National Ass'n for the Advancement of Multijurisdiction Practice v. Berch

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL ASSOCIATION FOR THE No. 13-17082

ADVANCEMENT OF

MULTIJURISDICTION PRACTICE , D.C. No.

ALLISON GIRVIN, MARK ANDERSON, 2:12-cv-01724-

MARK KOLMAN, BSB

Plaintiffs-Appellants,

v. OPINION

Hon. REBECCA WHITE BERCH, Chief

Justice, Arizona Supreme Court,

Hon. W. SCOTT BALES, Vice Chief

Justice; Hon. JOHN PELANDER; Hon.

ROBERT M. BRUTINEL,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Bridget S. Bade, Magistrate Judge, Presiding

Argued and Submitted

October 6, 2014—Phoenix, Arizona

Filed December 8, 2014

Before: Dorothy W. Nelson, Barry G. Silverman,

and Milan D. Smith, Jr., Circuit Judges

Opinion by Judge Milan D. Smith, Jr.

2 NAAMJP V. BERCH

SUMMARY*

Civil Rights

The panel affirmed the district court’s summary judgment

in favor of justices of the Arizona Supreme Court in an

action challenging Arizona Supreme Court Rule 34(f), which

describes how experienced attorneys can be admitted on

motion to the State Bar of Arizona.

Rule 34(f) permits admission on motion to the Arizona

Bar for attorneys who are admitted to practice law in states

that permit Arizona attorneys to be admitted to the bars of

those states on a basis equivalent to Arizona’s, but requires

attorneys admitted to practice law in states that do not have

such reciprocal admission rules to take the uniform bar exam

in order to gain admission to the Arizona Bar.

The panel held that plaintiffs established Article III

standing based on injuries suffered by plaintiff Alison Girvin,

a member of the State Bar of California, who took and failed

Arizona’s uniform bar exam and was unable to practice as an

Arizona attorney.

The panel held that plaintiffs failed to establish that the

Arizona Rule is unconstitutional on Fourteenth Amendment,

First Amendment, or Privileges and Immunities Clause

grounds. The panel therefore rejected plaintiffs’ claims that

the Arizona Rule discriminates against attorneys admitted to

the bar in states that do not have reciprocity with Arizona.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

NAAMJP V. BERCH 3

The panel further held that the Arizona Rule (1) does not

favor Arizona’s in-state citizens over out-of-state citizens;

and (2) is a reasonable time, place, and manner restriction

that serves a substantial government interest. The panel held

that any negative impact on interstate commerce stemming

from the Arizona Rule was mitigated by the existence of

alternative means of admission to the Arizona Bar. Finally,

the panel affirmed the district court’s order denying

plaintiffs’ motion to amend their complaint under Fed. R.

Civ. P. 15(a) to join a John Doe plaintiff.

COUNSEL

Joseph R. Giannini (argued), Los Angeles, California, for

Plaintiffs-Appellants.

Eryn M. McCarthy (argued), Assistant Attorney General,

Phoenix, Arizona, for Defendants-Appellees.

Alan B. Morrison (argued), Public Citizen Litigation Group,

Washington, D.C., for Amicus Curiae Public Citizen, Inc.

4 NAAMJP V. BERCH

OPINION

M. SMITH, Circuit Judge:

Plaintiffs-Appellants (Plaintiffs) National Association for

the Advancement of Multijurisdictional Practice (NAAMJP),

Allison S. Girvin, and Mark Anderson filed suit against

justices of the Arizona Supreme Court challenging Arizona

Supreme Court Rule 34(f) (the AOM Rule), which describes

how experienced attorneys can be admitted on motion to the

State Bar of Arizona (Arizona Bar). The AOM Rule permits

admission on motion to the Arizona Bar for attorneys who are

admitted to practice law in states that permit Arizona

attorneys to be admitted to the bars of those states on a basis

equivalent to Arizona’s AOM Rule, but requires attorneys

admitted to practice law in states that do not have such

reciprocal admission rules to take the uniform bar exam

(UBE) in order to gain admission to the Arizona Bar.

Anderson, Girvin, and NAAMJP allege that the AOM Rule

is unconstitutional under the First Amendment, the Dormant

Commerce Clause, and the Privileges and Immunities Clauses

of Article IV and the Fourteenth Amendment.

We hold that the AOM Rule is constitutional, and that the

district court did not err in dismissing Plaintiffs’ claims on

summary judgment, or in denying leave to amend Plaintiffs’

complaint to permit the joinder of John Doe.

FACTUAL AND PROCEDURAL BACKGROUND

NAAMJP is a non-profit corporation whose stated

mission is to improve the legal profession by promoting the

adoption of the American Bar Association’s (ABA)

recommendation for reciprocal bar admission. The ABA

NAAMJP V. BERCH 5

encourages states to permit experienced attorneys to be

admitted to their bars on motion, provided those attorneys are

admitted to the bar in another state.

Allison Girvin is a member of the State Bar of California,

who received a score of 272 on the UBE, one point below the

passing score required by Arizona. Girvin appealed her UBE

score, but she has not received a breakdown of the score from

the Arizona Supreme Court. She has not applied for

admission to the Arizona Bar under the AOM Rule. Girvin

currently lives in Arizona and states that she wishes to

practice law in Arizona.

Mark Anderson is a member of the State Bar of Montana,

who asserts that Arizona’s AOM Rule has restricted him from

moving to Arizona to practice law. Anderson has not taken

the UBE. Like Girvin, Anderson has not applied for

admission to the Arizona Bar pursuant to the AOM Rule.

The Rules of the Arizona Supreme Court provide three

methods of admission to the Arizona Bar: (1) admission by

taking and passing the UBE, (2) admission pursuant to the

AOM Rule, and (3) admission by transfer of a UBE score

from another jurisdiction. Ariz. R. Sup. Ct. 34(a)–(h).

Anderson, Girvin, and NAAMJP challenge the second of

these methods, which provides for admission on motion for

attorneys who “have been admitted by bar examination to

practice law in another jurisdiction allowing for admission of

Arizona lawyers on a basis equivalent to this rule.” Ariz. R.

Sup. Ct. 34(f)(1)(A). This effectively means that Arizona

permits admission on motion to its bar for attorneys admitted

in states having reciprocal admission rules for Arizona-barred

attorneys, but requires that attorneys admitted to practice law

6 NAAMJP V. BERCH

in states that do not have reciprocal admission rules take the

UBE.

On July 1, 2013, the Arizona Supreme Court expanded

Rule 34(f)(1) to permit admission to the Arizona Bar on

motion for some attorneys admitted in non-reciprocal

jurisdictions. Specifically, after July 1, 2013, attorneys

admitted to practice law by bar examination in a non-

reciprocal jurisdiction, but who are subsequently admitted to

practice law on motion in a jurisdiction that has reciprocity

with Arizona, and have actively practiced for five of the last

seven years in that jurisdiction, are eligible for admission in

Arizona under the AOM Rule.

Anderson, Girvin, and NAAMJP brought suit in the

District of Arizona challenging the constitutionality of the

AOM Rule on First Amendment, Fourteenth Amendment,

Dormant Commerce Clause, and Privileges and Immunities

Clause grounds. NAAMJP’s counsel, Joseph Giannini, has

brought challenges to bar admission requirements in several

courts. See Blye v. Kozinski, 466 Fed. App’x. 650 (9th Cir.

2012); Paciulan v. George, 229 F.3d 1226 (9th Cir. 2000);

Giannini v. Real, 911 F.2d 354 (9th Cir. 1990); Giannini v.

Comm. of Bar Exam’rs, 847 F.2d 1434 (9th Cir. 1988); Nat’l

Ass’n for Advancement of Multijurisdiction Practice v.

Gonzales, 211 F. App’x 91 (3d Cir. 2006). Mr. Giannini is

currently subject to a pre-filing order issued in the Northern

District of California requiring him “to pay monetary

sanctions for signing a frivolous complaint, having an

improper purpose, and making scandalous allegations against

various judges and defendants.” Paciulan v. George, 38 F.

Supp. 2d 1128, 1132 (N.D. Cal. 1999) aff’d, 229 F.3d 1226

(9th Cir. 2000).

NAAMJP V. BERCH 7

On August 6, 2013, Plaintiffs filed a motion to join a John

Doe plaintiff. John Doe, an attorney admitted to the State Bar

of Florida by examination, and to the Texas and Tennessee

bars on motion, argues that the amendments to Arizona’s

AOM Rule are unconstitutional. Although Texas and

Tennessee share reciprocity with Arizona, John Doe is

ineligible for admission on motion in Arizona because he has

not actively practiced in either Texas or Tennessee for five of

the last seven years. He alleges he is afraid to disclose his

identity for fear of retaliation.

The district court granted summary judgment to

Defendants-Appellees (Defendants). Although the district

court did not conclusively determine whether Anderson,

Girvin, and NAAMJP had standing, it granted Defendants

summary judgment on the merits on all of Plaintiffs’ claims.

The district court also declined to allow John Doe to join this

action because his challenges did not arise out of the same

transactions or occurrences as those of the remaining

Plaintiffs. Anderson, Girvin, and NAAMJP timely filed this

appeal.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291 and

28 U.S.C. § 1331. We review a grant of summary judgment

de novo. We determine, viewing the evidence in the light

most favorable to the nonmoving party, whether the district

court correctly applied the relevant substantive law and

whether there are any genuine issues of material fact. Smith

v. Clark Cnty. Sch. Dist., 727 F.3d 950, 954 (9th Cir. 2013).

8 NAAMJP V. BERCH

DISCUSSION

I. Standing

We first address whether Anderson, Girvin, and NAAMJP

have standing to challenge the AOM Rule. Plaintiffs assert

that they are injured by Arizona’s AOM Rule. Defendants

respond that this case does not present a justiciable case or

controversy under Article III of the Constitution because

Anderson, Girvin, and NAAMJP lack the requisite injury, and

because their claims do not qualify for the relaxed standing

analysis utilized in First Amendment cases.

A. Article III Standing

To establish Article III standing, Girvin, Anderson or

NAAMJP must show that they suffered a concrete injury, that

there is a causal connection between the injury and

Defendants’ conduct, and that the injury will likely be

redressed by a favorable decision from this court. See Susan

B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014).

Girvin alleges an injury that meets Article III

requirements. She took and failed the UBE. She is currently

working in Scottsdale, Arizona, but is unable to practice as an

Arizona attorney. Although she has not applied to be admitted

to the Arizona Bar pursuant to the AOM Rule, such an

application would be futile because she is a member of the

State Bar of California, which does not have reciprocity with

Arizona. Taniguchi v. Schultz, 303 F.3d 950, 957 (9th Cir.

2002) (“We have consistently held that standing does not

require exercises in futility.”).

NAAMJP V. BERCH 9

Since Girvin establishes Article III standing, an analysis

of Anderson and NAAMJP’s standing is unnecessary. See

California ex rel. Imperial Cnty. Air Pollution Control Dist.

v. U.S. Dep't of the Interior, 767 F.3d 781, 789 (9th Cir.

2014) (“We need not address the standing of each plaintiff if

we conclude that any plaintiff has standing.”) (citing Nat'l

Ass'n of Optometrists & Opticians v. Brown, 567 F.3d 521,

523 (9th Cir. 2009)).

B. First Amendment Standing

Because an analysis of Girvin and Anderson’s First

Amendment standing requires us to delve into the merits of

their claims, it is sufficient to note at this point of our opinion

that the AOM Rule does not chill speech, nor does it infringe

on attorneys’ rights to be present in court and express

themselves. Even if attorneys are ineligible to be admitted in

Arizona on motion, they may still gain admission by passing

the UBE. The presence of alternative means to gain

admission limits the amount of speech that might otherwise

be restricted by the AOM Rule, and suggests that Anderson

does not have First Amendment standing.

NAAMJP does not have First Amendment standing.

NAAMJP argues that it possesses First Amendment standing

based on Citizens United v. Federal Election Commission,

558 U.S. 310 (2010). NAAMJP’s argument seems to be that

since Citizens United recognizes that corporate organizations

have certain First Amendment rights, NAAMJP does as well.

However, even if NAAMJP enjoys First Amendment rights

pursuant to Citizens United, NAAMJP is not claiming that its

political speech is restricted. Rather, NAAMJP claims that the

AOM Rule restricts the speech of its members, something its

members cannot prove.

10 NAAMJP V. BERCH

II. Fourteenth Amendment Equal Protection Clause

Since Girvin has established Article III standing, and we

must consider the merits of Girvin and Anderson’s claims in

order to fully evaluate their First Amendment standing, we

now proceed with a consideration of the merits of Plaintiffs’

claims. Plaintiffs argue, first, that the AOM Rule

discriminates against attorneys admitted to the bar in states

that do not have reciprocity with Arizona, and therefore, that

the Rule violates the Equal Protection Clause of the

Fourteenth Amendment.

Since the AOM Rule does not disadvantage a suspect

class or infringe on a fundamental right, the Rule is subject to

rational basis review. See Lupert v. Cal. State Bar, 761 F.2d

1325, 1328 (9th Cir. 1985) (“State and federal courts

generally have subjected state bar admission restrictions to

mere rational basis analysis.”). “To survive rational basis

review, [the AOM Rule] must be ‘rationally related to a

legitimate state interest.’” Arizona Dream Act Coal. v.

Brewer, 757 F.3d 1053, 1065 (9th Cir. 2014) (quoting City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)).

The AOM Rule serves two legitimate state purposes.

First, the AOM Rule helps Arizona regulate its bar: “The

Supreme Court is extremely deferential to legislative

classifications in actions challenging regulation of licensed

professions.” Lupert, 761 F.2d at 1328. Moreover, by

honoring reciprocal bar requirements, the state of Arizona

helps to ensure that its attorneys are treated equally in other

states. States that share reciprocity with Arizona will likely

continue to admit Arizona-barred attorneys on motion

because members of the bar in those states are eligible for

reciprocal privileges in Arizona.

NAAMJP V. BERCH 11

The AOM Rule serves these purposes without being

unduly restrictive. Attorneys seeking admission in Arizona

have alternative means to obtain Arizona Bar membership,

namely by passing the UBE. Thus, we conclude that the

AOM Rule does not violate Plaintiffs’ rights under the

Fourteenth Amendment’s Equal Protection Clause.

III. Privileges and Immunities Clause, Article IV,

Section 2

Plaintiffs next argue that the AOM Rule deprives them of

a privilege protected by Article IV, Section 2 of the U.S.

Constitution; namely, the right to practice law. In Supreme

Court of New Hampshire v. Piper, the Supreme Court held

that the practice of law is a fundamental right under the

Privileges and Immunities Clause because it is “important to

the national economy” and because it “has a noncommercial

role and duty.” 470 U.S. 274, 281 (1985).

We conclude that Arizona’s AOM Rule does not

contravene Article IV, Section 2's Privileges and Immunities

Clause because it does not favor Arizona’s in-state citizens

over out-of-state citizens. The purpose of the Privilege and

Immunities Clause is to prevent “a state from discriminating

against citizens of other states in favor of its own.” Hague v.

Comm. for Indus. Org., 307 U.S. 496, 511 (1939). The AOM

Rule is neutral: the State of Arizona imposes the same bar

admission requirements on its own citizens as it does on

citizens of other states. If a citizen of Arizona is admitted to

the bar in a state that does not share reciprocity with Arizona,

then the attorney is not eligible to be admitted to the Arizona

Bar on motion, irrespective of the attorney’s residency or

citizenship status.

12 NAAMJP V. BERCH

The cases cited by Plaintiffs stand only for the proposition

that bar admission rules that impose residency requirements

on bar applicants violate the Privileges and Immunities

Clause. See Piper, 470 U.S. at 275 (resident of Vermont

challenging New Hampshire’s limit of bar admission to New

Hampshire residents); Sup Ct. of Va. v. Friedman, 487 U.S.

59, 61 (1988) (resident of Illinois challenging Virginia’s limit

of bar admission to Virginia residents). The AOM Rule, on

the other hand, relies solely on state of bar admission, and

applies equally to residents and non-residents of Arizona.

Even if Arizona’s AOM Rule did infringe on a right

protected by the Privileges and Immunities Clause, the Rule

is closely related to advancing a substantial state interest. See

Friedman, 467 U.S. at 65. As noted supra, the state of

Arizona has a considerable interest in regulating its state bar

and in ensuring that attorneys licensed in Arizona will be

treated equally in states having reciprocity with Arizona.

Accordingly, the AOM Rule does not violate the Privileges

and Immunities Clause, Article IV, Section 2.

IV. Privileges and Immunities Clause, Fourteenth

Amendment

Plaintiffs also argue that the AOM Rule deprives them of

a fundamental right protected by the Privileges and

Immunities Clause of the Fourteenth Amendment. The

Supreme Court, however, has made clear that the Privileges

and Immunities Clause of the Fourteenth Amendment only

protects those rights accruing from citizenship of the United

States, Slaughter-House Cases, 83 U.S. 36, 77 (1872), and the

right to practice law is not one of those rights. See Paciulan

v. George, 229 F.3d 1226, 1229 (9th Cir. 2000) (“The courts

and legal commentators have interpreted the [Slaughter-

NAAMJP V. BERCH 13

House] decision as rendering the Clause essentially

nugatory.”).

Plaintiffs seem to argue that the AOM Rule burdens their

right to travel to Arizona from non-reciprocal states. The

Fourteenth Amendment Privileges and Immunities Clause

does recognize that travelers becoming permanent residents

of a new state have “the right to be treated like other citizens

of that State.” Saenz v. Roe, 526 U.S. 489, 500 (1999). In this

case that right is not infringed because the AOM Rule treats

non-state residents the same way as it treats residents of

Arizona. In Saenz, by contrast, California discriminated on

the basis of residency by limiting welfare benefits during a

recipient’s first year of California residency to the amount

that the recipient would have received in the state of his prior

residence. Id. at 492.

V. First Amendment Right to Free Speech

Plaintiffs present several arguments concerning the First

Amendment right to free speech, including a claim that the

AOM Rule chills speech by excluding lawyers from

practicing in the state, that the AOM Rule is a prior restraint

on speech, and that the AOM Rule constitutes content and

viewpoint discrimination.

Plaintiffs’ arguments on First Amendment free speech

grounds mistake the appropriate First Amendment framework

for analyzing the AOM Rule. We consider bar admission

restrictions to be time, place, and manner restrictions on

speech. See Mothershed v. Justices of Sup. Ct., 410 F.3d 602,

611 (9th Cir. 2005) (“In order to further its substantial interest

in regulating the legal profession, the State of Arizona may

institute reasonable time, place, and manner restrictions on

14 NAAMJP V. BERCH

Arizonans’ First Amendment right to consult with an

attorney.”). As such, the AOM Rule must be “narrowly

tailored to a substantial governmental interest” and “leave

open ample alternative channels for communication of the

information.” Id. “A time, place, and manner restriction is

narrowly tailored 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.’” Id. at 612 (quoting Galvin v.

Hay, 374 F.3d 739, 753 (9th Cir. 2004)).

We hold that the AOM Rule is a reasonable time, place,

and manner restriction. Arizona is regulating the practice of

law, and such regulation is a substantial government interest.

See id. at 611. Arizona also grants attorneys the option to pass

the UBE to gain admission to its bar, which reduces the

quantity of speech that the AOM Rule might otherwise

restrict. See id. at 612.

Girvin and Anderson thus lack standing under the relaxed

standing analysis in First Amendment cases, which permits

plaintiffs to challenge a statute whose very existence chills

expression, even if the plaintiffs have not suffered a concrete

injury. See Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).

VI. First Amendment Right to Association and Right

to Petition

Plaintiffs next argue that Arizona’s AOM Rule abridges

their freedom to associate with non-reciprocal states, and

NAAMJP V. BERCH 15

forces attorneys to associate with reciprocal states.1 This is an

attenuated reading of the First Amendment right to associate,

which only encompasses the “‘right to associate with others

in pursuit of a wide variety of political, social, economic,

educational, religious, and cultural ends.’” Boy Scouts of Am.

v. Dale, 530 U.S. 640, 647 (2000) (quoting Roberts v. U.S.

Jaycees, 468 U.S. 609, 622 (1984)). Arizona attorneys and

non-Arizona attorneys are free to associate with attorneys

who are members of the bars of other states, whether these

other states enjoy reciprocity with Arizona or not. Moreover,

the AOM Rule provides bar applicants alternative means for

gaining membership in the Arizona Bar. The presence of

these alternative means significantly decreases any obstacles

to the freedom to associate that might otherwise result from

the AOM Rule.

A parallel response addresses Plaintiffs’ claims on First

Amendment Petition Clause grounds. “[T]he Petition Clause

protects the right of individuals to appeal to courts and other

forums established by the government for resolution of legal

disputes.” Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct.

2488, 2494 (2011). The AOM Rule ultimately does not deny

Appellants meaningful access to the courts. As long as

attorneys are admitted under the AOM Rule, or pass the UBE,

1

We summarily dismissed the same line of reasoning in a memorandum

disposition in 2010. In Gordon v. State Bar of California, a California bar

applicant challenged on freedom of association grounds California’s

requirement that he attend an ABA-accredited law school. 369 F. App’x

833, 835 (9th Cir. 2010). We concluded that “[t]he district court properly

dismissed Gordon’s First Amendment claim because attending an ABA-

accredited school is not the only path for qualifying for the California state

bar examination and Gordon is not deprived of his right not to associate

with an ABA-accredited school.” Id.

16 NAAMJP V. BERCH

they may still practice in Arizona courts. See Paciulan v.

George, 229 F.3d 1226, 1230 (9th Cir. 2000).

VII. Dormant Commerce Clause

The Commerce Clause of the U.S. Constitution, Article I,

Section 8, prohibits states from discriminating against

interstate commerce, and bars state regulations that, although

facially nondiscriminatory, unduly burden interstate

commerce. Nat’l Ass’n of Optometrists & Opticians v.

Harris, 682 F.3d 1144, 1148 (9th Cir. 2012).

“Although the Constitution does not in terms limit the

power of States to regulate commerce, [the Supreme Court

has] long interpreted the Commerce Clause as an implicit

restraint on state authority, even in the absence of a

conflicting federal statute.” United Haulers Ass’n, Inc. v.

Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330,

338 (2007). When the Court thus construes the Commerce

Clause, the Clause is often referred to as the Dormant

Commence Clause. Anderson, Girvin, and NAAMJP argue

that the AOM Rule violates the Dormant Commerce Clause

because it disqualifies attorneys from bar admission based on

the states where they were licensed, which in turn prevents

those attorneys from moving to and practicing in Arizona. As

with their other claims, Plaintiffs’ claims on Dormant

Commerce Clause grounds are without merit.

Like the Privileges and Immunities Clause, Article IV,

Section 2, the Dormant Commerce clause is intended to limit

economic protectionism by states, i.e., “regulatory measures

designed to benefit in-state economic interests by burdening

out-of-state competitors.” New Energy Co. of Ind. v.

Limbach, 486 U.S. 269, 273 (1988). “The central rationale for

NAAMJP V. BERCH 17

the rule against discrimination is to prohibit state or

municipal laws whose object is local economic protectionism,

laws that would excite those jealousies and retaliatory

measures the Constitution was designed to prevent.” C & A

Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383, 390

(1994).

Where a state statute or regulation burdens interstate

commerce, we weigh the burden against the police power of

the state. See Conservation Force, Inc. v. Manning, 301 F.3d

985, 993 n.7 (9th Cir. 2002). When the statute or regulation

“even-handedly . . . effectuate[s] a legitimate local public

interest, and its effects on interstate commerce are only

incidental, it will be upheld unless the burden imposed on

such commerce is clearly excessive in relation to the putative

local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142

(1970).

As noted in our analysis of Plaintiffs’ Privileges and

Immunities Clause arguments, the AOM Rule does not

discriminate against out-of-state interests and favor in-state

interests. Arizona requires the same of its citizens as it does

citizens of other states. The AOM Rule also arguably

promotes some commerce because it encourages other state

jurisdictions to reciprocally recognize the professional license

held by Arizona attorneys who can then relocate to other

states, and practice there. Even if the AOM Rule were

discriminatory, however, a state can legitimately regulate the

practice of law for public protection purposes. Cf.

Mothershed v. Justices of Sup. Ct., 410 F.3d 602, 611 (9th

Cir. 2005)(finding that a state has a substantial interest in

regulating bar requirements).

18 NAAMJP V. BERCH

Any negative impact on interstate commerce stemming

from the AOM Rule is further mitigated by the existence of

alternative means of admission to the Arizona Bar. If an

attorney is not eligible for admission to the bar under the

AOM Rule, she can still take the UBE and be admitted to

practice in Arizona. In Scariano v. Justices of Supreme Court

of Indiana, the Seventh Circuit considered a Dormant

Commerce Clause challenge to Indiana’s rule that an out-of-

state practitioner can only be admitted to practice before its

bar on motion if they practice “predominantly” in Indiana for

a period of five years. 38 F.3d 920, 923 (7th Cir. 1994). The

Seventh Circuit concluded that this requirement did not

burden commerce because “any discriminatory effects are

mitigated by offering the bar exam as an alternative means of

admission.” Id. at 925–26. We are persuaded by the Seventh

Circuit’s reasoning, and apply the same rationale to Plaintiffs’

Dormant Commerce Clause challenge to Arizona’s AOM

Rule.

The Supreme Court cases relied on by amicus curiae

Public Citizen are inapposite. These cases find violations of

the Dormant Commerce Clause where a state completely

barred commerce based on a lack of reciprocity, and did not

provide alternative means for out-of-state businesses to sell

commodities in the state. See Sporhase v. Nebraska, 458 U.S.

941, 957 (1982) (“[T]he reciprocity provision operates as an

explicit barrier to commerce between the two States.”); Great

Atl. & Pac. Tea Co. v. Cottrell, 424 U.S. 366, 377 (1976). In

the one case cited by amicus curiae in which a state did not

completely bar commerce, “the out-of-state product [was]

placed at a substantial commercial disadvantage through

discriminatory tax treatment.” Limbach, 486 U.S. at 275. The

cited cases differ from the present case because attorneys

from non-reciprocal states are not categorically denied

NAAMJP V. BERCH 19

admission to the Arizona Bar, nor are they placed at a

significant economic disadvantage by the AOM Rule.

Attorneys barred in non-reciprocal states still have the option

to take the Arizona UBE to gain admission to the Arizona

Bar.

VIII. Intervention of John Doe Plaintiff

During the pending litigation in district court, Plaintiffs

filed a motion to amend their complaint under Federal Rule

of Civil Procedure 15(a) to join a John Doe plaintiff. The

district court denied the motion. We review the denial of a

motion for leave to amend under the deferential abuse of

discretion standard and will not revisit the district court’s

decision denying Plaintiff’s motion. Bowles v. Reade,

198 F.3d 752, 757 (9th Cir. 1999).

We conclude that the district court did not err in finding

that John Doe, an attorney admitted to the bar in Florida and

admitted to practice on motion in Texas and Tennessee, was

challenging a separate provision of law that did not arise out

of the same transaction or occurrences claimed by Plaintiffs

in their complaint. Fed. R. Civ. P. 20(a)(1)(A) (“Persons may

join in one action as plaintiffs if: . . . they assert [a] right to

relief . . . with respect to or arising out of the same

transaction, occurrence, or series of transactions or

occurrences.”).

IX. Conclusion

The district court correctly granted summary judgment to

the justices of the Arizona Supreme Court. Although

Plaintiffs can establish Article III standing based on injuries

suffered by Girvin, Plaintiffs fail to establish that the AOM

20 NAAMJP V. BERCH

Rule is unconstitutional on First Amendment, Fourteenth

Amendment, or Privileges and Immunities Clause Grounds.

We affirm the decision of the district court. All outstanding

motions filed by Plaintiffs-Appellants and Defendants-

Appellees are denied. Each party shall bear its own costs on

appeal.

AFFIRMED.