Nat'l Conf. of Personal Mgrs. v. Edmund Brown, Jr. , 690 F. App'x 461 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 25 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL CONFERENCE OF No. 15-56388
PERSONAL MANAGERS, INC., a Nevada
not-for-profit corporation, D.C. No.
2:12-cv-09620-DDP-RZ
Plaintiff-Appellant,
v. MEMORANDUM*
EDMUND G. BROWN, Jr., Governor of the
State of California, in his official capacity,
and JULIE A. SU, California Labor
Commissioner, in her official capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted April 6, 2017**
Pasadena, California
Before: PLAGER,*** CLIFTON, and OWENS, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable S. Jay Plager, United States Circuit Judge for the U.S.
Court of Appeals for the Federal Circuit, sitting by designation.
The National Conference of Personal Managers (“NCOPM”) appeals from
the district court’s dismissal of its claims against the California Governor and
Labor Commissioner for failure to state a claim.1 NCOPM alleged that the
defendants’ enforcement and interpretation of the California Talent Agencies Act
(“TAA”), Cal. Lab. Code §§ 1700 et seq., are unconstitutional under the
Fourteenth Amendment, Commerce Clause, and First Amendment. As the parties
are familiar with the facts, we do not recount them here. We have jurisdiction
under 28 U.S.C. § 1291. We affirm.
1. The district court correctly determined that the Governor had
sovereign immunity from this suit because he lacked the requisite connection to
enforcement of the TAA. To overcome the protections of sovereign immunity to
sue a state official, the plaintiff must show that the official “[has] some connection
with the enforcement of the act[.]” Ex Parte Young, 209 U.S. 123, 157 (1908).
The Governor is responsible for executing and enforcing the laws of California, but
the general enforcement of laws does not establish the “requisite enforcement
connection” to overcome sovereign immunity. Nat’l Audubon Soc’y, Inc. v. Davis,
307 F.3d 835, 847 (9th Cir. 2002).
The district court correctly determined that the Labor Commissioner had the
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NCOPM also appealed the dismissal of its claims against the California Attorney
General, who is no longer a party to this appeal following this court’s order and a
stipulated dismissal pursuant to Fed. R. App. Proc. 42(b).
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requisite connection to enforcement of the TAA to be sued. See Cal. Lab. Code
§§ 1700.3, 1700.6, 1700.7, 1700.15, 1700.21, and 1700.29. These connections are
sufficient such that the Labor Commissioner is subject to suit under Ex Parte
Young.
The district court also correctly determined that NCOPM had standing for
declaratory and injunctive relief. The district court determined that NCOPM
represents members who were subject to enforcement of the TAA based on the
State’s past enforcement actions and therefore had the “real and reasonable
apprehension that [they] will be subject to liability[.]” Societe de Conditionnement
en Aluminium v. Hunter Eng’g Co., 655 F.2d 938, 944 (9th Cir. 1981).
2. The district court properly dismissed with prejudice NCOPM’s
Fourteenth Amendment claim that the TAA violates due process based on facial
and as-applied vagueness. A law is unconstitutionally vague if it does not provide
a “person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S.
104, 108 (1972). NCOPM challenges Cal. Lab. Code §§ 1700.4 and 1700.5 for
vagueness, because neither statute allegedly provides adequate notice as to what
actions constitute “procuring . . . employment.” In rejecting a vagueness challenge
to the TAA, the California Court of Appeal noted that Webster’s Dictionary
defines “procure” as “to get possession of: obtain, acquire, to cause to happen or be
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done: bring about.” Wachs v. Curry, 16 Cal. Rptr. 2d 496, 503 (Cal. Ct. App.
1993), abrogated on other grounds, see Marathon Entm’t, Inc. v. Blasi, 174 P.3d
741, 748 n.6 (Cal. 2008). As the Wachs court observed, the term “procure” is used
with respect to employment in several other California statutes and is not “so
lacking in objective content as to render the Act facially unconstitutional” or
unconstitutional as-applied here. Id.
3. The district court properly dismissed with prejudice NCOPM’s claim
that the TAA violates the dormant Commerce Clause. NCOPM argues that the
TAA violates the Commerce Clause because it does not permit out-of-state
licenses. But § 1700.19(b) merely provides than an actual license must contain an
address of the location in which the licensee is authorized to conduct business as a
talent agency – the law does not preclude out-of-state parties from becoming
licensed talent agencies.
NCOPM also argues that § 1700.44(d) creates a discriminatory two-tier
system for talent representation, because out-of-state parties cannot become
licensed and therefore any out-of-state party can only negotiate an employment
contract with the consent of an in-state licensed agency. But § 1700.44(d) merely
provides that “[i]t is not unlawful” for an unlicensed person or corporation to act
“in conjunction with, and at the request of, a licensed talent agency in the
negotiation of an employment contract.” It does not preclude out-of-state
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licensees.
In addition, NCOPM argues that § 1700.12(b) is discriminatory because it
imposes a $50 fee on in-state talent agency offices. This is true, but this $50 fee
does not discriminate against out-of-state parties and therefore does not violate the
Commerce Clause.
4. The district court properly dismissed with prejudice NCOPM’s claim
that the TAA violated the First Amendment. We agree with the district court that
the TAA regulates non-expressive conduct, not speech. Because the TAA
“regulates a professional practice that is not inherently expressive, it does not
implicate the First Amendment.” Pickup v. Brown, 740 F.3d 1208, 1230 (9th Cir.
2014). It is only subject to rational basis review, which it survives. See Marathon
Entm’t, Inc., 174 P.3d at 746-47 (noting that the TAA was enacted to prevent the
exploitation of artists by representatives).
5. We grant the appellees’ request for judicial notice. See W. Radio
Servs. Co. v. Qwest Corp., 530 F.3d 1186, 1192 n.4 (9th Cir. 2008).
AFFIRMED.
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