News Releases

Ninth Circuit Decision Confirms State Bar’s Sovereign Immunity

In a ruling issued on December 6, 2023, the Ninth Circuit’s en banc panel affirms the State Bar’s sovereign immunity as an arm of the state under the Eleventh Amendment to the U.S. Constitution.   

In the case of Kohn v. State Bar of California (Case No. 20-17316), the Ninth Circuit sitting en banc examined whether the State Bar should be considered an “arm of the state” entitled to the same sovereign immunity protections afforded to the state itself. In a majority opinion authored by the Honorable John B. Owens, the court affirmed that the State Bar does indeed share in California’s sovereign immunity. Sovereign immunity protects the State Bar from suit in federal court except under certain circumstances, such as where immunity has been waived, where Congress has validly abrogated immunity, or in some instances, where the suit seeks only prospective injunctive relief.   

Notably, the Ninth Circuit adopted the three-factor test proposed by the State Bar for evaluating a public entity’s entitlement to sovereign immunity as an arm of the state. This test, which is also used by the U.S. Court of Appeals for the D.C. Circuit, examines: (1) the state’s intent regarding the entity’s status; (2) the state’s control over the entity; and (3) the entity’s effects on the state treasury. This test replaces the Ninth Circuit’s prior five-factor test for examining arm-of-the state status, which was set forth in Mitchell v. Los Angeles Community College District, 861 F.2d 198 (9th Cir. 1988).  

Applying the new three-factor test, the en banc court held the State Bar to be an arm of the state of California, for reasons including its status as the administrative arm of the Supreme Court of California for purposes of attorney admissions and discipline.   

“We welcome the court’s ruling reaffirming the longstanding holding that the State Bar of California is entitled to sovereign immunity under the Eleventh Amendment to the U.S. Constitution,” said Ellin Davtyan, State Bar General Counsel. “We are also pleased that the en banc court adopted the State Bar’s proposed test for evaluating whether a public entity is an arm of the state. We believe that this new test is consistent with Supreme Court jurisprudence in this area and will be useful to litigants and courts examining whether a particular public entity is an arm of the state in future cases. We respectfully await the three-judge panel’s ruling on the remaining issues in this appeal.” 

Now that the en banc panel has resolved the sovereign immunity issue, the case will return to a three-judge panel of the Ninth Circuit for consideration of the remaining issues on appeal, including whether Congress validly abrogated sovereign immunity as to Americans with Disabilities Act claims such as Kohn’s, and whether Kohn has valid claims against the State Bar under Section 504 of the Rehabilitation Act or California’s Unruh Act. The State Bar seeks reaffirmance of the district court’s opinion on all of these legal issues.  

Brady Dewar, Assistant General Counsel in the Office of General Counsel, argued on behalf of the State Bar. Additional Office of General Counsel attorneys representing the State Bar in this appeal are Rita Himes, Jean Krasilnikoff, Kirsten Galler, Robert Retana, and Ellin Davtyan. 

Please see the Ninth Circuit opinion. 

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