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Nichols v. Alabama State Bar

United States District Court, N.D. Alabama, Southern Division

June 19, 2015

W. DAVID NICHOLS, Plaintiff,
v.
ALABAMA STATE BAR, Defendant.

MEMORANDUM OPINION AND ORDER

WILLIAM M. ACKER, Jr., District Judge.

Before the court is a motion (Doc. 17), filed by plaintiff W. David Nichols, to alter, amend, or vacate this court's order of April 15, 2015 (Doc. 16), which dismissed the above-entitled action. For the reasons stated below, the motion will be denied.

"The only grounds for granting [a Rule 59] motion are newly-discovered evidence or manifest errors of law or fact." Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quoting In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)). The movant "cannot use a Rule 59(e) motion to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment." Michael Linet, Inc. v. Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005).

Nichols advances several arguments in support of his position that the court erred in dismissing his case. Most of these arguments (all except those directly attacking the court's reasoning) could have been raised before the court's entry of final judgment. There is no newly discovered evidence. The court should decline to entertain Nichols's motion but will address his arguments.

A. ASB is a State Agency

Nichols's first argument is that the Eleventh Amendment does not bar his claims against defendant Alabama State Bar ("ASB") because ASB is not a state agency. "The Eleventh Amendment protects the immunity of not only the states, but of state agencies and entities that function as an arm of the state.'" Ross v. Jefferson Cty. Dep't of Health, 701 F.3d 655, 659 (11th Cir. 2012). "In determining whether the Eleventh Amendment provides immunity to a particular entity, this court examines the following factors: (1) how state law defines the entity; (2) what degree of control the state maintains over the entity; (3) where the entity derives its funds; and (4) who is responsible for judgments against the entity." Miccosukee Tribe of Indians v. Fla. State Athletic Comm'n, 226 F.3d 1226, 1231 (11th Cir. 2000). Even though the Eleventh Circuit in Versiglio v. Board of Dental Examiners, 686 F.3d 1290 (11th Cir. 2012), appeared to apply a test focusing almost exclusively on the characterization of the entity by state courts, the court has since Versiglio held that the four-factor test is still the law of the circuit. Walker v. Jefferson Cty. Bd. of Educ., 771 F.3d 748, 754 (11th Cir. 2014). "Although state law is considered, the question whether an entity is an arm of the state is one of federal law." Williams v. Dist. Bd. of Trs. of Edison Cmty. Coll., Fla., 421 F.3d 1190, 1192 (11th Cir. 2005). After consideration of the four factors, the court finds that ASB is an arm of the state of Alabama and thus is entitled to the protections of the Eleventh Amendment.

1. How state law defines ASB

Alabama law does not clearly define ASB's status for immunity purposes. No court decision has directly reached the issue, though both parties cite various cases as supporting their positions. Nichols repeatedly cites Ex parte Griffith, 178 So.2d 169, 174 (Ala. 1965), which states: "Members of the bar of Alabama are members of a private incorporated association." ASB cites Simpson v. Alabama State Bar, 311 So.2d 307 (Ala. 1975), and Board of Commissioners of the Alabama State Bar v. State ex rel. Baxley, 324 So.2d 256, 262 (Ala. 1975), for the proposition that ASB is an "arm of [the Alabama Supreme C]ourt." These statements, however, were made in contexts far removed from ASB's immunity from suit, so they are of limited use. Whether ASB is a state agency for some but not all purposes (the state-officer oath of office in Griffith and the authority to discipline lawyers in Baxley and Simpson ) "is a separate and independent question from whether [ASB i]s a state agency for Eleventh Amendment purposes." Tuveson v. Fla. Governor's Council on Indian Affairs, Inc., 734 F.2d 730, 735 (11th Cir. 1984).

Alabama statutes, while illuminative of ASB's functions, are similarly inconclusive. ASB was created by statute in 1923, Ala. Code § 34-3-40 (1975), as a mandatory bar to which all Alabama lawyers must belong. ASB has authority to regulate the examination and admission of applicants to ASB and the conduct, discipline, and reinstatement of the lawyers it licenses, subject to the approval of the Alabama Supreme Court. Ala. Code § 34-3-43(a) (1975). ASB's funds (from fees and licenses) are deposited into an account within the state treasury. Ala. Code § 34-3-4 (1975). ASB may expend only these funds as budgeted and appropriated by the state legislature. Ala. Code § 34-3-44 (1975).

Because neither Alabama statutes nor caselaw define ASB, the court will look to the test Alabama courts apply to determine whether an entity is a state agency and immune from suit. Under Alabama law, "Whether a lawsuit against a body created by legislative enactment is a suit against the state depends on [1] the character of power delegated to the body, [2] the relation of the body to the state, and [3] the nature of the function performed by the body." Ex parte Bd. of Dental Exam'rs, 102 So.3d 368, 374 (Ala. 2012) (quoting Armory Comm'n v. Staudt, 338 So.2d 991, 993 (Ala. 1980)).

a. Character of power delegated to ASB

This inquiry focuses on the powers and duties delegated to ASB by the state legislature. In Dental Examiners, the court found that the powers and duties delegated to the Dental Board prove that the Dental Board is a state agency. The practice of dentistry "affect[s] the public health." Ala. Code § 34-9-2(a) (1975). The Board of Dentistry has the authority to regulate (1) qualification and licensing of dentists, (2) dental education, and (3) conduct of practicing dentists, including the authority to discipline, Dental Exam'rs, 102 So.3d at 374-77.

ASB is given very similar authority. ASB has power to determine qualifications to practice law in the state, Ala. Code § 34-3-43(a)(1), to examine applicants and certify applicants as qualified, Ala. Code § 34-3-43(a)(2), to regulate the conduct of attorneys and investigate all complaints, Ala. Code § 34-3-43(a)(3), to discipline lawyers, Ala. Code § 34-3-43(a)(5), and to regulate reinstatement of lawyers, Ala. Code § 34-3-43(a)(4). As in Dental Examiners, because the delegated powers are public in nature and would ...


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