Mothershed v. Justices of the Supreme Court ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE L. MOTHERSHED, 
Plaintiff-Appellant,
v.
JUSTICES OF THE SUPREME COURT;
CLERK OF THE SUPREME COURT,
STATE OF ARIZONA; SUPREME
COURT OF ARIZONA DISCIPLINARY
COMMISSION; HEARING OFFICER; BAR
COUNSEL OF ARIZONA STATE BAR No. 03-16878
ASSOCIATION; STATE OF OKLAHOMA D.C. No.
JUSTICES OF THE SUPREME COURT; CV-02-02375-RCB
OKLAHOMA PROFESSIONAL
ORDER
RESPONSIBILITY TRIBUNAL OF THE
SUPREME COURT, Chief Master;  AMENDING
OPINION AND
OKLAHOMA PROFESSIONAL
DENYING
RESPONSIBILITY TRIBUNAL OF THE
PETITION FOR
SUPREME COURT, Trial Panel of
REHEARING AND
February 1, 2002; GENERAL
AMENDED
COUNSEL OF OKLAHOMA BAR
OPINION
ASSOCIATION; TRIAL COUNSEL OF
OKLAHOMA BAR ASSOCIATION;
RUDOLPH HARGRAVE, Oklahoma
Supreme Chief Justice; MADELINE
HARGRAVE, Wife; ROBERT E.
LAVENDER, Justice, Oklahoma
Supreme Court; MAXINE LAVENDER,
Wife; JOSEPH M. WATT, Vice-Chief
Justice, Oklahoma Supreme Court;

8519
8520 MOTHERSHED v. JUSTICES
CATHY WATT, Wife; RALPH B. 
HODGES, Justice, Oklahoma
Supreme Court; JANELLE HODGES,
Wife; MARIAN P. OPALA, Justice,
Oklahoma Supreme Court; JANE
DOE OPALA, Wife; DANIEL J.
BOUDREAU, Justice, Oklahoma
Supreme Court; JANE DOE
BOUDREAU, Wife; YVONNE KAUGER,
Justice, Oklahoma Supreme Court;
NED BASTOW, Husband; HARDY
SUMMERS, Justice, Oklahoma
Supreme Court; MARILYN
SUMMERS, Wife; JAMES
WINCHESTER, Justice, Oklahoma
Supreme Court; SUSAN 
WINCHESTER, Wife; J. DANIEL
MORGAN, Chief Master,
Professional Responsibility
Tribunal of the Supreme Court of
the State of Oklahoma; JANE DOE
MORGAN, Wife; J. PATRICK KENT,
Presiding Master, Professional
Responsibility Tribunal of the
Supreme Court of the State of
Oklahoma; JANE DOE KENT, Wife;
ROBERT L. HERT, JR., Member of
Trial Panel of the Professional
Responsibility Tribunal of the
Supreme Court of the State of
Oklahoma; JANE DOE HERT, Wife;

MOTHERSHED v. JUSTICES 8521
DANA WILLIAMS, Member of Trial 
Panel of the Professional
Responsibility Tribunal of the
Supreme Court of the State of
Oklahoma; DALE CABINESS,
Member of Trial Panel of the
Professional Responsibility
Tribunal of the Supreme Court of
the State of Oklahoma; JANE DOE
CABINESS, Wife; DAN MURDOCK,
General Counsel, Supreme Court
of Oklahoma; JANE DOE MURDOCK,
Wife; ALLEN J. WELCH, Bar
Counsel, Oklahoma Supreme
Court; JANE DOE WELCH, Wife;
CHARLES E. JONES, Chief Justice,
Arizona Supreme Court; JANE DOE 
JONES, Wife; RUTH V. MCGREGOR,
Vice Chief Justice, Arizona
Supreme Court; JOHN DOE
MCGREGOR, Husband; STANLEY
FELDMAN, Justice, Arizona
Supreme Court; JANE DOE
FELDMAN, Wife; REBECCA WHITE
BERCH, Justice, Arizona Supreme
Court; JOHN DOE BERCH, Husband;
MICHAEL D. RYAN, Justice,
Arizona Supreme Court; JANE DOE
RYAN, Wife; PETER CAHILL,
Member of the Disciplinary
Commission of the Supreme Court
of Arizona; JESSICA GIFFORD
FUNKHOUSER, Member of the

8522 MOTHERSHED v. JUSTICES
Disciplinary Commission of the 
Supreme Court of Arizona;
CYNTHIA L. CHOATE, Member of
the Disciplinary Commission of
the Supreme Court of Arizona;
BARBARA ATWOOD, Member of the
Disciplinary Commission of the
Supreme Court of Arizona; C.
ALAN BOWMAN, Member of the
Disciplinary Commission of the
Supreme Court of Arizona; CRAIG
MEHRENS, Member of the
Disciplinary Commission of the
Supreme Court of Arizona; STEVEN
G. NELSON, Member of the 
Disciplinary Commission of the
Supreme Court of Arizona; LOREN
J. BRAUD, Bar Counsel, Arizona
Supreme Court aka Loren J.
Broad; JANE DOE BRAUD, Wife aka
Jane Doe Broad; JOHN PRESSLEY
TODD, Hearing Office 7X, Arizona
Supreme Court; JANE DOE TODD,
Wife; NOEL K. DESSAINT, Clerk,
Arizona Supreme Court; WILLIAM
M. SPENCE, Attorney; JANE DOE
SPENCE, Wife,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Robert C. Broomfield, District Judge, Presiding
Argued and Submitted
April 15, 2005—San Francisco, California
MOTHERSHED v. JUSTICES 8523
Filed June 6, 2005
Amended July 21, 2005
Before: Alfred T. Goodwin, Robert R. Beezer, and
Diarmuid F. O’Scannlain, Circuit Judges.
Opinion by Judge O’Scannlain
8526 MOTHERSHED v. JUSTICES
COUNSEL
George L. Mothershed, Phoenix, Arizona, argued the cause
for the appellant and filed a brief.
LeslieAnn Haacke, Renaud Cook Drury Mesaros, P.A., Phoe-
nix, Arizona, argued the cause for the appellees; Terry God-
dard, Attorney General, Phoenix, Arizona, Rosa Mroz,
Assistant Attorney General, Phoenix, Arizona, N. Todd
McKay, Renaud Cook Drury Mesaros, P.A., Phoenix, Ari-
zona, Charles K. Babb, Assistant Attorney General, Okla-
homa City, Oklahoma, and Allen J. Welch, Oklahoma Bar
Association, Oklahoma City, Oklahoma, were on the brief.
ORDER
The opinion filed June 6, 2005, is hereby amended as fol-
lows:
Slip Op. at 6334, line 1: After “proceedings,” insert the fol-
lowing footnote:
In Exxon Mobil, the Supreme Court clarified that
the Rooker-Feldman doctrine is only operative
where a federal suit is initiated after state court pro-
MOTHERSHED v. JUSTICES 8527
ceedings have ended. 125 S. Ct. at 1526 (“In both
[Rooker and Feldman], the losing party in state court
filed suit in federal court after the state proceedings
ended . . . .”). Proceedings end for Rooker-Feldman
purposes when the state courts finally resolve the
issue that the federal court plaintiff seeks to relitigate
in a federal forum, even if other issues remain pend-
ing at the state level. See Federacion de Maestros de
Puerto Rico v. Junta de Relaciones del Trabajo de
Puerto Rico, 410 F.3d 17, 25 (1st Cir. 2005) (“if the
state court proceedings have finally resolved all the
federal questions in the litigation, but state law or
purely factual questions (whether great or small)
remain to be litigated, then the state proceedings
have ‘ended’ within the meaning of Rooker-Feldman
on the federal questions at issue”). A state supreme
court’s interlocutory ruling will therefore trigger the
Rooker-Feldman doctrine’s applicability where such
ruling constitutes the final determination of an issue.
See id. at 28 (relying upon Exxon Mobil to conclude
that Rooker-Feldman prohibited a federal district
court from deciding an issue already finally resolved
by an interlocutory ruling of the Puerto Rico
Supreme Court because “the state court proceedings
ha[d] ended with regard to the sole federal issue”).
Here, state court proceedings ended for Rooker-
Feldman purposes when the Oklahoma Supreme
Court denied Mothershed’s request that it issue a
writ of mandamus halting the Oklahoma bar disci-
plinary proceedings against him. That May 2002
state court ruling finally resolved that the disciplin-
ary proceedings complied with Rule 6.7’s timing
requirements and that Mothershed’s due process
rights therefore were not violated, which represent
the same issues that Mothershed subsequently sought
to relitigate in federal district court.
8528 MOTHERSHED v. JUSTICES
With this amendment, the panel has voted unanimously to
deny the petition for rehearing. The petition for rehearing is
therefore DENIED. No further petitions for rehearing or peti-
tions for rehearing en banc may be filed.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a disbarred attorney may collater-
ally attack his state bar disciplinary proceedings in federal
court.
I
In 1999, the State Bar of Arizona initiated disciplinary pro-
ceedings against George L. Mothershed, an attorney who was
licensed by the Oklahoma Bar Association but who lived and
practiced in Arizona. In response to the disciplinary board’s
allegation that he had unlawfully practiced law in the State,
Mothershed entered a special appearance and moved to dis-
miss the complaint on the ground that he had not received a
summons. The hearing officer denied this motion, and
Mothershed subsequently refused to participate further in the
disciplinary proceedings. A default judgment was entered
against him, and the Supreme Court of Arizona issued an
order censuring Mothershed for engaging in the unauthorized
practice of law. See In re Mothershed, No. SB-01-0076-D,
2001 Ariz. LEXIS 63 (2001).
The Oklahoma Bar Association thereafter initiated its own
disciplinary proceedings against Mothershed. A three-member
trial panel found that he had unlawfully practiced law in Ari-
zona, and the Supreme Court of Oklahoma entered an order
disbarring him. See State ex rel. Okla. Bar Ass’n v. Mother-
shed, 66 P.3d 420, 428 (Okla. 2003).
MOTHERSHED v. JUSTICES 8529
Mothershed responded by filing suit in the United States
District Court for the District of Arizona against the Justices
of the Oklahoma Supreme Court, the three members of the
Oklahoma disciplinary trial panel, and several officials of the
Oklahoma Bar Association (the “Oklahoma Defendants”). He
also sued the Justices of the Arizona Supreme Court, the
Clerk of the Arizona Supreme Court, the members of the Ari-
zona Supreme Court Disciplinary Commission, the hearing
officer in the Arizona disciplinary proceedings, and a state bar
staff counsel (the “Arizona Defendants”). Mothershed alleged
that the Arizona disciplinary proceedings were invalid
because he had not been served with a summons. He con-
tended that the Oklahoma proceedings were likewise defec-
tive because his hearing did not occur between thirty and sixty
days after appointment of the trial panel, as required by Rule
6.7 of the Oklahoma Rules Governing Disciplinary Proceed-
ings.1 Based upon these alleged procedural shortcomings,
Mothershed asserted a claim under 42 U.S.C. § 1983 for due
process and other constitutional violations, as well as state
law tort claims for interference with contractual relationships,
defamation, abuse of process, malicious prosecution, false
light, and intentional infliction of emotional distress.
Mothershed also contended that Arizona Supreme Court
Rules 33(d) and 34,2 which set forth the pro hac vice admis-
1
The rule provides:
The Chief Master or Vice-Chief Master of the Professional
Responsibility Tribunal shall notify the respondent and the Gen-
eral Counsel of the appointment and membership of the Trial
Panel and of the time and place for hearing, which shall not be
less than thirty (30) nor more than sixty (60) days from the date
of appointment of the Trial Panel. Extensions of this period may
be granted by the Chief Master (or the Vice-Chief Master, in case
of the unavailability of the Chief Master) for good cause shown.
2
Rule 33(d) provides that a member in good standing of the bar of
another State may be admitted to appear pro hac vice in Arizona upon
approval by the court hearing the matter. Rule 34 lists the requirements for
admission to the State Bar of Arizona, which include passing the bar
examination and being certified by the Committee on Character and Fit-
ness as possessing good moral character.
8530 MOTHERSHED v. JUSTICES
sion requirements for out-of-state attorneys and the standards
for admission to the State Bar of Arizona, violate Arizonans’
First Amendment right to consult with an attorney and contra-
vene both the Sherman Antitrust Act, 15 U.S.C. § 1, and the
Arizona Uniform State Antitrust Act, ARIZ. REV. STAT. § 44-
1402. Mothershed requested damages totaling more than $330
million and an injunction reinstating his membership in the
Oklahoma Bar Association and prohibiting the defendants
from interfering with his Arizona law practice.
After the defendants moved to dismiss the complaint on
various grounds, the district court dismissed the Oklahoma
defendants due to the absence of personal jurisdiction. The
court later dismissed the claims against the Arizona defen-
dants on the ground that Mothershed was improperly seeking
review of the Arizona bar disciplinary proceedings in a lower
federal court and that subject matter jurisdiction was therefore
absent under the Rooker-Feldman doctrine. Mothershed
timely appealed.
II
In the face of growing judicial uncertainty about the
Rooker-Feldman doctrine’s parameters, the Supreme Court
recently reiterated that its applicability “is confined to cases
of the kind from which the doctrine acquired its name: cases
brought by state-court losers complaining of injuries caused
by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and
rejection of those judgments.” Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. ___, 125 S. Ct. 1517, 1521-22
(2005); see also Rooker v. Fid. Trust Co., 263 U.S. 413, 416
(1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462,
486-87 (1983).
We must therefore decide whether Mothershed’s claims fall
within the Rooker-Feldman doctrine’s narrowed scope.
MOTHERSHED v. JUSTICES 8531
A
[1] Under Rooker-Feldman, lower federal courts are with-
out subject matter jurisdiction to review state court decisions,
and state court litigants may therefore only obtain federal
review by filing a petition for a writ of certiorari in the
Supreme Court of the United States. See Rooker, 263 U.S. at
416 (holding that a federal district court lacked subject matter
jurisdiction over a suit that effectively sought review of an
Indiana state court’s decision); Feldman, 460 U.S. at 486-87(holding that a federal district court was without subject mat-
ter jurisdiction to entertain a challenge to a decision of the
District of Columbia Court of Appeals); see also 28 U.S.C.
§ 1257 (“Final judgments or decrees rendered by the highest
court of a State in which a decision could be had, may be
reviewed by the Supreme Court by writ of certiorari . . . .”).
The doctrine does not, however, prohibit a plaintiff from pre-
senting a generally applicable legal challenge to a state statute
in federal court, even if that statute has previously been
applied against him in state court litigation.
[2] This distinction is well illustrated by the Feldman deci-
sion itself. There, two aspiring attorneys had petitioned the
District of Columbia Court of Appeals for a waiver of a D.C.
bar rule requiring applicants to have graduated from an
accredited law school. Feldman, 460 U.S. at 466. After the
Court of Appeals denied their petitions, the plaintiffs filed suit
in federal district court challenging both the D.C. bar rule’s
general constitutionality and the District of Columbia court’s
decision in their particular cases. Id. at 468, 472. The
Supreme Court held that the district court possessed subject
matter jurisdiction over the former claim but not the latter. Id.
at 486-87. The Court explained:
United States district courts . . . have subject-matter
jurisdiction over general challenges to state bar rules,
promulgated by state courts in nonjudicial proceed-
ings, which do not require review of a final state-
8532 MOTHERSHED v. JUSTICES
court judgment in a particular case. They do not have
jurisdiction, however, over challenges to state-court
decisions in particular cases arising out of judicial
proceedings even if those challenges allege that the
state court’s action was unconstitutional. Review of
those decisions may be had only in this Court.
Id. at 486; see also id. at 482 n.16 (“ ‘[O]rders of a state court
relating to the admission, discipline, and disbarment of mem-
bers of its bar may be reviewed only by the Supreme Court
of the United States on certiorari to the state court, and not by
means of an original action in a lower federal court.’ ” (quot-
ing MacKay v. Nesbett, 412 F.2d 846, 846 (9th Cir. 1969))
(alteration in original)).
Similarly, in Craig v. State Bar of California, 141 F.3d
1353, 1354 (9th Cir. 1998) (per curiam), the plaintiff filed a
§ 1983 claim in federal court against the California bar after
the state supreme court denied review of the California Com-
mittee of Bar Examiners’ refusal to modify the new-attorney
oath to comport with his religious beliefs. We held that sub-
ject matter jurisdiction was absent because the plaintiff was
seeking review of his individual claim and did not present a
general challenge to the California bar’s policy. Id. We rea-
soned that a
plaintiff can challenge the state supreme court’s
denial of bar admission to a particular applicant, the
validity of the state’s rules governing admission, or
both. Lower federal courts lack subject matter juris-
diction over the first type of challenge . . . . In con-
trast, a general attack on a state’s admissions rules
may be heard by lower federal courts because a state
supreme court acts in a nonjudicial capacity when it
promulgates such rules.
Id. (citation omitted).
MOTHERSHED v. JUSTICES 8533
B
[3] Mothershed alleges that the Oklahoma defendants
denied him due process and committed various state law torts
because the Oklahoma bar disciplinary panel did not hold its
hearing within the thirty-to-sixty-day time frame required by
Rule 6.7 of the Rules Governing Disciplinary Proceedings.
Because Mothershed does not contend that Rule 6.7 is sys-
tematically disregarded in all attorney disciplinary proceed-
ings or that the rule is itself facially invalid, he is not asserting
a “general challenge[ ] to [a] state bar rule[ ].” Feldman, 460
U.S. at 486. Rather, Mothershed is alleging that the Oklahoma
defendants failed to apply Rule 6.7 during his own state bar
disciplinary hearing, which constitutes a “challenge[ ] to [a]
state-court decision[ ] in [a] particular case[ ].” Id. Under the
Rooker-Feldman doctrine, the district court lacked subject
matter jurisdiction to review Mothershed’s Oklahoma disci-
plinary proceedings,3 and we therefore affirm the dismissal of
3
In Exxon Mobil, the Supreme Court clarified that the Rooker-Feldman
doctrine is only operative where a federal suit is initiated after state court
proceedings have ended. 125 S. Ct. at 1526 (“In both [Rooker and Feld-
man], the losing party in state court filed suit in federal court after the state
proceedings ended . . . .”). Proceedings end for Rooker-Feldman purposes
when the state courts finally resolve the issue that the federal court plain-
tiff seeks to relitigate in a federal forum, even if other issues remain pend-
ing at the state level. See Federacion de Maestros de Puerto Rico v. Junta
de Relaciones del Trabajo de Puerto Rico, 410 F.3d 17, 25 (1st Cir. 2005)
(“if the state court proceedings have finally resolved all the federal ques-
tions in the litigation, but state law or purely factual questions (whether
great or small) remain to be litigated, then the state proceedings have
‘ended’ within the meaning of Rooker-Feldman on the federal questions
at issue”). A state supreme court’s interlocutory ruling will therefore trig-
ger the Rooker-Feldman doctrine’s applicability where such ruling consti-
tutes the final determination of an issue. See id. at 28 (relying upon Exxon
Mobil to conclude that Rooker-Feldman prohibited a federal district court
from deciding an issue already finally resolved by an interlocutory ruling
of the Puerto Rico Supreme Court because “the state court proceedings
ha[d] ended with regard to the sole federal issue”).
Here, state court proceedings ended for Rooker-Feldman purposes when
the Oklahoma Supreme Court denied Mothershed’s request that it issue a
8534 MOTHERSHED v. JUSTICES
the Oklahoma defendants.4
C
[4] Mothershed’s claims premised upon the alleged absence
of a summons directing him to appear at the Arizona disci-
plinary hearing are likewise barred by the Rooker-Feldman
doctrine because these claims constitute a particularized chal-
lenge to the Arizona disciplinary proceedings’ results. The
district court therefore correctly concluded that it lacked sub-
ject matter jurisdiction over Mothershed’s § 1983 and state
law tort claims against the Arizona defendants, all of which
are premised upon his failure to receive a summons.
D
Mothershed also alleges, however, that the admission
requirements set forth in Arizona Supreme Court Rules 33(d)
and 34 violate Arizonans’ First Amendment right to consult
an attorney of their choosing and contravene both the Sher-
man Antitrust Act and the Arizona Uniform State Antitrust
Act. These claims pertain to the rules’ validity as applied to
all attorneys within Arizona (and, indeed, all Arizona resi-
writ of mandamus halting the Oklahoma bar disciplinary proceedings
against him. That May 2002 state court ruling finally resolved that the
disciplinary proceedings complied with Rule 6.7’s timing requirements
and that Mothershed’s due process rights therefore were not violated,
which represent the same issues that Mothershed subsequently sought to
relitigate in federal district court.
4
The district court’s dismissal of the Oklahoma defendants was prem-
ised upon the absence of personal jurisdiction, not subject matter jurisdic-
tion. Where “subject-matter jurisdiction will involve no arduous inquiry,”
however, “both expedition and sensitivity to state courts’ coequal stature
should impel the federal court to dispose of that issue first.” Ruhrgas AG
v. Marathon Oil Co., 526 U.S. 574, 587-88 (1999). Here, the subject mat-
ter jurisdiction inquiry involves a straightforward application of the
Rooker-Feldman doctrine, and we accordingly adhere to the Supreme
Court’s admonition by relying upon the lack of subject matter jurisdiction
to dismiss the Oklahoma defendants.
MOTHERSHED v. JUSTICES 8535
dents) and thus do not present an individualized challenge to
Mothershed’s bar disciplinary proceedings. Rather—like the
Feldman plaintiffs’ general constitutional attack on the D.C.
bar’s accreditation requirement—these claims constitute a
general challenge to the rules governing admission to the Ari-
zona bar. See Hoover v. Ronwin, 466 U.S. 558, 564-65 (1984)
(entertaining a Sherman Act challenge to the Arizona bar
exam’s grading methodology brought by an attorney who had
earlier contested his own exam results in separate Arizona
state court proceedings).
[5] Because “a general attack on a state’s admissions rules
may be heard by lower federal courts,” Craig, 141 F.3d at
1354, the district court erred by concluding that it lacked sub-
ject matter jurisdiction over Mothershed’s First Amendment
and antitrust claims against the Arizona defendants.
III
Although the district court did indeed possess subject mat-
ter jurisdiction over Mothershed’s general challenges to the
Arizona Supreme Court rules, we “may affirm the district
court’s dismissal on any ground supported by the record.”
Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). We
first consider Mothershed’s antitrust claims and then turn to
his First Amendment challenge.
A
[6] In Parker v. Brown, 317 U.S. 341, 352 (1943), the
Supreme Court held that the Sherman Act does not apply to
certain categories of state action. Later decisions have held
that one of these categories is the regulation of attorneys by
a state supreme court. In Bates v. State Bar of Arizona, 433
U.S. 350, 359 (1977), for example, the plaintiffs alleged that
an Arizona bar disciplinary rule prohibiting advertising by
attorneys violated the Sherman Act. The Court determined
that the Arizona Supreme Court—not the state bar—was the
8536 MOTHERSHED v. JUSTICES
“real party in interest.” Id. at 361. That court had “adopted the
rules,” id., and was “the ultimate body wielding the State’s
power over the practice of law,” id. at 360. Because the adver-
tising restrictions were “compelled by direction of the State
acting as a sovereign,” id. (internal quotation marks omitted),
they were not amenable to a Sherman Act challenge.
Likewise, in Hoover v. Ronwin, 466 U.S. at 565, a plaintiff
who had failed the Arizona bar exam filed suit against the
members of the Committee on Examinations and Admissions
alleging that the manner in which they graded the exam vio-
lated the Sherman Act. Although the individual members of
the Committee were the named defendants, the Court con-
cluded that the suit was barred by Parker’s state-action excep-
tion because the “Arizona Supreme Court necessarily
delegated the administration of the admissions process to the
Committee . . . and retained the sole authority to determine
who should be admitted to the practice of law in Arizona.” Id.
at 573. Accordingly, the conduct being “challenge[d] was in
reality that of the Arizona Supreme Court.” Id.; cf. Goldfarb
v. Va. State Bar, 421 U.S. 773, 790 (1975) (holding that a
minimum fee schedule enforced by the Virginia state bar did
not fall within the Parker exception because the fee schedule
was not mandated by the Virginia Supreme Court and thus it
could not “fairly be said that the State of Virginia through its
Supreme Court Rules required the anticompetitive activi-
ties”).
Here, Mothershed alleges that Arizona Supreme Court
Rules 33(d) and 34 violate the Sherman Act. These claims are
squarely foreclosed by Bates and Hoover. Although Mother-
shed’s claim is nominally against certain state bar officials
and the Supreme Court Justices in their individual capacities,
it is the Supreme Court of Arizona that is the “real party in
interest” because the state bar rules that Mothershed is chal-
lenging are promulgated by the court in its supervisory role
over the practice of law in Arizona. See In re Shannon, 876
P.2d 548, 571 (Ariz. 1994) (“the determination of who shall
MOTHERSHED v. JUSTICES 8537
practice law in Arizona and under what condition is a function
placed by the state constitution in this court” (internal quota-
tion marks omitted)). Rules 33(d) and 34 are therefore “com-
pelled by direction of the State acting as a sovereign,” Bates,
433 U.S. at 360 (internal quotation marks omitted), and are
exempt from Sherman Act challenges.
B
Mothershed also asserts a state antitrust claim under Ari-
zona law. The Arizona Uniform State Antitrust Act “is inter-
preted in conformity with the federal [antitrust laws].”
Arizona v. Maricopa County Med. Soc’y, 643 F.2d 553, 554
n.1 (9th Cir. 1980), rev’d on other grounds, 457 U.S. 332(1982); see also Wedgewood Inv. Corp. v. Int’l Harvester Co.,
613 P.2d 620, 623 (Ariz. Ct. App. 1979) (“The Arizona legis-
lature clearly intended to strive for uniformity between federal
and state antitrust laws.”). Indeed, ARIZ. REV. STAT. § 44-1412
explicitly provides, “It is the intent of the legislature that in
construing [the Uniform State Antitrust Act], the courts may
use as a guide interpretations given by the federal courts to
comparable federal antitrust statutes.” Cf. Bunker’s Glass Co.
v. Pilkington, PLC, 75 P.3d 99, 102, 106 (Ariz. 2003)
(acknowledging the federal antitrust laws’ general “impor-
tance” to the interpretation of the Uniform State Antitrust Act,
while also observing that Arizona courts need not “rigidly fol-
low federal precedent on every issue of antitrust law regard-
less of whether differing concerns and interests exist in the
state and federal systems”).
[7] No court has previously had occasion to consider
whether there exists a state-action exception to the Arizona
antitrust laws. Nevertheless, in light of the Arizona legisla-
ture’s avowed desire to achieve uniformity between the Uni-
form State Antitrust Act and the federal antitrust laws, the
Arizona Supreme Court would most likely follow Bates and
Hoover and hold that its rules governing attorney conduct are
not amenable to state law antitrust challenges. See Assurance
8538 MOTHERSHED v. JUSTICES
Co. of Am. v. Wall & Assocs. LLC of Olympia, 379 F.3d 557,
560 (9th Cir. 2004) (“[W]hen interpreting state law, federal
courts are bound by decisions of the state’s highest court. In
the absence of such a decision, a federal court must predict
how the highest state court would decide the issue . . . .”
(internal quotation marks and citation omitted)). Mother-
shed’s state law antitrust claim therefore fails for the same
reason as its federal counterpart.
C
Mothershed contends that Arizona Supreme Court Rules
33(d) and 34 violate the First Amendment right of Arizonans
to consult with a lawyer of their choosing. Because Mother-
shed does not allege that he has himself suffered a First
Amendment injury, we must first determine whether he has
standing to pursue this claim on behalf of other Arizonans.
1
[8] A “plaintiff generally must assert his own legal rights
and interests, and cannot rest his claim to relief on the legal
rights or interests of third parties.” Warth v. Seldin, 422 U.S.
490, 499 (1975). This limitation is relaxed in the First
Amendment context, however, because “when there is a dan-
ger of chilling free speech, . . . society’s interest in having the
statute challenged” may outweigh the prudential consider-
ations that normally counsel against third-party standing.
Sec’y of State v. Joseph H. Munson Co., 467 U.S. 947, 956
(1984). A plaintiff’s ability to invoke so-called “overbreadth
standing” “has nothing to do with whether or not [his] own
First Amendment rights are at stake” but instead depends
upon whether the plaintiff “satisfies the requirement of
‘injury-in-fact,’ and whether [he] can be expected satisfacto-
rily to frame the issues in the case.” Id. at 958; see also Gos-
pel Missions of Am. v. City of Los Angeles, 328 F.3d 548, 554
(9th Cir. 2003) (“the requirements of ‘overbreadth standing’
MOTHERSHED v. JUSTICES 8539
[are] injury-in-fact and the ability to frame the issues in the
case satisfactorily”).
In Secretary of State v. Joseph H. Munson Co., 467 U.S. at
950, for example, a for-profit company that charged charities
a fee for raising funds on their behalf brought a First Amend-
ment challenge to a Maryland statute that prevented charities
from paying more than 25% of their funds as expenses.
Although the plaintiff was not itself a charity and did not
allege that its own First Amendment rights were infringed, id.
at 955, the Court concluded that the company had overbreadth
standing to pursue the claim. The Court reasoned that, as a
result of the statute, charities were reluctant to contract with
the plaintiff because it charged fees in excess of 25% and that
the plaintiff’s impetus to challenge the statute was therefore
consonant with the charities’ First Amendment interests. Id.
at 958 (“The activity sought to be protected is at the heart of
the business relationship between Munson and its clients, and
Munson’s interests in challenging the statute are completely
consistent with the First Amendment interests of the charities
it represents.”); see also Clark v. City of Lakewood, 259 F.3d
996, 1010-11 (9th Cir. 2001) (holding that the owner of an
adult entertainment establishment had overbreadth standing to
pursue a First Amendment challenge against provisions of an
ordinance that required the employees of such establishments
to obtain a license because the licensing scheme—although
not directly applicable to the owner—threatened his busi-
ness’s viability).
[9] Here, Mothershed alleges that the prohibitions
embodied in Rules 33(d) and 34 have a chilling effect upon
Arizonans’ purported First Amendment right to consult with
out-of-state counsel. Like the plaintiff in Munson, Mothershed
—though not alleging any First Amendment harm to himself
—has incurred a financial injury because these rules prevent
him from practicing law in the State. Mothershed’s violation
of these provisions has also resulted in his being censured by
the Arizona Supreme Court. Moreover, Mothershed has a
8540 MOTHERSHED v. JUSTICES
strong interest in obtaining the invalidation of Rules 33(d) and
34 because he desires to practice law in Arizona without
being admitted to the state bar. Mothershed therefore satisfies
our requirements for overbreadth standing because he has suf-
fered an injury-in-fact and can be expected to pursue the First
Amendment claim vigorously. See id. at 1011 (concluding
that the owner of the adult entertainment establishment could
“satisfactorily frame the issues in the case” because he “ha[d]
a vested interest in having the [licensing] Ordinance over-
turned”).
2
Although the First Amendment’s applicability in the area of
lawyer-client relations is not well-defined, we recognize that
—at least as a general matter—the “right to hire and consult
an attorney is protected by the First Amendment’s guarantee
of freedom of speech, association and petition.” Denius v.
Dunlap, 209 F.3d 944, 953 (7th Cir. 2000); see also United
Mine Workers of Am. v. Ill. State Bar Ass’n, 389 U.S. 217,
221-22 (1967) (holding that a union had a First Amendment
right to employ a salaried attorney to represent members pur-
suing workers’ compensation claims); DeLoach v. Bevers,
922 F.2d 618, 620 (10th Cir. 1990) (“The right to retain and
consult an attorney . . . implicates . . . clearly established First
Amendment rights of association and free speech.”).
While the Supreme Court has acknowledged that the right
to consult with an attorney falls within the First Amendment’s
purview, the Court has also repeatedly emphasized that “the
States have broad power to regulate the practice of law.” Ill.
State Bar Ass’n, 389 U.S. at 222. The Court has explained
that the “interest of the States in regulating lawyers is espe-
cially great since lawyers are essential to the primary govern-
mental function of administering justice, and have historically
been ‘officers of the courts.’ ” Goldfarb, 421 U.S. at 792.
[10] In order to further its substantial interest in regulating
the legal profession, the State of Arizona may institute reason-
MOTHERSHED v. JUSTICES 8541
able time, place, and manner restrictions on Arizonans’ First
Amendment right to consult with an attorney. Time, place,
and manner regulations are reasonable provided that “the
restrictions ‘are justified without reference to the content of
the regulated speech, that they are narrowly tailored to serve
a significant governmental interest, and that they leave open
ample alternative channels for communication of the informa-
tion.’ ” Kuba v. 1-A Agric. Ass’n, 387 F.3d 850, 858 (9th Cir.
2004) (quoting Ward v. Rock Against Racism, 491 U.S. 781,
791 (1989) (internal quotation marks omitted)).
[11] “The principal inquiry in determining content neutral-
ity . . . is whether the government has adopted a regulation of
speech because of disagreement with the message it conveys.
Speech restrictions are content-neutral when they can be justi-
fied without reference to the content of the regulated speech.”
Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037, 1043 (9th
Cir. 2002) (internal quotation marks and citation omitted).
Arizona Supreme Court Rules 33(d) and 34 are content-
neutral because they impose a generally applicable prohibi-
tion on the retention of out-of-state counsel without regard to
the subject matter of the representation. (The rules do not, for
example, prohibit out-of-state counsel from undertaking only
certain categories of representation, such as suits against the
State or against tobacco companies).
[12] A time, place, and manner regulation is narrowly tai-
lored as long as the substantial governmental interest it serves
“would be achieved less effectively absent the regulation and
the regulation achieves its ends without . . . significantly
restricting a substantial quantity of speech that does not create
the same evils.” Galvin v. Hay, 374 F.3d 739, 753 (9th Cir.
2004) (internal quotation marks omitted; alteration in origi-
nal). As already noted, the State of Arizona has a significant
interest in regulating the practice of law within its boundaries,
see Bates, 433 U.S. at 361 (“the regulation of the activities of
the bar is at the core of the State’s power to protect the pub-
lic”), and Supreme Court Rules 33(d) and 34 further that
8542 MOTHERSHED v. JUSTICES
interest by ensuring that attorneys practicing in the State are
qualified and possess a familiarity with Arizona law. The
rules’ narrow tailoring is further evidenced by the fact that
they do not impose a blanket prohibition on the appearance of
out-of-state attorneys in Arizona courts. Rather, they provide
that a qualified out-of-state attorney may be admitted pro hac
vice by an Arizona court.
[13] Lastly, Rules 33(d) and 34 leave open ample alterna-
tive channels through which Arizonans can obtain legal repre-
sentation. Notwithstanding the restrictions on out-of-state
attorneys, Arizonans have access to legal representation from
the thousands of attorneys licensed by the Arizona bar.
[14] Because Arizona Supreme Court Rules 33(d) and 34
are reasonable time, place, and manner regulations of Arizo-
nans’ First Amendment right to retain and consult with a law-
yer, Mothershed’s First Amendment claim fails as a matter of
law.
IV
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.