Unpublished Disposition, 923 F.2d 861 (9th Cir. 1989)

No. 89-55675.

United States Court of Appeals, Ninth Circuit.

Before BEEZER and TROTT, Circuit Judges, and CROCKER,^*  District Judge.

MEMORANDUM^** 

The district court abstained from enjoining the attorney disciplinary proceedings that were pending before the State Bar Court of California against Alvaader Frazier. Frazier appeals the district court's denial of her request for preliminary injunction and its sua sponte abstention and dismissal under Younger v. Harris. We affirm.

Frazier, an African-American woman, was admitted to the practice of law in California on December 3, 1982. Shortly thereafter, she opened a general practice law office in South Central Los Angeles, as a sole practitioner. The majority of her clients were Black and Latino, low income individuals with problems in the areas of housing, public benefits, family matters, and criminal law.

From December 1982 to May 1985, Frazier was retained by nearly 500 clients. In May 1985, Frazier closed her practice because of a family crisis. She notified the State Bar of California (State Bar) and attempted to inform her clients of the closing. She also attempted to provide her clients with names of attorneys who would be willing to accept employment as successor counsel.

On August 11, 1988, the Office of Trial Counsel of the State Bar commenced a formal disciplinary hearing against Frazier in the State Bar Court. The Notice to Show Cause contained fifteen counts covering allegations that Frazier had failed to perform, misappropriated moneys and abandoned clients.

From August 1988 to late April 1989, various pretrial proceedings took place in the State Bar's disciplinary proceeding against Frazier. It was during this pretrial period that Frazier's claim that she is the subject of a racially based, bad faith, selective prosecution first surfaced.

In March 1989, Frazier sought discovery from the State Bar on the racial and gender breakdown of all members against whom disciplinary proceedings had been filed. She also requested similar statistical data about members against whom charges were dropped, and about referees who were appointed to take part in the disciplinary proceedings.

Frazier states that she was denied this crucial discovery. The State Bar states that she was provided with all information, to the extent that it was available, but that the State Bar does not keep the kind of records that Frazier was seeking.

On April 28, 1989, Frazier filed an action in federal court requesting declaratory and injunctive relief in the form of a preliminary injunction enjoining the State Bar from proceeding in her disciplinary action or a preliminary injunction staying the disciplinary proceedings until the California Supreme Court had entertained a petition from Frazier for review of her constitutional claims.

On May 5, 1989, the district court heard Frazier's application for a Temporary Restraining Order. The district court denied the application and decided to dismiss Frazier's action under the Younger abstention doctrine. The court held that Frazier's rights were adequately protected and that there were no extraordinary circumstances or proven bias that would preclude the court from abstaining. On May 12, 1989, a written order was filed confirming the court's earlier ruling at the May 5th hearing. The district court's order was entered on May 18, 1989, and Frazier timely appealed.

We have jurisdiction under 28 U.S.C. § 1291. Abstentions on the basis of Younger v. Harris, 401 U.S. 37 (1971), are reviewed de novo. Partington v. Gedan, 880 F.2d 116, 120 (9th Cir. 1989). Our review of the district court's abstention is limited to the record before the district court at the time of the hearing on Frazier's motion for a Temporary Restraining Order.

In Younger, the Supreme Court noted Congress' demonstrated intent to protect state court proceedings from federal intervention. 402 U.S. at 43. This intent is spelled out in 28 U.S.C. § 2283 (1988), which provides that:

A court of the United States may not grant an injunction to stay proceedings in a State Court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.

The Younger Court also noted that besides the three narrow exceptions established by Congress, there is only one judicial exception to the rule against enjoining a state court proceeding. The judicial exception exists when a person can show that he will suffer irreparable damages if his prosecution in state court is not enjoined. 402 U.S. at 43.

In Middlesex County Ethics Comm. v. Garden State Bar Assoc., 457 U.S. 423 (1982), the Supreme Court held that Younger abstention applies to pending state bar disciplinary proceedings. The Middlesex Court stated that the pertinent inquiry in reviewing state proceedings, such as the State Bar disciplinary proceedings brought against Frazier, is the question whether the proceedings provide an adequate basis for raising constitutional claims. Id. at 432.

Frazier applied for an injunction against the State Bar on the ground that she was being blocked in the disciplinary proceedings from presenting her constitutional claims of racial discrimination. Frazier does not contend that California law fails to provide for review of any findings or recommendations that call for disciplinary action. She asserts rather that the actions of the State Bar in her proceeding demonstrates that she was precluded from raising her constitutional claims. She states that the denial of her discovery requests defeated her attempts to develop a case of systematic bias based on race and gender.

In Partington v. Gedan, we held that under Younger abstention, "even if a federal plaintiff cannot raise his constitutional claims in state administrative proceedings that implicate important state interests, his ability to raise the claims via state judicial review of the administrative proceedings suffices." 880 F.2d at 124. The fact that Frazier may have been frustrated in her initial attempts to raise her constitutional claim of discrimination did not create an exception to Younger.

Nor would the California Supreme Court have to take Frazier's discovery issues on interlocutory appeal. Partington requires only that Frazier have an opportunity for state judicial review. The California disciplinary proceedings provide for such a review. See Cal. Bus. & Prof. Code Sec. 6082 (West 1990). The district court correctly abstained on the ground that Frazier had sufficient opportunity to present her constitutional claims.

Frazier further asserts that abstention was improper because a showing of harassment or bias creates an exception to Younger abstention. Frazier's analysis of the law is correct. See Partington, 880 F.2d at 124. However, her assertion that she made a showing of bias before the district court fails. Frazier must overcome the presumption that the State Bar and the California Supreme Court are unbiased. See Partington, 880 F.2d at 124. This presumption can be rebutted "by a showing of conflict of interest or some other specific reason for disqualification." Schweiker v. McClure, 456 U.S. 188, 195 (1982).

The record before the district court merely demonstrated that Frazier was having difficulty raising her claim of discriminatory prosecution. There was no specific factual evidence that the disciplinary proceedings were brought merely to harass or simply because Frazier is a Black woman. In fact, many of the former clients who initiated complaints against Frazier were black.

None of the evidence offered by Frazier was sufficient to overcome the presumption that the State Bar and the California Supreme Court were unbiased. The district court correctly determined that there were "no extraordinary circumstances or proven bias on the part of the State Bar."

AFFIRMED.