Michael Kaiser v. Washington State Supreme Court et al.

Opinion

1 2 3

4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 MICHAEL KAISER, CASE NO. 2:26-cv-00114-JHC 8 Plaintiff, ORDER 9 v. 10 WASHINGTON STATE SUPREME 11 COURT et al.,1 12 Defendants. 13 14 I 15 INTRODUCTION 16 This matter comes before the Court on Defendants’ motions to dismiss. Dkt. ## 21 & 23. 17 The Court has considered the materials filed in support of and in opposition to the motions, 18 pertinent portions of the record, and the applicable law. Being fully advised, for the reasons 19 20 21 1 Defendants here, as named by Plaintiff, are: the Washington Supreme Court itself and its 22 individual justices Debra L. Stephens, Charles W. Johnson, Barbara Madsen, Steven C. González, Sheryl Gordon McCloud, Raquel Montoya-Lewis, G. Helen Whitener, Salvador A. Mungia, and Colleen Melody (the Supreme Court Defendants); and the Washington State Bar Association (WSBA) itself and its 23 officers Executive Director Terra Nevitt, Board of Governors President Francis Adewale, Director of Regulatory Services Renata De Carvalho Garcia, Managing Director of Regulatory Services Cathy 24 Biestek, and Director of the Office of Disciplinary Counsel Doug Ende (the WSBA Defendants). 1 below, the Court GRANTS the motions, DISMISSES Plaintiff’s complaint without prejudice, 2 and GRANTS him leave to amend. 3 II

4 BACKGROUND 5 Plaintiff alleges the following in the complaint. He graduated from law school in 2007 6 and applied for admission to the state bar in 2009. Dkt. # 1 ¶¶ 118, 133, 141. He submitted a 7 motion for admission to practice without a character and fitness hearing, which the WSBA’s 8 Character and Fitness Board (the Board) “summarily dismissed” at the beginning of that hearing. 9 Id. ¶¶ 136, 138. At the time, the Board recommended his application for admission be denied. 10 Id. ¶ 161. In Washington state, the state Supreme Court decides on applications for admission 11 upon Board recommendation. See APR 2(a)(4)(B), APR 5(j). If the Board recommends denial, 12 an applicant may request Washington Supreme Court review. APR 24.2(b)(2). Plaintiff does

13 not allege that he sought review of the Board’s recommendation by the Washington Supreme 14 Court. 15 This is Plaintiff’s second lawsuit with similar allegations. In 2020, he filed a complaint 16 against the same Defendants concerning their bar admission practices. Id. ¶ 164. That 17 complaint, as here, broadly challenged the character and fitness assessment and the bar 18 examination. Id. ¶ 164. But after the parties fully briefed the motion to dismiss, Plaintiff 19 voluntarily dismissed the suit. Id. ¶ 170. 20 Plaintiff’s complaint is not organized into causes of action, but it appears that he asserts 21 four groups of facts to support his claims for relief. First, he alleges that the Washington 22 Supreme Court engages in improprieties like the practice of appointing new justices upon the

23 retirement of prior justices. Id. ¶¶ 31–63. Second, he alleges that the WSBA has been involved 24 in controversy and makes allegations regarding several such incidents. Id. ¶¶ 64–99. Third, he 1 alleges that the WSBA’s attorney-discipline methodology is not operating effectively. Id. ¶¶ 2 100–11. Fourth, he alleges that the WSBA’s attorney licensure process suffers from various 3 defects. Id. ¶¶ 112–260. In this section of the complaint, Plaintiff: (1) details the events

4 surrounding his 2009 application, id. ¶¶ 113–62, and 2020 lawsuit, id. ¶¶ 163–70; (2) describes 5 and criticizes the Task Force’s proposal for bar exam alternatives, id. ¶¶ 171–89; (3) indicates he 6 has “decided” to apply for admission once again, though does not allege that he has applied or 7 has any concrete plans to do so, id. ¶¶ 190–201; (4) alleges various problems with WSBA’s 8 evaluation of character and fitness as a precondition to licensure, id. ¶¶ 202–28; and (5) alleges 9 that certain questions on the bar admissions application have an age-discriminatory effect, id. ¶¶ 10 229–60. 11 Plaintiff gestures at several federal and state laws. He invokes the Age Discrimination in 12 Employment Act, 29 U.S.C. § 621 et seq., id. ¶¶ 235, 287–89; the Washington Law Against

13 Discrimination, RCW 49.44.090, 49.60.200, id. ¶¶ 239, 290–92; the Constitution’s Fourteenth 14 Amendment, id. ¶¶ 247, 293; 42 U.S.C. § 1983, id. ¶ 273; and the privileges and immunities 15 clause of Washington’s state constitution, art. 1 § 12, id. ¶ 296. For relief, Plaintiff requests that 16 “the Court appoint a monitor to oversee the WA Supreme Court and WSBA’s regulation of 17 Washington’s legal apparatus[.]” Id. at 69. 18 Defendants now move to dismiss the complaint, contending principally that the complaint 19 fails to invoke federal jurisdiction and fails to state a claim. See Dkt. # 21 (Supreme Court 20 Defendants), Dkt. # 23 (WSBA Defendants). 21 22

23 24 1 III DISCUSSION 2 A. Procedural Standards 3 Federal Rule of Civil Procedure 12(b)(1) governs a motion to dismiss for lack of 4 jurisdiction. “Federal courts are courts of limited jurisdiction and may hear only those cases 5 authorized by federal law.” Ohm v. California Nat. Res. Agency, 2026 WL 95508, at *2 (E.D. 6 Cal. Jan. 13, 2026). The party asserting jurisdiction bears the burden of establishing it. See 7 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). But “[i]f the court 8 determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the 9 action.” Fed R. Civ. P. 12(h)(3). 10 Federal Rule of Civil Procedure 12(b)(6) governs a motion to dismiss for failure to state a 11 claim upon which relief may be granted. When considering such motions, the Court construes 12 the complaint in the light most favorable to the nonmoving party. Livid Holdings Ltd., 416 F.3d 13 940, 946 (9th Cir. 2005). The Court must accept all well-pleaded facts as true and draw all 14 reasonable inferences in favor of the plaintiff. Wyler Summit P’ship v. Turner Broad. Sys., Inc., 15 135 F.3d 658, 661 (9th Cir. 1998). But a court is not “required to accept as true allegations that 16 are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.’” In re 17 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell v. Golden State 18 Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 19 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 20 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 21 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim 22 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 23 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing 24 1 Twombly, 550 U.S. at 556). Dismissal is proper only if the plaintiff has not alleged a 2 “cognizable legal theory” or there is an “absence of sufficient facts alleged to support a 3 cognizable legal theory.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

4 B. Analysis 5 Plaintiff fails to establish standing because he does not sufficiently allege any injury. 6 Absent standing, Plaintiff fails to invoke this Court’s jurisdiction. 7 Article III of the Constitution “confines the federal judicial power to the resolution of 8 ‘Cases’ and ‘Controversies.’” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (citing 9 U.S. Const. art. III. § 2, cl. 1). It “limits the power of the federal courts to decide cases and 10 controversies where plaintiffs can demonstrate a sufficient ‘personal stake’ in the outcome.” 11 Kikkert v. Trump, 2025 WL 2799545, at *2 (W.D. Wash. Oct. 1, 2025) (citing TransUnion, 594 12 U.S. at 423). This personal stake is standing. Id. To establish standing, a plaintiff must show:

13 (i) that they suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) 14 that the injury was likely caused by the defendant; and (iii) that the injury would likely be 15 redressed by judicial relief. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (citations 16 omitted). 17 To the first element, Plaintiff must show an injury-in-fact, which is “an invasion of a 18 legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not 19 conjectural or hypothetical.” Id. at 560 (citation modified). Injury-in-fact is the “first and 20 foremost of standing’s three elements.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) 21 (quotation marks omitted). “‘[A]llegations of possible future injury’ are not sufficient.” Clapper 22 v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (quoting Whitmore v. Arkansas, 495 U.S. 159,

23 158 (1990)). 24 1 Plaintiff does not allege an injury-in-fact. He does not allege that he has applied for 2 admission and been rejected. Instead, he alleges only that he “has decided again to attempt 3 attorney licensure.” Dkt. # 1 ¶ 191. This is the only allegation in the complaint regarding any

4 current application for bar admission. He does not allege that he has applied. By itself, this 5 cannot establish injury, because the claimed injury is admittedly “hypothetical.” Lujan, 504 U.S. 6 at 560. Cf. Davis v. Nahmias, 2025 WL 1144707 *3 (11th Cir. April 18, 2025) (affirming 7 district court order dismissing complaint where formerly licensed attorney, challenging state’s 8 bar admission practices, had not actually reapplied for admission).2 And Plaintiff’s complaints 9 with the succession procedures of justices of the Washington Supreme Court, Dkt. # 1 ¶¶ 33–63, 10 and the WSBA’s supposed controversy and corruption, id. ¶¶ 64–99, are similarly unavailing. 11 He alleges no injury to himself in those succession procedures or in the WSBA’s allegedly 12 notorious conduct. These complaints thus amount to “only a generally available grievance about 13 government” whereby he “seek[s] relief that no more directly and tangibly benefits him than it 14 does the public at large.” Lujan, 504 U.S. at 573–74. 15 Plaintiff says that he may launch a preemptory lawsuit to challenge future state actions, 16 such as an eventual rejection of any bar admission application. Dkt. # 27 at 13, 18–21. He cites 17 Whole Women’s Health v. Jackson, 595 U.S. 30 (2021), but that case did not address how likely 18 a future injury must be to satisfy the requirements of standing. Rather, the petitioners in that 19 case had “plausibly alleged that” the challenge state law had “already had a direct effect on their 20 day-to-day operations.” Id. at 47. Plaintiff also alludes to pre-enforcement injury, whereby he 21 should be permitted to sue to enjoin state enforcement against him. Dkt. # 27 at 18–19. That 22

2 Polk v. State Bar of Nevada, 2025 WL 659353 (D. Nev. Feb. 28, 2025), though not binding on 23 this Court, is distinguishable. In that case, the District of Nevada concluded that an attorney seeking admission to practice in Nevada had standing to sue because he had alleged futility of complying with the 24 Nevada admission rule barring his licensure. Id. at *4–5. Here, Plaintiff has not alleged futility. 1 “injury is the anticipated enforcement of the challenged statute in the future,” Peace Ranch, LLC 2 v. Bonta, 93 F.4th 482, 487 (9th Cir. 2024), but Plaintiff alleges no threatened enforcement 3 action or any law that might be enforced against him. Any eventual recommendation by the

4 WSBA Defendants to deny his admission is not at all like the enforcement of a statute. 5 Thus, the Court must dismiss this matter for lack of subject matter jurisdiction.3 6 C. Leave to Amend 7 Federal Rule of Civil Procedure 15 states that “[t]he court should freely give leave [to 8 amend] when justice so requires,” and there is a strong public policy in favor of permitting 9 amendment. Fed R. Civ. P. 15(a); Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 1999). The 10 Ninth Circuit has even said that Rule 15(a) should be applied with “extreme liberality.” 11

3 Assuming there was subject matter jurisdiction, the Court would likely dismiss this matter based 12 on immunity. Generally, the Eleventh Amendment bars suits by individuals against states against their waiver or consent without an act of Congress abrogating that immunity. See Seminole Tribe of Fla. v. 13 Fla., 517 U.S. 44, 54–55 (1996). Washington state has not waived its Eleventh Amendment immunity. Hagos v. Washington State Dep’t of Corr., 2024 WL 1417759, at *1 (W.D. Wash. Mar. 12, 2024), report 14 and recommendation adopted, 2024 WL 1410633 (W.D. Wash. Apr. 2, 2024) (citing Whiteside v. State of Wash., 534 F. Supp. 774, 778 (E.D. Wash. 1982), RCW 4.92.010). The state Supreme Court and the 15 state’s bar association are both considered arms of the state and thus enjoy that immunity. See Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987) (Superior Court of 16 California is the State for purposes of the Eleventh Amendment); Ginter v. State Bar of Nev., 625 F.2d 829, 830 (9th Cir. 1980) (“[T]he Nevada State Bar Association, as an arm of the state, is not subject to suit under the Eleventh Amendment.”). Plaintiff says that the Eleventh Amendment “does not extend to 17 prospective, non-monetary injunctive or declaratory relief against state officials.” Dkt. # 1 ¶ 268 (citing Quern v. Jordan, 440 U.S. 332, 337 (1979)). But the WSBA as an organization is not a state official but 18 an arm of the state itself. Also, he seeks relief against individual WSBA officers named in the complaint solely in their official capacity. “[A] suit against state officials that is in fact a suit against a State is 19 barred regardless of whether it seeks damages or injunctive relief.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984). 20 Likewise, Plaintiff’s request for a federal monitor to oversee Washington’s admission practices is likely foreclosed by abstention doctrines. The “[f]ederal courts may not entertain actions that seek to 21 impose ‘an ongoing federal audit of state . . . proceedings.’” E.T. v. Cantil-Sakauye, 682 F.3d 1121, 1123 (9th Cir. 2012) (ellipsis in original) (quoting O’Shea v. Littleton, 414 U.S. 488, 500 (1974)). Under the 22 related O’Shea and Younger abstention doctrines, federal courts generally cannot “grant relief that would entail heavy federal interference in such sensitive state activities as administration of the judicial system.” Los Angeles Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 703 (9th Cir. 1992) (citing O’Shea, 414 U.S. 488, inter 23 alia). Bar admission is certainly an element of the “administration of the judicial system.” And an order from this Court imposing a federal monitor would appear to involve “an ongoing federal audit” of a state 24 judicial process against in contravention of the abstention doctrines. 1 Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (per curiam). And it 2 || has said that leave to amend “should be granted more liberally to pro se plaintiffs.” McQuillion 3 v. Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir. 2004). The Ninth Circuit has recently said, 4 even if a complaint is deficient, “we have repeatedly held that ‘a district court should grant leave 5 to amend even if no request to amend the pleading was made, unless it determines that the 6 || pleading could not be cured by the allegation of other facts.” Bacon v. Woodward, 104 F.4th 7 744, 753 (9th Cir. 2024) (citations omitted). Thus, the Court grants Plaintiff leave to amend him 8 complaint. 9 IV CONCLUSION 10 For these reasons, the Court GRANTS Defendants’ motions to dismiss (Dkt. ## 21 & 23)

and DISMISSES the Complaint (Dkt. # 1) without prejudice. The Court GRANTS Plaintiff

3 leave to file an amended complaint, which may be filed on or before June 8, 2026.

4 Dated this 18th day of May, 2026.

15 CJok 4 Chur 16 John H. Chun United States District Judge 17 18 19 20 21 22 23 24