arm of the state, as did the second factor, the state’s control over the State Bar. The en banc court concluded that the third factor, the State Bar’s effects on the state treasury, presented a closer call but was not dispositive.
Concurring in part, Judge Mendoza agreed with the majority that the Mitchell factors were out of step with the Supreme Court’s jurisprudence and that the California State Bar is an arm of the state for sovereign immunity purposes. He wrote separately to caution against adopting the D.C. Circuit’s approach to weighing the sovereign immunity factors, and he disagreed with the majority’s wholesale embrace of the D.C. Circuit’s entity-based approach to sovereign immunity.
Concurring in part and dissenting in part, Judge Bumatay, joined by Judge Sung, wrote that he agreed with the majority’s abandonment of the Mitchell factors in favor of the D.C. Circuit’s more streamlined approach, looking at intent, control, and overall effects on a state’s treasury to determine whether an entity is an arm of the state. Judge Bumatay, however, disagreed with the majority’s application of this new approach, and he would hold that each of its factors cuts against finding sovereign immunity for the California State Bar.
we update our arm of the state jurisprudence to better reflect the Supreme Court’s latest guidance and affirm our precedent that the California State Bar is entitled to immunity from suit in federal court. We remand to the original three-judge panel for consideration of the remaining issues consistent with this opinion.
Circuit Judge Mendoza, concurring in part
Unlike the majority, I hesitate to embrace the D.C. Circuit’s conclusion that “once an entity is determined to be an arm of the State under the three-factor test, that conclusion applies unless and until there are relevant changes in the state law governing the entity.” P.R. Ports Auth., 531 F.3d at 873. In my view, we need not reach this issue today, given that it was neither briefed nor argued. And while this categorical approach to sovereign immunity may make our job easier as judges, it lacks consistent support in our precedent or practice and would lead to anomalous results.
Dissent of Circuit Judge Bumatay, while agreeing on the articulated test
But I part ways with the majority’s application of this new approach to the facts before us. In my view, each of its factors cuts against finding sovereign immunity for the State Bar of California. First, California has made evident its intent to treat the State Bar more like an independent statecreated entity, such as a municipality, rather than an “arm of the State.” Second, California has relinquished nearly all direct and immediate control over the Bar. And finally, California is not on the hook for the Bar’s funding or its debts. With these considerations in mind, we should have recognized that the State Bar is not entitled to the sovereign immunity reserved only for the State and its instrumentalities.