Opinion
No. C 03-01922 CRB.
July 3, 2002.
MEMORANDUM AND ORDER
Plaintiff sues California and its attorney general, challenging the constitutionality of California's SLAPP statute. Now before the Court is defendants' motion to dismiss on the grounds of Eleventh Amendment immunity, among other reasons. After carefully considering the papers submitted by the parties, and having had the benefit of oral argument, the motion to dismiss is GRANTED.
BACKGROUND
The underlying background facts of this history are derived from this Court's order in Shalaby v. Jacobowitz, No. 03-0227, 2003 U.S.Dist. LEXIS 6551 at *1-*5 (N.D. Cal. Apr. 11, 2003).
Plaintiff Andrew W. Shalaby ("Shalaby") is a lawyer. The root of the present action originates in Perez v. King, a state case in which he represented the landlord Perezes in an action for unlawful detainer against tenant Carolyn King. King appeared pro per. The case was eventually settled.
The Perezes, with Shalaby as their counsel, subsequently sued lawyers for the Eviction Defense Center ("EDC") in state court, alleging that although King had appeared pro per, EDC lawyers had ghostwritten pleadings on her behalf. The first suit, Perez v. Omura, was brought against EDC lawyer Anne Omura, claiming abuse of process, barratry, fraud, and intentional infliction of emotional distress. The second suit, Perez v. Jacobowitz, was brought against both Omura and a second EDC lawyer, Ira Jacobowitz, claiming violation of California's Business and Professional Code.
These suits were separately dismissed, both dismissals arising from motions brought under California Code of Civil Procedure § 425.16, (often called the "SLAPP statute"), a procedural rule allowing a defendant to move to strike causes of action deemed to be a "Strategic Lawsuit Against Public Participation." The statute defines such "SLAPP suits" as those "arising from any act of [the defendant] in furtherance of the personal right of petition or free speech." Cal. Civ. Proc. Code § 425.16(b)(1) (2003). A defendant who prevails on the motion to strike is awarded attorneys' fees and costs. Id. at § 425.16(c). The Perezes were ordered to pay approximately $31,776 in the dismissal of Perez v. Omura and $17,290 in the dismissal ofPerez v. Jacobowitz.
King (represented by the EDC) then sued the Perezes in state court for breach of the settlement agreement in Perez v. King and for wrongful eviction. The claim was settled, with the Perezes agreeing to pay damages of $75,000 in an exchange for a release of all claims.
The Perezes then sued Shalaby in state court (Perez v. Shalaby) for malpractice regarding his conduct in litigating and precipitating the above cases.
Claiming that the EDC's ghostwriting on behalf of King was actually responsible for the Perezes' damages, Shalaby brought a separate action in this Court against Jacobowitz and Susan Burnett Luten. Shalaby v. Jacobowitz (No. 03-0227 CRB). All of Shalaby's claims for declaratory relief, injunctive relief, and damages were dismissed without leave to amend. Shalaby v. Jacobowitz, 2003 U.S.Dist. LEXIS 6551.
Among Shalaby's claims in Shalaby v. Jacobowitz was a challenge to the constitutionality of section 425.16. Shalaby claimed that the statute could be "applied unconstitutionally to chill or abridge the valid exercise of FIRST AMENDMENT rights of freedom of speech and petition for redress of grievances," and that it violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Compl. at 3-6, Shalaby v. Jacobowitz (No. 03-0227).
Jacobowitz moved to dismiss due to a lack of a sufficient case or controversy. Shalaby argued standing based on both individual injury and injury to the public. With respect to the individual injury, Shalaby argued that the threat of sanctions under section 425.16 deterred him from seeking indemnification from Jacobowitz in the malpractice action. Shalaby v. Jacobowitz 2003 U.S.Dist. LEXIS 6551, at *4. This Court found that:
Plaintiff's claim against Jacobowitz is too attenuated to be justiciable and is unripe. [Plaintiff] has not even filed the anticipated cross-claim, so any exposure to SLAPP sanctions is purely hypothetical. This court may not issue an advisory opinion on a claim that may never arise. Thus, the Court does not have jurisdiction over plaintiff's declaratory relief claim arising out of the possible imposition of SLAPP sanctions in the malpractice claim.Id. at *11.
With respect to the injury to the public, this Court found that "[p]laintiff raises a cognizable claim in asserting that section 425.16 unconstitutionally abridges the right to petition for redress, but the claim does not implicate Jacobowitz. . . . A state has standing to defend the constitutionality of its statute. A private individual does not." Id. (citation omitted).
Current Action
The current case again challenges the constitutionality of section 425.16, this time with the State of California and its attorney general, Bill Lockyer, as defendants. As Shalaby puts it, he "now brings action against the proper party, which is the State of California, through the California Attorney General, Hon. Bill Lockyer." Compl. at 2, 11. 12-14.
With respect to himself, Shalaby claims that section 425.16 "chilled the First Amendment rights of [the Perezes] to petition the Court for redress" and that "but for the mandatory sanctions provision of subsection (c), [the current malpractice suit] would not have resulted." Compl. at ¶ 7. He further claims that the statute generally violates the First Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Id. at ¶¶ 12-17. He seeks ten statements of declaratory relief stating that section 425.16 is facially unconstitutional (which Shalaby labels his "general challenge" and his "overbroad" challenge) and that it is unconstitutional as applied in a variety of situations. See id. at ¶¶ 18-27.
Defendants have brought motions to dismiss under Federal Rule of Civil Procedure 12(b)(1) and Federal Rule of Civil Procedure 12(b)(6), asserting that this Court lacks jurisdiction and that the declaratory relief sought by Shalaby is inappropriate.
DISCUSSION
Because the Court finds that Eleventh Amendment immunity bars this suit, it does not reach the merits of any other grounds raised by defendants in support of their motion.
I. Burden of Proof
Eleventh Amendment immunity is treated as an affirmative defense. See ITSI T.V. Prods., Inc. v. Agric. Ass'ns, 3 F.3d 1289, 1291 (9th Cir. 1993). "Like any other such defense, that which is promised by the Eleventh Amendment must be proved by the party that asserts it and would benefit from its acceptance." Id. Thus the burden here rests with defendants State of California and Attorney General Lockyer.
II. The State of California's Eleventh Amendment Immunity
Defendant State of California cannot be a named party in this case. "[T]he Court long ago held that the Eleventh Amendment bars a citizen from bringing suit against the citizen's own State in federal court, even though the express terms of the Amendment refer only to suits by citizens of another State."Welch v. Tex. Dep't of Highways and Pub. Transp., 483 U.S. 468, 472 (1987) (citing Hans v. Louisiana, 134 U.S. 1, 10 (1890)).
There are two major exceptions to the doctrine that a state may not be a named party. The first is where Congress has "unequivocally expressed its intent to abrogate the immunity . . . pursuant to a valid exercise of [its] power." Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996) (internal quotations omitted). The second occurs when the state grants an explicit waiver of its immunity. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985). Generally, such a waiver of Eleventh Amendment immunity must "unequivocally evidence the state's intention to subject itself to the jurisdiction of the federal court." Hill v. Blind Indus. Servs. of Md., 179 F.3d 754, 758 (9th Cir. 1999). While a defending state may waive its sovereign immunity by its conduct rather than by an express written waiver, such conduct must be unambiguous and "incompatible with an intent to preserve that immunity." Id.
Shalaby makes no attempt to argue that either of these exceptions applies here, nor would such an attempt have any chance of success. The first exception does not apply because 42 U.S.C. § 1983, which allows individuals to bring claims for alleged unconstitutional acts carried out under the color of state law, lacks congressional intent to abrogate Eleventh Amendment immunity. See Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 99 (1984) (citing Quern v. Jordan, 440 U.S. 332, 342 (1979)). The second exception does not apply because there is no evidence of any explicit waiver. There has certainly been no written waiver, and the state's prompt motion to dismiss would preclude any argument that there was any conduct-based waiver.
Shalaby does advance two possible reasons why Eleventh Amendment immunity should not apply in this case: the overbreadth doctrine and the fact that he requests declaratory, rather than injunctive, relief. Pl.'s Mem. of P. A. in Opp'n to Defs.' Mot. to Dismiss at 2, 5 [hereinafter Pl's Mem]. As these arguments could potentially also apply to defendant Lockyer's immunity, they will both be addressed below.
III. Attorney General Lockyer's Eleventh Amendment Immunity
Even where the state itself may not be named as a defendant, it may still be possible to sue an individual state officer in his official capacity for injunctive or declaratory relief under the doctrine announced in Ex Parte Young, 209 U.S. 123 (1908). The idea behind Young is that a state officer may not hide behind the power of the state in committing an unconstitutional act. See id. at 159-60.
Young does not, however, create an indiscriminate exception to the Eleventh Amendment. A plaintiff may not challenge any statute's constitutionality simply by naming some random state officer, rather than the state itself, as the defendant. Instead, Young requires the defendant officer to have "some connection with the enforcement of the act or else [the suit] is merely making him a party as a representative of the State, and thereby attempting to make the State a party." Id. at 157. This connection "must be fairly direct; a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit." Snoeck v. Brussa, 153 F.3d 984, 986 (9th Cir. 1998) (citing L.A. County Bar Assoc. v. Eu, 979 F.2d 697, 704 (9th Cir. 1992)).
Thus, under Young, Eleventh Amendment immunity still shields state officers who are not responsible for the enforcement of the law in question. In Snoeck, for example, plaintiffs wished to lodge complaints with the Nevada Commission on Judicial Discipline based on alleged improper acts by two Nevada state judges. Snoeck. 153 F.3d at 984. As a precondition to filing their complaint, the Commission's procedure required them to sign a confidentiality agreement; violation of the agreement would have subjected plaintiffs to sanctions under Nevada's contempt of court proceedings. Id. at 985. Plaintiffs filed suit against the members of the Commission in federal court "alleging that the contempt threat `chilled' their rights guaranteed under the First and Fourteenth Amendments and Title 42 U.S.C. § 1983; and further that the rules are not only unconstitutionally over broad on their face, but also as applied." Id. at 986. The court found that the Eleventh Amendment barred plaintiff's claims against the Commission members because "the confidentiality rules in the present case include express enforcement provisions in the form of contempt proceedings to be executed by the Nevada Supreme Court, a separate entity from the Commission. Under Nevada law, the Commission has no enforcement power, and therefore, it has no connection to the enforcement of the challenged law as required under Ex Parte Young." Id. at 988.
Other circuits have consistently relied upon Young's requirement that the state officer be connected to enforcement to distinguish statutes establishing criminal liability, for which certain state officers may be held accountable, from those establishing civil liability, for which state officers may not be held accountable. In Summit Med. Assocs. v. Pryor, plaintiffs sued the governor, attorney general, and district attorney of Alabama challenging statutes creating both criminal and civil liability for physicians who performed certain types of abortions. 180 F.3d 1326, 1329-30 (11th Cir. 1999). The court found that the Young exception applied only to the criminal liability portions of the statutes; the Eleventh Amendment barred suing these defendants to challenge the creation of civil liability since the defendants "had no enforcement authority over those specific provisions." Id. at 1329. The Seventh Circuit has arrived at the same conclusion when faced with a very similar abortion statute. See Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999), vacated on other grounds by 530 U.S. 1271 (2000) ("[T]he states' Attorneys General and local prosecutors have nothing to do with civil suits. Relief against the public officials therefore would be pointless even if the civil-liability provisions were problematic."); see also Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) (en banc) (holding that the Eleventh Amendment barred suit against the governor and attorney general of Louisiana to challenge the constitutionality of a statute creating unlimited tort liability for abortion doctors in suits by their patients).
In the present case, defendant Lockyer argues that the Young exception to Eleventh Amendment immunity does not apply to him since "the SLAPP statute is a procedural rule applied by the California courts. Neither the Attorney General nor any other state official `enforces' the SLAPP statute." Mem. of P. A. in Supp. of Defs.' Mot. to Dismiss at 5, 11. 13-15 [hereinafter Defs.' Mem.].
The statute provides, in relevant part, that SLAPP suits "shall be subject to a special motion to strike." Cal. Civ. Proc. Code § 425.16(b)(1) (2003). California law states that a motion to strike may be filed by "any party." Id. at § 435(b)(1). "Parties" to a civil action are the plaintiff and the defendant. See id. at § 408. The outcome of the motion is adjudicated by the court. See id. at § 425.16(b). It is therefore clear that the attorney general plays no role in the enforcement of section 425.16.
As in Snoeck, Shalaby sues a party who is not responsible for the enforcement of the provisions asserted to be unconstitutional. This case is also very similar to the abortion cases in the other circuits. For Eleventh Amendment purposes, a statute creating liability via a procedural motion is analogous to one creating liability via the filing of a complaint: in both circumstances, it is a third party who advances the action and the court that adjudicates it. The same principles that immunized the Commission members in Snoeck and attorneys general in the abortion cases therefore bar suit against defendant Lockyer here.
As mentioned previously, Shalaby raises two arguments that he believes overcome Eleventh Amendment immunity in this case. First, he argues that "the Eleventh Amendment cannot immunize the State of California, or else it would be impossible for the Federal Court to guard the rights of the people from their First Amendment rights." Pl.'s Mem. at 2, 11. 19-22. He contends thatBroadrick v. Oklahoma, 413 U.S. 601 (1973), stands for the proposition that "[t]he Supreme Court finds First Amendment rights to be so quintessential to the U.S. Constitution, that it has repeatedly altered its traditional standing rules" and that it therefore represents an exception to Eleventh Amendment immunity. Pl.'s Mem. at 21-23.
Shalaby's argument confuses standing with Eleventh Amendment immunity. Broadrick relates to the overbreadth doctrine, under which "the Court has altered its traditional rules of standing to permit — in the First Amendment area — attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity."Broadrick, 413 U.S. at 612 (emphasis added).
While the overbreadth doctrine might give a plaintiff standing to sue where he would not otherwise have it, the Eleventh Amendment may nevertheless immunize a defendant in that suit. Were it the case that any plaintiff with standing could sue regardless of a defendant's Eleventh Amendment immunity, such immunity would be completely meaningless-anyone who had sustained injury at the hands of the state could then sue the state. As the previously cited Eleventh Amendment cases show, the Eleventh Amendment has not been construed in such a fashion.
This is not to say that Shalaby does in fact have such standing. Since the Eleventh Amendment immunizes the defendants here, the Court does not reach the issue of whether Shalaby has the standing he claims under the overbreadth doctrine. See Pl.'s Mem. at 3-5 (responding to Defs.' Mem. at 7-8).
Secondly, Shalaby claims an exception to the Eleventh Amendment because "the remedy sought in the present case is not one for injunctive but for declaratory relief" and "[t]his fact distinguishes the present case from those cited by Defendants." Pl.'s Mem. at 5, 11. 21-23. However, a court does not apply a different standard when considering declaratory, rather than injunctive relief. See Greater L.A. Council on Deafness. Inc. v. Zolin, 812 F.2d 1103, 1110 n. 10 (9th Cir. 1987) ("Since the eleventh amendment by its terms bars suits against a state `in law or equity,' our holding [dismissing plaintiffs' damage claims on Eleventh Amendment grounds] necessarily applies also to plaintiffs' claims against the Superior Court for injunctive and declaratory relief.") (emphasis added).
IV. Summary
In essence, Shalaby claims that "[t]he State of California and the Attorney General, as an official representative of the State of California are the necessary and proper parties to this action" simply because "the power to create and enforce a legal code, both civil, and criminal is one of the essential functions of a State." Pl.'s Mem. at 5, 11. 10-12 (internal quotations omitted). Over 100 years ago, the Supreme Court rebutted a similar contention and provided an effective summary of the still-extant doctrine:
If, because they were law officers of the State, a case could be made for the purpose of testing the constitutionality of the statute, by an injunction suit brought against them, then the constitutionality of every act passed by the legislature could be tested by a suit against the Governor and the Attorney General, based upon the theory that the former as the executive of the State was, in a general sense, charged with the execution of all its laws, and the latter, as Attorney General, might represent the State in litigation involving the enforcement of its statutes. That would be a very convenient way for obtaining a speedy judicial determination of questions of constitutional law which may be raised by individuals, but it is a mode which cannot be applied to the States of the Union consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons. If their officers commit acts of trespass or wrong to the citizen, they may be individually proceeded against for such trespasses or wrong . . . [thus] the citizen is not without effective remedy. . . .Fitts v. McGhee, 172 U.S. 516, 530 (1899).
CONCLUSION
For the foregoing reasons, plaintiff's claims against the State of California and its attorney general Bill Lockyer are dismissed without leave to amend.