Compulsory bar can be challenged, 9th Circuit says

After an appellate court allowed a challenge to mandatory bar fees in Oregon to move forward, bar associations across the nation could face similar lawsuits. But the deunification of the California bar could be its saving grace.

The issue involves lawyers who disagreed with political statements made in the Oregon State Bar's monthly newsletter in April 2018, when the bar condemned what it said was white nationalism and the "normalization of violence" under President Donald Trump.

Oregon lawyers Daniel Z. Crowe, Lawrence K. Peterson, Diane L. Gruber, and Mark Runnels said the dues lawyers pay are used for the Oregon bar's political and ideological speech, even when the lawyers disagree with the opinions. They rejected the membership requirement, saying it violated their First Amendment right to freedom of speech and freedom of association.

The lawyers also argued that the Oregon bar does not provide sufficient protections for attorneys' First Amendment rights that the U.S. Supreme Court required in Keller v. State Bar of California, 496 U.S. 1 (1990). Keller affirmed the constitutionality of mandatory dues when the funds align with the bar's public protection mission.

The lawyers filed a lawsuit in the U.S. District Court of Oregon in 2018.

On Friday, a 9th U.S. Circuit Court of Appeals panel held that the district court erred when dismissing the lawyers' free association claims and remanded the case. Crowe et al., v. the Oregon State Bar, 2021 DJDAR 1851 (9th Cir., filed Feb. 26, 2021).

"The panel determined that plaintiffs raised an issue that neither the Supreme Court nor this court 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."

Circuit Judge Lawrence VanDyke dissented against the free association claim, saying that if the plaintiffs prevail, "the bar will presumably need to change its bylaws, and maybe its entire structure. Because such alterations would likely change the procedures the Crowe plaintiffs currently challenge, I don't think it is necessary that we review those procedures at this stage of the case."

Jacob Huebert,a senior attorney at the Goldwater Institute, which represents Crowe and Peterson, said he is thrilled that the court allowed the case to move forward.

"Because the Supreme Court hasn't resolved this issue and the 9th Circuit hasn't resolved this issue before, the plaintiffs should be allowed to proceed on this claim," Huebert said. "And now they'll be able to do so. We're hopeful that this will be the first step toward ending mandatory bar membership, not only in Oregon but ultimately, we hope nationwide."

The Goldwater Institute has already challenged mandatory bar fees in Louisiana and Oklahoma. According to Huebert, lawyers are encouraged by a recent Supreme Court decision that ended mandatory public-sector union fees. Janus v. AFSCME, 2018 DJDAR 6308. Huebert was one of the lawyers who represented Janus before the Supreme Court.

"We argue that mandatory bar membership and bar fees should be struck down for the same reasons the public sector union fees were struck down in the Janus case," Huebert said.

But according to Huebert, California State Bar does not have the First Amendment issues that the Oregon lawsuit is raising since it is restricted to regulating the legal profession.

The California bar submitted briefs in support of the Oregon bar in 2019.

But the California bar argued that if the court finds that Janus affects the legality of the Oregon bar's mandatory membership, it should make clear "that its decision is limited to integrated bars -- i.e., associations of attorneys in which membership is required -- and does not apply to attorney regulatory agencies without members or associational aspects, such as the State Bar of California."

After the Keller case in 1990, the California bar implemented changes and allowed for refunds to people who did not want to participate in certain activities.

But when the bar split into one regulatory arm and a trade association, now known as the California Lawyers Association, the bar avoided many of the issues that Keller has produced, said former president of the Board of Trustees, Michael G. Colantuono.

He oversaw the split in 2018.

"One of the virtues of splitting the trade association from the regulatory agency is that the California Lawyers Association is now a purely private sector entity, and it can engage in expressive activity to its heart's content," Colantuono said.

Colantuono speculated that the Oregon lawsuit represents a hope that a more conservative Supreme Court might revisit Keller, and given the recent decision Janus, that might be true, according to him.

"The idea of unitary bars remains controversial and change is afoot," Colantuono said.