hair care whose main techniques include hair braiding, locking, twisting, weaving, and cornrows." Complaint P 23. These techniques originated centuries ago in Africa and were brought into this country by Africans where the methods have endured and been expanded. Complaint P 24. African hair styling is a form of natural hair care that does not use any chemicals. Complaint P 26. Plaintiff alleges that no CBBC-approved cosmetology schools teach African hair styling techniques as part of their required curriculum. Complaint P 27. Further, the CBBC-mandated curriculum does not include any instruction in African hair styling, natural hair care, braiding, twisting, weaving, locking or cornrowing.
African hair styling is distinct from the type of styling taught in cosmetology schools in that it rejects the application of harsh chemicals to the hair of African-Americans. These chemicals can cause long-term damage to the hair. Instead, African hair styling uses the natural texture of the hair to style the hair. Complaint PP 30-33. African hair styling involves physical manipulation of the hair and is labor intensive, often requiring between four and twelve hours to complete, including instruction in the proper maintenance of the hairstyle. Complaint P 34.
Many African-American women choose to have their hair styled in African techniques as an expression of their cultural heritage. Complaint P 28.
D. Facts Giving Rise to the Instant Action
Plaintiff Dr. Cornwell founded Sisterlocks, a San Diego based company, to meet the natural hair care needs of women with textured hair. Complaint P 39. Dr. Cornwell both styles the hair of African-American women, and trains others in African hair styling. She runs a two-day training seminar and has trained approximately 75 people. Complaint P 40-44. Dr. Cornwell seeks to open her own salon, but she cannot do so unless she obtains a license from the CBBC. Complaint P 48. Dr. Cornwell is not a CBBC-licensed cosmetologist, and believes that the instruction she would receive at a CBBC-approved cosmetology school would be irrelevant to the techniques of African hair styling that she employs. Complaint P 49.
Plaintiff AHNHCA is a nationwide trade association composed of individuals and salons engaging in various forms of hair braiding and African hair styling. Complaint P 53. One of AHNHCA's primary efforts is to "challenge the arbitrary and unreasonable application of state cosmetology and barbering licensing laws and regulations to individuals engaged in the art of African hair styling." Complaint P 55.
Ali Rasheed and his salon, the Braderie, belong to AHNHCA. The Braderie is an African hairbraiding and weaving salon in San Diego. Rasheed owns the business with his wife and their business partner, Marguerite Sylva. Complaint P 60. Ms. Sylva is a Master Braider, certified by the National Braiders Guild, and a licensed cosmetologist. Complaint P 61. At the two Braderie salons, seven individuals, none of whom are licensed cosmetologists, perform braiding and weaving services for customers. Most of them, including Ms. Sylva, learned their craft in Africa. Complaint PP 64-65.
On October 2, 1996, a CBBC inspector visited the Braderie in San Diego and issued a "Notice of Violation and Assessment of Fine" to the salon and to Ms. Sylva whose cosmetology license had expired. Ms. Sylva was cited for practicing cosmetology without a license and the Braderie was cited for "aiding and abetting unlicensed activity." Both Ms. Sylva and the Braderie were fined $ 100. Complaint PP 67-68. The Braderie was also charged with operating an establishment without a license and for braiding activity by unlicensed people. Complaint P 70. Ms. Sylva and the Braderie have appealed their citations and fines. Complaint P 71.
Many of the braiders at the Braderie cannot afford to take a cosmetology course, and believe that such a course would not teach them anything relevant to African hair styling. Moreover, many of them emigrated from Africa and do not possess the tenth grade education required for eligibility to take the licensing examination. Complaint P 75.
The Braderie cannot continue to operate without a license, and cannot continue to employ African hair braiders who are not licensed cosmetologists. Complaint PP 82-84.
E. Plaintiffs' Complaint
Plaintiffs' complaint asserts three main claims: (1) the Cosmetology and Barbering Act, as applied to African hair styling, violates plaintiffs' due process rights under the United States and California constitutions (claims 1 and 4); (2) the Barbering and Cosmetology Act, as applied to African hair styling, violates plaintiffs' equal protection rights under the U.S. and California constitutions (claims 2 and 5); and (3) the Barbering and Cosmetology Act, as applied to African hair styling, violates plaintiffs' rights under the privileges and immunities clauses of the U.S. and California constitutions (claims 3 and 6). Plaintiffs seek a declaratory judgment that the Barbering and Cosmetology Act is unconstitutional as applied to African hair styling, a permanent injunction against the enforcement of the statute and its attendant regulations, and attorney's fees and costs. Plaintiffs do not seek monetary damages.
On March 27, 1997, the defendants filed motions to dismiss.
A. Standard of Law
A motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the claims in the complaint. A claim can only be dismissed with prejudice if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). This court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to plaintiff. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The court need not, however, accept every allegation in the complaint as true; rather, the court "will examine whether conclusory allegations follow from the description of facts as alleged by the plaintiff." Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citation omitted).
B. Whether Plaintiff's Claims Against the DCA are Barred by Eleventh Amendment Immunity
The Eleventh Amendment does not preclude suits against state officers for prospective injunctive relief, even when the remedy will enjoin the implementation of an official state policy. Ex Parte Young, 209 U.S. 123, 161-62, 52 L. Ed. 714; 28 S. Ct. 441 (1908); Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985); Chaloux v. Killeen, 886 F.2d 247, 252 (9th Cir. 1989); Hoohuli v. Ariyoshi, 741 F.2d 1169, 1173-75 (9th Cir. 1984). Defendants are correct that neither state agencies nor state officials acting in their official capacities are "persons" for purposes of a § 1983 suit seeking monetary damages. Will v. Michigan Department of State Police, 491 U.S. 58, 70-71, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). State officials acting in their official capacity, however, are "persons" for the purposes of § 1983 when sued only for prospective injunctive relief.
Of course a state official acting in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because "official-capacity actions for prospective relief are not treated as actions against the State." Kentucky v. Graham, 473 U.S. at 167 n. 14; Ex Parte Young, 209 U.S. 123, 159-60, 52 L. Ed. 714; 28 S. Ct. 441 (1908). The distinction is "commonplace in sovereign immunity doctrine." L. Tribe, American Constitutional Law § 3-27, p. 190, n. 3 (2d ed. 1988), and would not have been foreign to the 19th-century Congress that enacted § 1983[.]
Will, 491 U.S. at 71 n. 10; see Chaloux, 886 F.2d at 252.
In this suit, plaintiffs only seek declaratory and injunctive relief. For this reason, Eleventh Amendment sovereign immunity is not a bar to plaintiffs' claims for prospective injunctive relief against state officials acting in their official capacities.
The state officials with the statutory duty to enforce and administer the allegedly unconstitutional state statute are the proper defendants in a suit for prospective injunctive relief. Ex Parte Young, 209 U.S. at 157-61; Chaloux, 886 F.2d at 251-52. The members of the CBBC are authorized to regulate the practices of barbering and cosmetology in the State of California, to issue licenses, to discipline people who violate the Barbering and Cosmetology Act, and to oversee inspections of barbering and cosmetology establishments.
Cal. Bus. & Prof. Code § 7312. The California Attorney General has the authority to seek an injunction against any acts or practices in violation of any state law that the director of a state regulatory agency finds may cause harm to consumers. Cal. Bus. & Prof. Code § 321. These defendants are proper defendants in a suit for prospective injunctive relief pursuant to Ex Parte Young.
Defendants are correct, however, that suit cannot be maintained against the Department of Consumer Affairs. State agencies enjoy Eleventh Amendment immunity, and are not considered "persons" within the meaning of § 1983. Florida Department of Health and Rehabilitative Services v. Florida Nursing Home Association, 450 U.S. 147, 67 L. Ed. 2d 132, 101 S. Ct. 1032 (1981) (suits against state department of health and rehabilitative services barred by Eleventh Amendment immunity); Hale v. State of Arizona, 967 F.2d 1356 (9th Cir.), cert. denied, 510 U.S. 946, 126 L. Ed. 2d 335, 114 S. Ct. 386 (1993) (holding that Arizona Department of Corrections is not a "person" within the meaning of 42 U.S.C § 1983); see Hoohuli, 741 F.2d at 1174. Further, the CBBC, not the DCA, is responsible for setting minimum qualifications for licensure under the Barbering and Cosmetology Act and for enforcing the statute. Cal. Bus. & Prof. Code § 101.6. For these reasons, plaintiffs' claims against the Department of Consumer Affairs are barred by the Eleventh Amendment.
Although defendants do not move to dismiss the claims against the California Board of Barbering and Cosmetology, the CBBC is also immune from suit under the Eleventh Amendment. In determining whether an entity is an arm of the state, the Court considers:
whether a money judgment would be satisfied out of state funds, whether the entity performs central government functions, whether the entity may sue and be sued, whether the entity has the power to take property in its own name or only the name of the state, and the corporate status of the entity.
Hale, 967 F.2d at 1370. In this case no money judgment is sought, but if injunctive relief were awarded, it would prevent the enforcement of a state law and state regulations against plaintiffs. The CBBC performs the state functions of licensing and regulating several professions. The CBBC has the power to promulgate regulations concerning the practice of barbering and cosmetology, to inspect establishments, to issue notices of violation, and to assess administrative fines. See Cal. Bus. & Prof. Code §§ 7311 & 7312. The five public CBBC board members are appointed by the Governor of the state of California, the Senate Committee on Rules, and the Speaker of the Assembly. Cal. Bus. & Prof. Code § 7306. The CBBC is a state board operating within the Department of Consumer Affairs. Cal. Bus. & Prof. Code § 7302. The BCA does not state the corporate status of the CBBC or whether it can be sued in its own capacity. Given that the CBBC regulates the statewide practice of several professions, that it is a subdivision of a major state agency, and that it is appointed by high-level state officials, the CBBC is an arm of the state for the purposes of Eleventh Amendment immunity. Other courts have found similar governmental units to be arms of the state. See, e.g., Jones v. State of Michigan, 525 F. Supp. 636 (E.D. Mich. 1981) (State Board of Dentistry was a state agency); Johnson v. Rodriguez, 943 F.2d 104 (1st Cir. 1991) (Massachusetts Commission against Discrimination was a state agency); Darlak v. Bobear, 814 F.2d 1055 (5th Cir. 1987) (Department of Health and Human Services was a state agency); Jackson v. Hayakawa, 682 F.2d 1344 (9th Cir. 1982) (state university is state instrumentality); Lupert v. California State Bar, 761 F.2d 1325 (9th Cir. 1985) (Board of Governors of State Bar was state agency); Ronwin v. Shapiro, 657 F.2d 1071 (9th Cir. 1981) (Arizona Law Review was a state agency). Accordingly, on its own motion, the Court dismisses all claims against the CBBC.
Plaintiffs can only proceed against the individual CBBC board members and the Attorney General in their official capacities for their actions in administering and enforcing the allegedly unconstitutional provisions of the Barbering and Cosmetology Act and its attendant regulations.
All claims against the Department of Consumer Affairs and the California Board of Barbering and Cosmetology are DISMISSED without leave to amend.
C. Younger Abstention
In Younger v. Harris, 401 U.S. 37, 44, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), the Supreme Court held that federal courts may not enjoin pending state court criminal proceedings. The Supreme Court fashioned an abstention doctrine preventing federal courts from interfering with state criminal proceedings, even if there is an allegation of a federal constitutional violation. Younger abstention has been extended to civil proceedings where important state interests are involved. Huffman v. Pursue, 420 U.S. 592, 43 L. Ed. 2d 482, 95 S. Ct. 1200 (1975); Middlesex Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432, 73 L. Ed. 2d 116, 102 S. Ct. 2515 (1982). In Huffman, state officials instituted a civil nuisance proceeding against an adult theater under an Ohio statute which made the exhibition of obscene films a nuisance. The state prevailed in the trial court and obtained an injunction. Rather than appealing the judgment, the theater owner filed a suit in federal court under 42 U.S.C. § 1983 seeking declaratory and injunctive relief. The Supreme Court held that the lower federal courts were required to abstain under Younger. The court reasoned that the state's nuisance proceeding was "more akin to a criminal prosecution than are most civil cases." 420 U.S. at 604. In Trainor v. Hernandez, 431 U.S. 434, 52 L. Ed. 2d 486, 97 S. Ct. 1911 (1977), the Supreme Court clarified that Younger abstention applies to all civil cases in which the state is a party.
The Supreme Court has further explained that abstention is appropriate when the state is a party or when important state interests are at stake and so long as the state system provides an opportunity to adjudicate federal constitutional claims. Moore v. Sims, 442 U.S. 415, 423-26, 60 L. Ed. 2d 994, 99 S. Ct. 2371 (1979). In determining whether a federal court should abstain on Younger grounds, the court must examine: (1) the nature of the state proceedings in order to determine whether the proceedings implicate important state interests, (2) the timing of the request for federal relief in order to determine whether there are ongoing state proceedings, and (3) the ability of the federal plaintiff to litigate its federal constitutional claims in the state proceedings. Kenneally v. Lungren, 967 F.2d 329, 331-32 (9th Cir. 1992) (citing Middlesex, 457 U.S. 423, 73 L. Ed. 2d 116, 102 S. Ct. 2515), cert. denied, 506 U.S. 1054, 122 L. Ed. 2d 133, 113 S. Ct. 979 (1993).
The Supreme court has extended Younger abstention to pending state administrative proceedings. In Middlesex County Ethics Committee, an attorney was brought up on disciplinary charges in the New Jersey administrative bar discipline system. He then filed suit in federal court to enjoin the disciplinary proceeding. The Supreme Court noted that the state had an "extremely important" interest in this case because of its need to maintain and ensure the "professional conduct" of its attorneys, and affirmed the lower court's abstention on Younger grounds. 457 U.S. 423 at 428-34.
In Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 91 L. Ed. 2d 512, 106 S. Ct. 2718 (1986), a teacher at a church-run school was fired when she became pregnant because the church believed that mothers should stay at home and raise their preschool children. The teacher filed a complaint with the Ohio Civil Rights Commission (Commission), contending that her nonrenewal was unlawful gender discrimination. The Commission found probable cause to believe that she had been discriminated against and initiated administrative proceedings against the school. The school then filed suit in federal court seeking an injunction against the administrative proceeding on First Amendment grounds. The Supreme Court held that the lower federal court should have abstained pursuant to Younger. Id. 477 U.S. 619 at 623-25. The court explained that Younger abstention applies to state administrative proceedings "in which important state interests are vindicated, so long as in the course of those proceedings the federal plaintiff would have a full and fair opportunity to litigate his constitutional claim." Id. at 627.
In the instant case, the Braderie and Ms. Sylva have appealed their citations and fines for violation of the Barbering and Cosmetology Act and are currently involved in an administrative appeal. A hearing date has not yet been set for their administrative appeal. Under Cal. Bus. & Prof. Code § 7410, a person who receives a citation or fine has the right to appeal it to a disciplinary review committee established by the CBBC. Persons appealing fines or citations have a right to appear before the CBBC, its authorized representative or administrative law judge and to present oral and written evidence "relating to the facts and circumstances relating to the notice of violation[.]" Cal. Bus. & Prof. Code § 7410. When a licensee contests a citation, the CBBC is required to afford an opportunity for such a hearing. Cal. Bus. & Prof. Code § 7411. This hearing is conducted in accordance with the formal administrative hearing procedures in Cal. Gov. Code § 11500 et seq. The decision rendered is subject to judicial review in the state court system by means of a writ of mandate. Cal. Gov. Code § 11523. These procedures adequately allow the Braderie and Ms. Sylva to raise their federal constitutional challenges. Kenneally, 967 F.2d at 332 (procedures adequate because the Board can receive evidence of constitutional challenges and California courts are competent to review such challenges upon a petition for a writ of mandate).
It is clear that were this case brought by the Braderie and/or Ms. Sylva, the Court would be required to abstain on Younger grounds. There is an ongoing state proceeding involving the state, the Braderie and Ms. Sylva. The Braderie and Ms. Sylva have raised their constitutional objections to the application of the Barbering and Cosmetology Act in those proceedings. The state has an important interest in regulating the conduct of its professions. See Middlesex, 457 U.S. at 434 (noting important state interest in regulating professions). The purpose of these regulations is to protect the health, safety and welfare of its citizens. Cal. Bus. & Prof. Code § 7312. This interest is evidenced by the comprehensive scheme for regulating barbering and cosmetology enacted in the Barbering and Cosmetology Act. Cal. Bus. & Prof. Code § 7300 et seq.
In this case, however, the Braderie and Ms. Sylva are not plaintiffs. This action is brought by Dr. Cornwell and AHNHCA. As to Dr. Cornwell, her claims are not barred by the proceedings pending against Braderie and Ms. Sylva. "Abstention is mandated under Younger only when the federal plaintiff is actually a party to the state proceeding; the doctrine does not bar non-parties from raising constitutional claims in federal court, even if the same claims are being addressed in a concurrent state proceeding involving similarly situated parties." Blackwelder v. Safnauer, 689 F. Supp. 106, 119 (N.D.N.Y. 1988), aff'd and appeal dismissed, 866 F.2d 548 (2nd Cir. 1989).
In Doran v. Salem Inn, Inc., 422 U.S. 922, 45 L. Ed. 2d 648, 95 S. Ct. 2561 (1975), three operators of topless dancing establishments brought suit in federal court to enjoin enforcement of a town ordinance making topless dancing unlawful. After the suit was filed, one of the plaintiff establishments resumed topless dancing and was prosecuted in state court for violating the ordinance. The Supreme Court upheld the preliminary injunction as to the two establishments that were not parties to the state proceeding, but denied relief to the establishment that was being prosecuted in state court. Id. 422 U.S. 922 at 924-48. This case demonstrates that it is only the actual party to the state court proceeding, not all similarly situated parties, who cannot challenge the constitutionality of the statute in federal court.
Similarly, in Steffel v. Thompson, 415 U.S. 452, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974), two men were distributing pamphlets and were told that if they did not desist, they would be arrested. One desisted and one did not. The one who did not was arrested and prosecuted for trespassing. The one who stopped filed suit in federal court to have the statute declared unconstitutional. Despite the fact that he had been pamphleting along with the man who was arrested, the Supreme Court held that the federal court should not abstain under Younger because the federal plaintiff was not a party to the state court proceeding. Id. 415 U.S. 454 at 455-60. For this reason, even if the Court dismisses the claims brought by AHNHCA on Younger grounds, the claims brought by Dr. Cornwell may still proceed.
The more difficult question is whether AHNHCA is barred from bringing suit in federal court because one of its members is involved in a state administrative proceeding. No courts appear to have directly confronted this issue. Two circuits have, however, addressed the issue of whether related parties can be barred from litigating in federal court on a theory of derivative preclusion. In Citizens for a Better Environment, Inc. v. Nassau County, 488 F.2d 1353 (2nd Cir. 1973), a nonprofit environmental organization and some of its employees brought a suit pursuant to 42 U.S.C. § 1983 to restrain police departments from enforcing local ordinances prohibiting door to door solicitation for education and fund-raising campaigns. Some of the organization's other employees had been cited for violating the ordinances and were involved in state court proceedings. Id. 488 F.2d at 1355-56. The Second Circuit held that the organization was not barred from seeking prospective injunctive relief from enforcement of the ordinance under Younger even though several of its employees were involved in state court proceedings. Id. 488 F.2d at 1360-61.
The Third Circuit confronted a similar situation and reached the same conclusion in New-Jersey Philadelphia v. New Jersey State Board of Higher Education, 654 F.2d 868 (3rd Cir. 1981). Suit was brought in federal court by a church, a religious college affiliated with the church, and students and parents of students at the college against the state Board of Education challenging the constitutionality of its enforcement of licensing regulations for higher educational institutions. The Board of Education had previously filed suit against the Board of Directors of the college and several of its officers in state court. Id. 654 F.2d 868 at 870-72, 877. Defendants argued that the plaintiffs in the federal suit were so closely related to the state court defendants, that the court should abstain on Younger grounds. The court noted that there might be a situation where a nonparty is so related to a state court party "in terms of ownership, control and management that pursuit of a separate federal action would undermine Younger." Id. at 880. Relying on Steffel and Doran, the Third Circuit held that although the college itself was barred from litigating in federal court, the church with which it was affiliated, and students at the college and their parents could maintain the federal suit against the Board of Education. Id. at 881.
These two cases deal with related parties, but they do not address the issue of whether an organization is barred from bringing suit in federal court when one of its members, on whose behalf it is bringing the suit, is involved in an ongoing state proceeding. This issue was discussed by Chief Justice Burger in an opinion which concurred in part and dissented in part in Allee v. Medrano, 416 U.S. 802, 830-31, 40 L. Ed. 2d 566, 94 S. Ct. 2191 (1974) (joined by Justices White and Rehnquist). In Allee, a union and several of its members brought suit in federal court challenging the constitutionality of state statutes under which picketers, who were also union members, had been arrested and prosecuted. A three judge district court panel decided the case prior to the Supreme Court's decision in Steffel v. Thompson, 415 U.S. 452, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1973), reaching the merits of the case and ruling that the state statutes at issue were unconstitutional. The Supreme Court, however, received Allee after it had decided Steffel. After affirming the district court on several unrelated matters, the Supreme Court vacated the district court's decision holding the state statutes unconstitutional for reconsideration in light of Steffel.
Allee, 416 U.S. at 818-20. In his opinion dissenting in part and concurring in part, Chief Justice Burger explained how he felt the lower court should apply Younger to this dispute on remand.
The union, to the extent that it has standing, will be seeking interference with state court prosecutions of its members. There is an identity of interest between the union and its prosecuted members; the union may seek relief only because of the prosecutions of its members, and only by ensuring that such prosecutions cease may the union vindicate the constitutional interests which it claims are violated. The union stands in the place of its prosecuted members even as it asserts its own constitutional rights.