FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARILYN S. SCHEER, an individual,

Plaintiff-Appellant,

v.

PATRICK KELLY, in his official

capacity as President of the Board of

Trustees of the State Bar of

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.

No. 14-55243

D.C. No.

8:13-cv-01313-

JLS-JPR

OPINION

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 bythe 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 timebarred. 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 attorneydiscipline. 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 RookerFeldman 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 attorneydiscipline 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.