Philip Kay v. State Bar of California , 379 F. App'x 631 ( 2010 )

FILED
NOT FOR PUBLICATION MAY 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PHILIP E. KAY; et al., No. 09-16300
Plaintiffs - Appellants, D.C. No. 3:09-cv-01135-PJH
v.
MEMORANDUM *
STATE BAR OF CALIFORNIA, a public
corporation; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted May 14, 2010 **
San Francisco, California
Before: SILVERMAN, FISHER, and M. SMITH, Circuit Judges.
Plaintiff-Appellant Philip Kay is a California lawyer facing charges in the
State Bar Court for numerous counts of professional misconduct. Kay, along with
his clients Lindsay Marcisz, Blair Pollastrini, and Jessica Pollastrini, filed suit in
*
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).
federal court seeking an injunction against the State Bar Court proceedings. As the
facts and procedural history are familiar to the parties, we do not recite them here
except as necessary to explain our decision. This court has jurisdiction under 28
U.S.C. § 1291. We affirm.
The district court properly abstained from exercising its jurisdiction under
the principles of Younger v. Harris, 401 U.S. 37 (1971). Plaintiffs seek to enjoin
an ongoing state bar proceeding that “implicate[s] important state interests,”
Canatella v. California, 404 F.3d 1106, 1110 (9th Cir. 2005), and they can raise
their federal constitutional claims in the California Supreme Court, Hirsh v.
Justices of the Supreme Court of Cal., 67 F.3d 708, 713 (9th Cir. 1995) (per
curiam).
Plaintiffs have failed to demonstrate that this case falls within the exception
to Younger for instances of “bad faith, harassment, or some other extraordinary
circumstance.” San Jose Silicon Valley Chamber of Commerce Political Action
Comm. v. City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008) (internal citations
and quotation marks omitted). Although Plaintiffs present a litany of purported
examples of the State Bar’s bias, the record shows that each of these claims is
exaggerated, taken out of context, or otherwise without merit. Plaintiffs have also
failed to show that the prosecution was brought “without a reasonable expectation
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of obtaining a valid conviction,” Kugler v. Helfant, 421 U.S. 117, 124 n.6 (1975),
or to discourage the exercise of protected rights, Cameron v. Johnson, 390 U.S.
611, 619 (1968). To the contrary, the State Bar Court Notice of Disciplinary
Charges spans 129 pages and describes in great detail many alleged instances of
professional misconduct.
AFFIRMED.
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