F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M A R I L Y N S. S C H E E R , an individual, Plaintiff-Appellant
,

v

.

P A T R I C K K E L L

Y , in his official capacity as President of the B oard of Trustees of the State B ar of California; J O A

N N R E M K E , in her official capacity

as the Presiding J udg e of the California State B a r Court; K E

N N E T H E. B A C O N , in his official capacity

as Presiding Arbitrator of the State B ar of California, Defendants-Appellees

. N o. 14-55243

D.C. No. 8:13-cv-01313- J L S-J PR

OPI NI ON

A ppeal from the United States District Court for the Central District of California J osephine L . Staton, District J udg e, Presiding

Arg ued and Submitted F ebruary 1 1, 2016—Pasadena, California

F iled April 4, 2016S C H E E R V

. K E L L Y 2

B efore: Marsha S. B erz on and J o h n B . Owens, Circuit J u d g es and Alg enon L . Marbley
, * District J udg e

.

Opinion by J udg e B e rz on

SUMMARY * *

Civil Rights

The panel affirmed the d i s trict court’s dismissal of an action broug ht pursuant to 42 U.S.C. § 1983 by a California l awy er w ho challeng ed California’s p r ocedures for attorney discipline.

Plaintiff asserte d that California violated her constitutional rig hts by not providing her meaning ful judicial review in a f

ee dispute between h erself and a client. She also

a sserted that the rules g o verning the California State B a r’ s disciplinary

procedures are facially

unconstitutional.

The panel first h eld that p laintiff’s a s-applied claims were barred by the Rooker-Feldman doctrine b ecause the challeng e to the State B ar’s d ecision in her own case was a d e facto
app e a l of the Supreme Court of California’s denial o f her petition for review.

* T h e H o n o r ab le A lg en o n L

. Marb ley
, District J u d g e f or th e U .S. District Co u

rt f o r th e So u th ern District o f Oh i o , sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S C H E E R V

. K E L L Y 3

The panel held that p laintiff’s facial claims were not timebarred. The “operative decision” injuring plaintif f o c c urred when the California Su p r eme Court d enied her petition for review on J u ne 12, 2 013, and she filed her claim in this action

on Aug ust 26, 2013, well w i t h in the two-y e ar statute o f limitations. The panel held that the State B ar misr e a d t h is Court’s statute-of- l imitations decision in Action Apartment Ass’n, Inc. v. Santa Monica Rent Control Board
, 509 F .3d 1020, 1026-27 ( 9 t h C ir. 2007), w hich only applies to facial challeng es involving property rig hts.

The panel held that plaintiff’s facial claims b ased o n California’s state co n stitution failed because they have already been rejected by the Supreme Court of California. I n

re Rose
, 22 Cal. 4th 430, 436 (2000). Plaintiff’s F ourteenth Amendment Due Process and Equal Protection claims also failed. The panel held that plaintiff w as provided n otice a nd opportunity for a hearing appropriate to t h e nature of her

case. T he p a

nel concluded that Califor nia’s decision to reg ulate lawy ers p rincipally via a judicia l l y supervised administrative body attached to the S t a te B ar of California, the org a niz ation of all state-li c ensed lawy ers, was rational and therefore was constitutional.

COUNSEL

Marily n S. Scheer (arg

ued), Woodland H ills, California, pro se Plaintiff-Appellant.

Michael v on L oewenfeldt (arg ued) and J ulie A. Stockton, Kerr & W a g staffe L L P, San F rancisco, California; T h omas A. Miller, L a

wrence C. Yee, and Tracey McCormick, OfficeS C H E E R V

. K E L L Y 4

of General Counsel, State B ar of Cali f o r n i a , San F rancisco, California, for Defendants-Appellees.

OP INION

B ERZ ON, Circuit J udg e :
Marily n Scheer, a lawy er in California, chal l e n ges California’s procedures for attorney d iscipline. Sche e r arg ues that California violated her constitutional rig hts by not providing her meaning f

ul judicial r eview in a fee dispute between herself and a client. She also asserts that the rules
g overning the California State B ar’s disciplinary procedures

ar e f a c ially unconstitutional. The State B a r responds that Scheer’s claims are meritless, and that in any event they a re barred by the Rooker-Feldman doctrine an d the statute o f limitations for actions broug ht under 42 U.S.C. § 1983.

The State B a

r is correct tha t Scheer’s as-applied challeng es are barred by the Rooker-Feldman d o c t r ine. B ut the State B ar misreads this Court’s statute

- of-limitations de c ision in A ction Apartment Ass’n, Inc. v. S anta Monica Rent Control B oard
, 5 09 F .3d 1020, 1026–27 (9th Cir. 2007), which only applies to facial challeng es i nvolving property rig hts. Scheer’s facial claims are not time-barred. They are, however, meritless, a

nd so the dis t rict court correctly dismissed Scheer’s complaint.

I. Background

A client of Scheer’s soug ht a refund of a fee Scheer h ad charg ed h im. The client obtained an arbitration award ag ainst Scheer f or approx imately $5,000, a n d soug ht enforcement o fS C H E E R V

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the award via the State B a r’s administrat i v e enforcement proceeding s. T he awa rd was enforced but Scheer failed to repay the fee. After neg otiations between Scheer, the c lient, and the B ar to resolve t h e m a t t er failed, the State B ar’s administrative tribunal transferred Scheer to the involuntary inactive enrollment list, suspending her license to p r a c tice law.

Scheer challeng ed the decision via the State B ar’s internal review procedures, Cal. State B ar R. 5.360–70, b u t d id not succeed. She then filed a petition for review in the California Supreme Court, which was denied

. Nex t, Scheer f iled suit
ag ainst the State B a

r in the U.S. District Court for the Central District of California, alle g ing that its attorney discipline
sy stem violates a ttorney s’ F irst A m e ndment and F ourteenth Amendment rig hts. The district court g ranted the State B ar’s motion to dismiss, h o lding that Scheer’s a s

- a pplied c laims

were b arred by the Rooker-Feldman doc t r i n e and her facial claims failed on their merits. Scheer timely appealed.

I I

Scheer’ s a s-applied c laims are barred under the RookerFeldman doctrine. Her challeng e to the State B ar’s decision in her own case is a de facto appeal of the Supreme Court o f California’s denial of her p e tition for review, “broug ht by [ a]
state-c ourt loser[ ]

. . . inviting d istrict court review a nd rejection o f [ the state court’s] judg ments.” Skinner v

. Switzer
, 5 6 2 U. S. 521, 532 (2011) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp.
, 544 U.S. 280, 284 (2005)). The Rooker-Feldman d octrine applies to such cha lleng es,

eve n w h e r e the relevant state court decision is a denial o f discretionary r eview. Craig v. State B a r of Cal.
, 141 F .3d 1353, 1355 n.3 (9th Cir. 1998).S C H E E R V

. K E L L Y 6

I I I

The State B ar a

rgues that Scheer’s facial challeng e s to California’s statutes and reg u lations were b arred b y t h e statute of limitations, rely ing on Action Apartment Ass’n, Inc.

v. Santa Monica Rent Control Board
, 509 F .3d 1020 (9th Cir. 2007). The State B ar asserts that Action Apartment held that the statute of limitations for facial c h alleng es broug ht under 42 U.S. § 1 9 8 3 beg ins running a t the time the challeng ed statute or ordinance was enacted. W e disag ree.

I n Action Apartment
, this Court co n s i d e red a facial challeng e to a municipal r ent control ordinance broug ht b y an association of landlords under 42 U.S.C. § 1983. 5 09 F .3d at 1022. The landlords arg ued that the ordinance deprived them of their property rig hts in v i o lation of the F ourteenth Amendment’s substantive due p roce s s p rotections. Id. at 1026. B e cause the challeng ed ordinance h a d ex isted in o ne form or another for decades, this Court had to decide how to apply the two-y ear statute of limitations for § 1983 a ctions. W e adopted a principle u sed in th e c o n tex t of facial challeng es broug ht under the Taking s Clause o f t he F ifth Amendment — that “the cause of action accrues on the date that the challeng ed statute or ordinance went into e ffect.” Id.
at 1027 (citing D e Anza Props. X, Ltd. v. Co u n t y of Santa Cruz
, 9 3 6 F .2d 1084, 1087 (9th Cir. 1991)). B ecause the relevant provisions of the o rdi n an c e had been enacted more than two y ears before the claim was br o ug ht, A ction Apartment held that the landlords’ claim was time-barred. Id.

The State B ar vastly overreads A c tion A p artment. I t asserts that Action Apar t m e nt ’s holding applies to all facial challeng es to statutes and ordinances, not just those premised on injuries to p roperty rig hts. B u t Action Apartment and theS C H E E R V

. K E L L Y 7

cases it cites are g

rounded in an analy sis that applies only in the conte x t of injury to property

. I n that contex t, “the basis of a facial challeng e is that the very enactment of the statute has r educed the value o f the property or h as effected a t r a n s fer of a property interest. This is a sing le h a r m , measurable and compensable when the statute is passed.” Guggenheim v. City o

f G oleta
, 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)). A f t e r a l aw is enacted, the price of the property i s a f f ected, and downstream purchasers of the property will pay less for the property because o f the alleg ed taking

. “A landowner who purchased land a fter an alleg ed taking ,” therefore, “has suffered no injury .” Carson H

a r b or Village Ltd. v. City o f Carson
, 37 F .3d 4 68, 476 (9th Cir. 1 994), overruled on other grounds by W MX Techs., Inc. v

. Miller
, 104 F .3d 1133, 1136 (9th Cir. 1997). 1 As Action A

p artment noted
, t h i s log ic from the taking s contex t “applies with e qual f o r c e” to the claimed deprivation o f a property rig ht in violation of substantive d ue process. 509 F .3d at 1027.

Action Apartment d id state, in passing
, that “an y facial injury t o any rig ht should be apparent upon passag e a nd
enactment of a statute.” I

d

. B ut, g iven the contex t, it is clear that, outsid e the property r ig hts contex t, this statement was meant to apply only to individuals actually affected by a

1 W e h av e sin ce n o ted t

h at Ca rso n Ha rb o r is i n

so m e ten sio n w ith th e Su p rem e Co u rt’ s d ecis i o n i n Pa la zzo lo v. Rh o d e Isla n d
, 5 3 3 U.S. 6 0 6 (2 0 0 1). Eq u ity Lifestyle Pro p s ., In c. v. Co u n ty o

f S a n Lu is Ob isp o , 5 4 8 F.3 d 1 1 8 4
, 1 1 9 0 & n .1 1 (9 th Cir. 2 0 0 7 ). W e h av e d eclin ed
, h o w ev er, to h o l d t ha t Ca rso n Ha rb o r w as o v erru l ed by Pa la zzo l o , an d h av e

co n tin u ed t o cite its reaso n in g

. Id

. Ev en if Ca rso n Ha rb o r ’ s reaso n in g is

n o lo n g er v alid , th at v o id w o u ld af f ect o n ly th e l aw s u rro u n d in g statu tes

o f lim itatio n s f

o r p ro p erty

- b ased claim s, n o t o u r d ecisio n to d ay

.S C H E E R V

. K E L L Y 8

statute a t the time of its enactment. O utside the realm o f property rig hts, the more discrete r e a s oning o f A ction Apartment is not pertinent. Many statutes and ordinances do
not just cause “a sing l e h a r m , measurable and compensable when the statute is passed.” Guggenheim
, 6 3 8 F .3d at 1119 (quoting Levald , 998 F

. 2 d at 688).

An unconstitutionally va gue statute, for instance, may pose “ong oing harms” to those who a re unsure if their actions fall within its ambit. See Valle del Sol Inc. v

. W h i t i ng , 732 F .3 d 1 0 0 6
, 1 029 (9th Cir. 2013). L aws that violate the F irst Amendment may similarly place a n “ong oing c hill upon speech” f elt by individual speakers as they contemplate communication. Citizens U n ited v. Fed. Election Comm’n
, 558 U.S. 3 10, 336 (2010). Such laws, moreover, could affect
org aniz ations that did not ex ist wh e n the laws w ere first enacted, or individuals who were not at that time so situated

as to b e affected by the reg ulation — or not e v e n born y e t. I njuries o ccasioned by such statutes would not be apparent,

or even e x tant, a t the time of their e nactment to every o ne later impacted by

them.

The State B ar’s reading of A ction Apa r t ment also r uns into a thicket of justiciability p ro blems. The court rule providing for discretionary review that Sche e r c halleng e s went into ef

fe c t in 1991. A ccording to the State B ar, then, Scheer would have had to bring h e r f acial challeng e before the end o f 1993. B ut at that point, she had not bee n subject
to discipline by the State B ar, nor is there any reason to think that such discipline would have b een foreseeable. I f S c heer had tr i e d to bring her case within the State B ar’s asserted
statute of limitations, sh e w o uld h ave had severe problems establishing standing

. See, e.g. , Clapper v. Amnesty Int’l U.S.A.
, 1 3 3 S. C t

. 1138, 1147–48 (2013); W olfson v

.S C H E E R V

. K E L L Y 9

Brammer
, 616 F .3d 1045, 1058 ( 9 t h C ir. 2010). And the State B ar’s approach to the statute o f limitations w ould bar facial challeng es even by lawy ers subject t o t h e B ar’s disciplinary sy stem who had not been lawy ers — or had been small children — in 1993. Their cases would be time-barred before they could even be broug ht, an absurd result.

Given these problems, it is unsurprising that s u c h a reading of Ac t ion Apartment is c ontradicted by this Court’s precedents. I f a facial challeng e could only be broug ht
ag ainst a statute or ordinance within the limitations p eriod a s measured by the enactment’s effective date, the vast majority of currently

ex tant statutes and ordinances would b e bey ond

a facial c halleng e. B ut this Cou r t reg ularly hears

— a nd upholds — facial c h alleng e s to decades-old statutes, and has done so in the y ears since Action Apartment

.

Desertrain v. City of Los Angeles
, 7 54 F.3d 1147, 1149 (9th Cir. 2 014), for instance, struck down as f a cially unconstitutional an L

. A

. o rdinance, enacted in 1983, prohibiting using a parked vehicle “as living quarters.” McCormack v. Herzog
, 788 F .3 d 1 017, 1029–30 (9th Cir. 2015), upheld a f

acial challeng e to an I daho statute passed in 1973 that placed restr i c t ions on second-trimester a bortions. Under the State B a

r’s log ic, these unconstitutional laws would h a ve been completely insulated from facial c halleng e s for the last several decades, along with every o ther statute a nd ordinance that has been around f or more than a couple y ears. Yet, the c hal l en g ers may have been g rade-school children when the statute s w e re enacted, concerned w ith neither obtaining shelter nor unwanted preg n ancy

.

The State B ar’s statute of limitations arg ument is therefore entirely misdirected, b o t h because of the targ etedS C H E E R V

. K E L L Y 10

reasoning underlying A ction Apartment and because of this Circuit’s case law subsequent to Action Apartment.

The statute of limitations did n o t beg in running on Scheer’s claim when the r ules she challeng es were ena c t ed. W h i l e t h e e x istence of the rules mig h t have arg uably put Scheer “on notice” o f the State B ar’s alleg ed v iolations in

some sense, as she was a lawy er at the time, this Court looks
to when a plaintiff “knows or has reason to know of the actual injury ,” Lukovsk

y v. City & County of San Francisco
, 535 F .3d 1044, 1051 (9th Cir. 2008).

Scheer c halleng e s the alleg ed absence of meanin gf u l judicial review for attorney discipline ruling s. The “operative decision” injuring her thus occurred when the California Supreme Court d enied her petit i o n f o r review on J une 12, 2013. See Olsen v. Idaho State Bd. of Me d

. , 3 6 3 F .3d 916, 926 ( 9 th Cir. 2004) (quoting RK Ventu res, I nc. v. City of Seattle
, 307 F .3d 1045, 1 059 (9th Cir. 2002)). S c h ee r filed her claim in this action on Aug ust 26, 201 3
, w e l l w ithin the two-y ear statute of limitations. Her case is not time-barred.

I V

Scheer’s facial claims fail on their merits.

Scheer’s facial claims b ased o n California’s state constitution fail because they have already b een rejected b y the Supreme Court of California. I n re Rose
, 22 Cal. 4 th 430, 436 (2000). “I t is fundam e ntal that state courts be left free and unfettered by the federal courts in interpreting their state constitutions.” Bennett v. Mueller
, 322 F

. 3 d 573, 582 (9th C ir. 2003) (alterations omitted) (quoting Michigan v. Long
, 463 U.S. 103 2
, 1 0 41 (1983)). Contrary to Scheer’sS C H E E R V

. K E L L Y 11

contentions, People v. Kelly , 40 Cal. 4th 106 ( 2006), did not overrule In re Rose.

Scheer’s F irst Amendment claims are unsupported. The F irst Amendment does protect the rig ht to access courts in a variety of contex ts in which filing f ees or other barriers mig ht prevent some would-be liti ga n t s f rom b ring ing cases under

ex isting law. S

ee, e .g. , Ringgold-Lockhar t v

. County of Los Angeles
, 7 61 F .3d 1057, 1061 ( 9 t h C i r

. 2014). B ut we a re

aware of n o case holding that the F irst Amendment provides

a freestanding rig ht for an individual to have a state court hear her dispute in the absence o f s o me asserted state o r federal cause of action, statutory or judg e-made.

Scheer’s F o urteenth A mendment Due Process and E q ual Protection claims also fail. Scheer was p rovided “notice a nd opportunity for hearing appropriate to th e n a ture of [her] case.” Cleveland Bd. of Educ. v. Loudermill
, 4 7 0 U

. S

. 532, 542 (1985) (quoting Mullane v. Cent. Hanov e r Bank & Tr. Co.
, 339 U.S. 306, 313 (1950)). We have previously held that “[ t] he State of California provides attorney s s u bject to discipline with more than co n s t itutionally sufficient procedural due proces s

. ” Rosenthal v. Justices of the Supreme Court of Cal.
, 910 F .2d 561, 5 65 (9 t h C i r

. 1990). Althoug h Californ i a has altered its attorney discipline procedures since Rosen t h a l to make the Supreme Court o f California’s review discretionary
, this chang e is not so sig nificant as to create a due process violation. S c h ee r was still afforded notice, a h earing
, a w ritten decision, and an opportunity

for judicial review.

Scheer may b e r i ght that the r eg ulation of lawy ers in California is unlike California’s r e g ulation of any o t h er professionals; but she has not demonstrated that thisS C H E E R V

. K E L L Y 12

reg ulatory scheme v iolates Equal Protection. As n oted, Scheer has not identified a F irst Amendment rig ht burdened by these reg ulations, s o t he proper level of scrutiny to a pply is rational basis review. H o n o l u l u W

eekly, Inc. v

. Harris
, 298 F .3d 1 037, 1047 ( 9th Cir. 2002). The reg ulatory scheme survives this review because the h istorically unique r o le o f lawy ers allows states to treat leg al practice d i f ferently from other professions. L awy e rs “are essential to the primary
g overnmen t a l function of administering justice, and have historically been ‘officers of the courts.’” Ba t es v. State Bar of Ariz.
, 433 U.S. 350, 361–62 (1977) (quoting Goldfarb v

. Va. State Bar
, 421 U.S. 773, 792 (1975)). Giv en both this particular function of lawy ers and the tradition of state court reg ulation of lawy e rs, C alifornia’s decision to reg ulate lawy ers principally via a judicially supervised administrative body attached to the State B ar of California, the org aniz ation of all state-licensed lawy ers, is rational and so constitutional.

W e therefore AF F IRM the district court.