9th Circuit revives Oregon lawyers’ freedom-of-association challenge to mandatory bar membership
MAR 1, 2021 | REPUBLISHED BY LIT: MARCH 10, 2021
The San Francisco-based 9th U.S. Circuit Court of Appeals has revived a First Amendment challenge to the Oregon State Bar’s mandatory membership requirement.
Ruling Friday in two cases brought by Oregon lawyers, the appeals court said the plaintiffs could not bring a free-speech challenge to mandatory fees. But the appeals court said the plaintiffs could pursue their claim that mandatory membership in a group that that engages in political or ideological activities violates the right to freedom of association.
The Oregon State Bar requires that bar dues be used to pay only for activities relating to regulation of the legal profession. The plaintiffs objected when Oregon’s bar leaders released an April 2018 statement in the bar’s Bulletin on white nationalism that condemned “violence, extremism and exclusion.” A statement in the bulletin by specialty bars said then-President Donald Trump “has himself catered to this white nationalist movement.”
Bar members who objected to the statement received a refund of $1.15, the cost of printing the April 2018 Bulletin, the appellate decision said.
The appeals court said the bar’s dues policy was permissible under the Supreme Court’s 1990 decision Keller v. State Bar of California, which held that a state bar may use mandatory dues to subsidize activities germane to the goals of regulating the legal profession and improving the quality of legal services.
The appeals court said Keller was not expressly overruled by the 2018 Supreme Court decision in Janus v. AFSCME. Janus held that requiring employees to pay union dues for collective bargaining violates their free speech rights under the First Amendment.
But the appeals court said the Supreme Court has not yet decided the issue of whether compulsory membership in an organization, independent of compelled financial support, violates the right to association.
“Plaintiffs raise an issue that neither the Supreme Court nor we have ever addressed: whether the First Amendment tolerates mandatory membership itself — independent of compelled financial support — in an integrated bar that engages in nongermane political activities,” the 9th Circuit said.
The appeals court remanded the case for reconsideration of the mandatory membership issue, including the proper standard to evaluate the claim.
The court ruled in a per curiam opinion.
In a partial dissent, Judge Lawrence VanDyke said the district court should have also been allowed to reconsider whether the bar’s refunds and other safeguards were sufficient.
The other judges on the panel were Jay Bybee, along with Kathleen Cardone, a district court judge who was sitting by designation.
The Goldwater Institute represents one group of plaintiffs. The cases are Crowe v. Oregon State Bar and Gruber v. Oregon State Bar.
VICTORY! NINTH CIRCUIT ALLOWS GOLDWATER CHALLENGE TO COMPULSORY BAR MEMBERSHIP TO PROCEED
FEB 26, 2021 | REPUBLISHED BY LIT: MARCH 10, 2021
The Ninth Circuit Court of Appeals today in a unanimous decision declared that a Goldwater Institute lawsuit against Oregon’s mandatory bar association can proceed to trial.
The case, brought on behalf of lawyers who object to being forced to join the association and fund its politically oriented publications, had been thrown out by a trial court judge who concluded that Supreme Court precedent allows states to require bar association membership.
But the Court of Appeals today reversed that decision, holding that the question of whether the government can force lawyers to join bar associations that engage in political and ideological speech that isn’t related to regulating the practice of law—is “an issue that neither the Supreme Court nor we have ever addressed.”
Forcing lawyers to join bar associations has been controversial for decades.
In a 1961 case called Lathrop, the Supreme Court was so sharply divided on the question that the justices failed to publish a majority opinion. Four of them declared mandatory bar membership was constitutional, but did so by relying on cases that said it was constitutional to force people to join labor unions—a position the Supreme Court later abandoned.
Thirty years later, in a case called Keller, the Court again failed to answer whether lawyers can be forced to join bar associations that engage in political and ideological activities that aren’t related to regulating the practice of law or improving the quality of legal services.
Nevertheless, many states still require lawyers to join bar associations and pay them dues if they want to practice law.
Many lawyers object to this, since bar associations often take political positions that lawyers disagree with and don’t want to be forced to fund (to the tune of several hundred dollars a year).
The First Amendment protects a person’s right to associate—or not to associate—yet state bar associations often disregard this right entirely, using mandatory dues to fund partisan political activities. The Oregon State Bar, for example, often publishes partisan statements in its monthly Bulletin—and does so with money taken from lawyers against their will.
As today’s Ninth Circuit decision puts it,
The First Amendment protects the basic right to freely associate for expressive purposes; correspondingly, “the right to eschew association for expressive purposes is likewise protected.” Freedom from compelled association protects two inverse yet equally important interests.
First, it shields individuals from being forced to “confess by word or act their faith” in a prescriptive orthodoxy or “matters of opinion” they do not share.
Second, because “effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association,” freedom from compelled association checks the power of “officials, high or petty, [to] prescribe what [opinions] shall be orthodox.”
In short, like the “freedom of belief,” freedom from compelled association “is no incidental or secondary aspect of the First Amendment’s protections.” Plaintiffs’ freedom of association claim based on the April 2018 Bulletin statements is viable.
The Goldwater Institute is representing the plaintiffs in the case together with attorney Luke Miller, a member of Goldwater’s pro bono program, American Freedom Network.
Goldwater has filed similar lawsuits in North Dakota, Louisiana, and Oklahoma challenging the constitutionality of mandatory bar associations.
(The Louisiana lawsuit is scheduled for argument in the Fifth Circuit Court of Appeals next week.) – This has already happened and LIT had already listened to the Oral Arguments, which we provide in this article.
Today’s decision makes clear how important are the constitutional rights at stake.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.
LIT would like to remind Judge Don R. Willett of the Court of Appeals for the Fifth Circuit -he sat beside Timothy Sandefur of the Goldwater Institute at a Federalist Society meeting while he was a Supreme Court of Texas justice. The Burkes referenced Sandefur’s authored book in a motion before the court, which is titled; “The Conscience of the Constitution, The Declaration of Independence and the Right to Liberty” and which reminds this court of it’s obligations and responsibilities pertaining to the Constitution and due process in law clause, with particularity.
Defending Lawyers’ First Amendment Rights
Boudreaux v. Louisiana State Bar Association
AUG 1, 2019 | REPUBLISHED BY LIT: MARCH 11, 2021
In 30 states, attorneys are required to join and pay dues to a bar association to be allowed to practice law. All too often, those bar associations don’t just use members’ dues to make sure lawyers are qualified and behave ethically; they also use members’ money for political and ideological advocacy.
In Louisiana, for example, the state’s mandatory bar association has used members’ dues to advocate for removal of “free enterprise” education from the state’s high school curriculum requirements. It’s also taken positions on a wide variety of other controversial issues ranging from the death penalty to drug policy to social issues.
That violates lawyers’ First Amendment right to freedom of association and their right to choose what political speech they will and won’t support with their money.
And it’s totally unnecessary. In 20 states, attorneys aren’t forced to pay dues to a bar association that can use their money for political and ideological speech—but the state still regulates attorneys, and attorneys still pay for the cost of that regulation. If those states can regulate the practice of law without forcing attorneys to surrender their First Amendment rights, then so can the others.
In Boudreaux v. Louisiana State Bar Association, the Goldwater Institute is representing New Orleans attorney Randy Boudreaux in a lawsuit asking the federal courts to declare that mandatory bar association membership and fees violate the First and Fourteenth Amendments of the U.S. Constitution.
This case follows three other Goldwater Institute lawsuits currently challenging mandatory membership and dues:
Fleck v. Wetch, challenging North Dakota’s mandatory bar, which the U.S. Supreme Court has ordered the U.S. Court of Appeals for the Eighth Circuit to reconsider in light of the Supreme Court’s decision ending mandatory public-sector union fees in Janus v. AFSCME; and
Crowe v. Oregon State Bar, challenging Oregon’s mandatory bar.
Schell v. Gurich, challenging Oklahoma’s mandatory bar.
CASE LOGISTICS
The plaintiff in this case is Randy Boudreaux, a New Orleans attorney who has been forced to join and pay dues to the Louisiana State Bar Association. The defendants are the Louisiana State Bar Association and the Louisiana Supreme Court and its justices, sued in their official capacities.
The case was filed in the United States District Court for the Eastern District of Louisiana on August 1, 2019.
Mr. Boudreaux seeks an order declaring mandatory bar membership and dues unconstitutional or, at a minimum, an order declaring that Louisiana does not provide sufficient safeguards to ensure that attorneys’ mandatory dues aren’t used for political and ideological speech that isn’t germane to improving the quality of legal services and regulating the legal profession, as Supreme Court precedent requires.
LEGAL TEAM
Jacob Huebert
Jacob Huebert is a Senior Attorney at the Goldwater Institute, litigating cases on free speech, property rights, and the Second Amendment.
Jacob currently leads the Goldwater Institute’s First Amendment challenges to state laws that require attorneys to join and pay dues to a bar association. He also has represented four law-abiding Chicago-area residents seeking to reclaim their Second Amendment rights in a lawsuit challenging the state of Illinois’s long delays in issuing licenses to possess firearms.
Before joining Goldwater, he served as Director of Litigation for the Liberty Justice Center in Chicago. There, he successfully litigated cases to protect economic liberty, free speech, and other constitutional rights, including the landmark Janus v. AFSCME case, in which the U.S. Supreme Court upheld government workers’ First Amendment right to choose for themselves whether to pay money to a union. Jacob and his work have appeared in numerous national media outlets, including the Wall Street Journal, New York Times, and Fox News Channel.
Jacob holds a B.A. in economics from Grove City College and a J.D. from the University of Chicago Law School. After law school, Jacob served as a clerk to Judge Deborah Cook of the U.S. Court of Appeals for the Sixth Circuit.
Timothy Sandefur
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and holds the Duncan Chair in Constitutional Government. He litigates important cases for economic liberty, private property rights, and free speech in states across the country.
Timothy is the author of several books, including Frederick Douglass: Self-Made Man (2018), Cornerstone of Liberty: Property Rights in 21st Century America (coauthored with Christina Sandefur, 2016), The Permission Society (2016), The Conscience of The Constitution (2014), and The Right to Earn A Living (2010), as well as dozens of scholarly articles on subjects ranging from Indian law to antitrust, slavery and the Civil War, and political issues in Shakespeare, ancient Greek drama, and Star Trek.
He is an Adjunct Scholar with the Cato Institute and is a graduate of Hillsdale College and Chapman University School of Law.
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