Opinion
3:18-cv-1591-JR
05-16-2022
DIANE L. GRUBER and MARK RUNNELS, Plaintiffs, v. OREGON STATE BAR, a Public Corporation; VANESSA A. NORDYKE, President of the, Oregon State Bar; HELEN HIERSCHBIEL, Chief Executive Officer of the Oregon State Bar, Defendants.
FINDINGS & RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Plaintiffs bring this action challenging the mandatory nature of the Oregon State Bar (OSB) and its compulsory fee structure. On January 9, 2019, defendants moved to dismiss the action. On May 24, 2019, the Court granted defendants' motion and dismissed the case finding the OSB entitled to Eleventh Amendment Immunity and that both the First Amendment free speech and freedom of association claims fail because of the Bar's procedural safeguards protecting against compelled speech that is not germane to the law. Findings and Recommendation (ECF 44) Order adopting (ECF 46).
On appeal, the Ninth Circuit affirmed dismissal of plaintiffs' free speech claim finding the OSB's refund process sufficient to minimize potential infringement on members' constitutional rights if the OSB engages in political activity that is not germane to the Bar's role in regulating the legal profession. Crowe v. Oregon State Bar, 989 F.3d 714, 727 (2021). However, the appeals court found plaintiffs' free association claim viable because past Supreme Court and Ninth Circuit precedent failed to resolve this issue when previously confronted with it. Id. at 729. The Ninth Circuit remanded to this Court to address the appropriate standard for assessing the free association claim and whether previous instruction regarding germaneness and procedurally adequate safeguards are relevant.
The Ninth Circuit also determined that OSB is not an arm of the state entitled to Eleventh Amendment Immunity. Crowe, 989 F.3d at 733.
Plaintiffs now seek summary judgment asserting that Oregon laws requiring them to be members of the OSB and pay dues, fees, and assessments violate their right to freedom of association protected by the First Amendment.
BACKGROUND
As noted in previous opinions, the impetus behind plaintiffs' claims relate to statements published in the OSB April 2018 Bulletin regarding “White Nationalism and Normalization of Violence” and “Joint Statement of the Oregon Specialty Bar Associations Supporting the Oregon State Bar's Statement on White Nationalism and Normalization of Violence.” See, e.g., Crowe, 989 F.3d at 722-23. Plaintiffs complained about the statements and OSB refunded $1.15 to plaintiffs and other objectors in an effort to adhere to the standards of germane speech as set forth in Keller v. State Bar of California, 496 U.S. 1, 13 (1990) (a state bar may use mandatory dues to subsidize activities germane to the goals for regulating the legal profession and the quality of legal services without running afoul of members' rights to free speech). The issue upon remand is whether the OSB membership requirement violates plaintiffs' freedom of association by forcing them to associate with an organization whose political views they oppose.
In Oregon, with few exceptions, active Bar membership is required to practice law. Or. Rev. Stat. § 9.160. A court shall enjoin any person from practicing law in violation of section 9.160 and may punish them with contempt. Or. Rev. Stat. § 9.166.
Generally, all members of the Bar must pay annual membership fees and a professional liability assessment. Or. Rev. Stat. § 9.191. Failure to pay the fee will result in suspension from practice. Or. Rev. Stat. § 9.200.
The Bar's Board of Governors is required to advance the science of jurisprudence and the improvement of the administration of justice. Or. Rev. Stat. § 9.080(1). To accomplish this mission, the Bar administers exams for admission to practice, examines a member's character and fitness, formulates and enforces rules of conduct, and requires continuing education and training of its members. Or. Rev. Stat. §§ 9.210; 9.490; 9.114. In addition, the Bar provides the public with general legal information and seeks to increase pro bono legal services. See, e.g., https://www.osbar.org/public/; https://www.osbar.org/lsp; https://www.osbar.org/probono/.
As part of its mission, the Bar publishes a monthly Bar Bulletin. The Bar's communications within the Bulletin:
should be germane to the law, lawyers, the practice of law, the courts and the judicial system, legal education and the Bar in its role as a mandatory membership organization. Communications, other than permitted advertisements, should advance pu blic understanding of the law, legal ethics and the professionalism and collegiality of the bench and Bar.
Oregon State Bar Bylaws, Art. 11, Sec. 1 http://www.osbar.org/_docs/rulesregs/bylaws.pdf (In addition:
Bar legislative or policy activities must be reasonably related to any of the following subjects: Regulating and disciplining lawyers; improving the f unctioning of the courts including issues of judicial independence, fairness, efficacy and efficiency; making legal services available to society; regulating lawyer trust accounts; the education, ethics, competence, integrity and regulation of the legal pr ofession; providing law improvement assistance to elected and appointed
government officials; issues involving the structure and organization of federal, state and local courts in or affecting Oregon; issues involving the rules of practice, procedure and evidence in federal, state or local courts in or affecting Oregon; or issues involving the duties and functions of judges and lawyers in federal, state and local courts in or affecting Oregon.Id. at 12.1.
To the extent such communications fail to adhere to this policy, the Bylaws provide a framework for addressing those communications:
Section 12.6 Objections to Use of Bar Dues
Subsection 12.600 Submission
A member of the Bar who objects to the use of any portion of the member's bar dues for activities he or she considers promotes or opposes political or ideological causes may request the Board to review the member's concerns to determine if the Board agrees with the member's objections. Member objections must be in writing and filed with the Chief Executive Officer of the Bar. The Board will review each written objection received by the Chief Executive Officer at its next scheduled board meeting following receipt of the objection. The Board will respond through the Chief Executive Officer in writing to each objection. The Board's response will include an explanation of the Board's reasoning in agreeing or disagreeing with each objection.
Subsection 12.601 Refund
If the Board agrees with the member's objection, it will immediately refund the portion of the member's dues that are attributable to the activity, with interest paid on that sum of money from the date that the member's fees were received to the date of the Bar's refund. The statutory rate of interest will be used. If the Board disagrees with the member's objection, it will immediately offer the member the opportunity to submit the matter to binding arbitration between the Bar and the objecting member. The Chief Executive Officer and the member must sign an arbitration agreement approved as to form by the Board.
Subsection 12.602 Arbitration
If an objecting member agrees to binding arbitration, the matter will be submitted to the Oregon Senior Judges Association ("OSJA") for the designation of three active-status retired judges who have previously indicated a willingness to serve as volunteer arbitrators in these matters. The Bar and the objecting member will have one peremptory challenge to the list of arbitrators. The Bar and the objecting member must notify one another of a peremptory challenge within seven days after
receiving the list of proposed arbitrators. If there are no challenges or only one challenge, the OSJA will designate the arbitrator. The arbitrator will promptly arrange for an informal hearing on the objection, which may be held at the Oregon State Bar Center or at another location in Oregon that is acceptable to the parties and the arbitrator. The hearing will be limited to the presentation of written information and oral argument by the Bar and the objecting member. The arbitrator will not be bound by rules of evidence. The presentation of witnesses will not be a part of the hearing process, although the arbitrator may ask the state bar representative and the objecting member and his or her lawyer, if any, questions. The hearing may be reported, but the expense of reporting must be borne by the party requesting it. The Bar and the objecting member may submit written material and a legal memorandum to the arbitrator no later than seven days before the hearing date. The arbitrator may request additional written material or memoranda from the parties. The arbitrator will promptly decide the matter, applying the standard set forth in Keller v. State Bar of California, 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990), to the expenditures to which the member objected. The scope of the arbitrator's review must solely be to determine whether the matters at issue are acceptable activities for which compulsory fees may be used under applicable constitutional law. In making his or her decision, the arbitrator must apply the substantive law of Oregon and of the United States Federal Courts. The arbitrator must file a written decision with the Chief Executive Officer within 14 days after the hearing. The arbitrator's decision is final and binding on the parties. If the arbitrator agrees with the member's objection, the Bar will immediately refund the portion of the member's dues that are reasonably attributable to the activity, with interest at the statutory rate paid on the amount from the date that the member's fees were received to the date of the Bar's refund. If the arbitrator agrees with the Bar, the member's objection is denied and the file in the matter closed. Similar or related objections, by agreement of the parties, may be consolidated for hearing before one arbitrator.
Oregon State Bar Bylaws, Art. 12, Sec. 6 (http://www.osbar.org/docs/rulesregs/bylaws.pdf).
At this stage of the proceedings, the record is insufficient as to what procedures the Bar has in place to accommodate any members who object to nongermane political activity so as to ensure that such member is not implicated in the activity simply by virtue of his or her mandated membership in the OSB.
DISCUSSION
The Ninth Circuit held in Crowe:
The First Amendment protects the basic right to freely associate for expressive purposes; correspondingly, “[t]he right to eschew association for expressive purposes is likewise protected.” Janus, 138 S.Ct. at 2463 (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 623, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984)). 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. W.Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Second, because “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, ” NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), freedom from compelled association checks the power of “official[s], high or petty, [to] prescribe what [opinions] shall be orthodox.” Barnette, 319 U.S. at 642, 63 S.Ct. 1178. In short, like the “freedom of belief, ” freedom from compelled association “is no incidental or secondary aspect of the First Amendment's protections.” Abood, 431 U.S. at 235, 97 S.Ct. 1782.Crowe, 989 F.3d 714, 729.
Lawyers admitted to practice in a state may be required to join and pay dues to the state's bar. Keller v. State Bar of California, 496 U.S. 1, 4 (1990). The OSB may constitutionally fund activities germane to the Bar's goals from the mandatory dues. See id. at 14. However, to comply with Keller's safeguard requirements for the collection of fees, the Bar must include an adequate explanation of the basis for the fee, provide a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and provide an escrow account for the amounts reasonably in dispute while such challenges are pending. See id. at 16. This Court and the Ninth Circuit have previously found the Bar's safeguards adequate for purposes of plaintiffs' free speech claim.
The Ninth Circuit determined that the Keller decision did not resolve whether the First Amendment tolerates mandatory membership itself, independent of compelled financial support, in an integrated bar that engages in nongermane political activities. Thus, the Ninth Circuit instructed this Court as follows:
On remand, there are a number of complicated issues that the district court will need to address. To begin, the district court will need to determine whether Janus supplies the appropriate standard for Plaintiffs' free association claim and, if so, whether OSB can satisfy its “exacting scrutiny standard.” Janus, 138 S.Ct. at 2477; see also, e.g., Fleck v. Wetch, __U.S.__, 139 S.Ct. 590, 202 L.Ed.2d 423 (2018) (remanding a mandatory bar membership case for further consideration in light of Janus). Given that we have never addressed such a broad free association claim, the district court will also likely need to determine whether Keller's instructions with regards to germaneness and procedurally adequate safeguards are even relevant to the free association inquiry.Crowe, 989 F.3d at 729.
After remand from the Supreme Court, the Eighth Circuit in Fleck declined to address the freedom of association claim separate from the Keller decision:
Fleck's brief on remand placed primary emphasis on his third claim -- that mandatory state bar association membership violates the First Amendment by compelling him both to pay dues to SBAND and to associate with an organization that engages in political or ideological activities. He argues that Janus requires further consideration of this claim because Keller did not address what the Supreme Court described as “a much broader freedom of association claim than was at issue in Lathrop, ” 496 U.S. at 17, 110 S.Ct. 2228, [footnote omitted] and in Janus the Court “made clear that courts must apply ‘exacting scrutiny' -- or possibly even strict scrutiny -- to the question of whether the state's decision to force an attorney to join the state bar association violates the First Amendment freedom of association.”
Assuming without deciding that Keller “left the door open” to pursue this freedom of association claim in the district court and in this court, Fleck explicitly chose not to do so. In his motion for summary judgment to the district court, Fleck conceded that his “claim challenging the constitutionality of conditioning the practice of law upon SBAND membership ... is presently foreclosed by Keller, ” and therefore the district court “must deny his motion for summary judgment as it relates [to] this claim.” Defendants in responding to Fleck's motion and the district court's order granting defendants' cross-motion for summary judgment relied in part on this concession. Likewise, Fleck's brief on appeal to this court conceded that his “alternative claim challenging the constitutionality of mandatory bar association membership is foreclosed by Keller and Lathrop, ” and therefore “this Court must affirm the lower court's judgment on this claim.” He explained that he was presenting the argument “to preserve it for the proper forum.” Relying on this
concession, we stated that “we need not further address this issue” and devoted our opinion to an analysis of Fleck's opt-out claim.Fleck v. Wetch, 937 F.3d 1112, 1115-16 (8th Cir. 2019), cert. denied, 140 S.Ct. 1294, (2020), reh'g denied, 140 S.Ct. 2756 (2020).
As the Ninth Circuit has noted, the discrete issue of involuntary membership in a bar, standing alone, has not yet been addressed by the Supreme Court. The Court in Keller applied its prior decision in Lathrop v. Donohue, 367 U.S. 820, 843 (1961), where it held that the “compulsory payment of reasonable annual dues” to the integrated Wisconsin bar did not violate plaintiff's First Amendment “rights of association.” The Court in Lathrop noted that it was presented “only with a question of compelled financial support of group activities, not with involuntary membership in any other aspect.” Id. at 828.
In Janus, the Supreme Court held that Illinois' agency-fee scheme, under which public employees were forced to subsidize a union, even if they chose not to join and strongly objected to the positions the union took in collective bargaining and related activities, violated the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern. Janus v. Am. Fed'n of State, Cty., & Mun. Emps., Council 31, 138 S.Ct. 2448 (2018). In reaching this decision, the Court declined to determine whether strict scrutiny applied given that the Illinois scheme did not survive intermediate scrutiny. Id. at 2465. The Court found the State's interest in “labor peace, ” while compelling, could be achieved through less restrictive means. Id. at 2465-66.
Error! Main Document Only. Under exacting scrutiny, a compelled subsidy must “serve a compelling state interest that cannot be achieved through means significantly less restrictive of associational freedoms. Janus, 138 S.Ct. at 2465.
Thus, it appears Janus also did not directly address the issue of mandatory memberships independent of compelled financial support.
However, the failure to pay dues necessarily removed the employee from Union membership. Still the Union was required to represent the interest of all public employees in the unit including nonunion members. Janus, 138 S.Ct. at 2467. It is unclear if such representation would also implicate the “guilt by association” that appears to be at the heart of plaintiffs' freedom to disassociate claim to which this case has now transformed. Compelled association through membership appears to implicate the idea that plaintiffs' political views will be associated with the OSB's purported political views through the 2018 statements in the Bulletin. Arguably, representation of nonmember public employee's interest through a union would similarly implicate such association of political views. However, plaintiffs' do not address the parameters of their associational interest through this motion.
As noted in the previous F&R recommending dismissal in this case:
[The Supreme Court does] not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent. We reaffirm that “[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”Agostini v. Felton, 521 U.S. 203, 237 (1997).
Even where intervening Supreme Court decisions have undermined the reasoning of an earlier decision, lower courts must continue to follow the earlier case if it “directly controls” until the Court has overruled it. Thompson v. Marietta Educ. Ass'n, 972 F.3d 809, 812-14 (6th Cir. 2020); Grutter v. Bollinger, 288 F.3d 732, 743-44 (6th Cir. 2002) (en banc) (“If a precedent of [the] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.”). Despite reframing the freedom of association claims so as not to directly address the compelled association independent of financial support, the Keller and Lathrop decisions remain the most relevant Supreme Court cases regarding First Amendment issues implicated by mandatory bar membership. Moreover, it appears the Keller decision does not run afoul of an exacting scrutiny standard. See Harris v. Quinn, 573 U.S. 616, 656 (2014) (applying exacting scrutiny standard and finding it “wholly consistent” with the holding in Keller).
Thus, in answer to the questions posed by the Ninth Circuit in this remand, even if Janus applies the appropriate standard, it appears that standard, exacting scrutiny, is consistent with Keller in determining whether mandatory bar membership violates First Amendment rights. Regarding the second question, application of Keller's instructions of germaneness and procedurally adequate safeguards, given the current state of the law in controlling Supreme Court precedent, it is reasonable to assume the Supreme Court would apply such instructions to the free association claim. Regardless, application of Keller to plaintiffs' free association claim does not end the inquiry in this case given the lack of a factual record.
Plaintiffs assert that Oregon could use a less restrictive means to achieve its compelling interest to regulate the practice of law through use of a licensing structure with a voluntary bar association. Indeed, plaintiffs' note that 40 percent of the states use such an approach, and that Oregon uses a similar approach with physicians. However, plaintiffs do not address the harms to their associational rights related to the mandatory nature of Oregon's bar.
It is unclear from the record whether mandatory membership in the OSB forces plaintiffs to adopt political views of the OSB that are not germane to the practice of law. As noted above, OSB's bylaws prohibit non-germane activity. In addition, to the extent the Bar engages in nongermane activity in violation of its own bylaws, members can object but it is not clear if the remedy of a refund of their portion of dues to such activity also addresses any associational harm implicated by their membership. Indeed, it is not clear on this record whether such non-permitted activity harms plaintiffs' right to disassociate from such views at all. Could the purported harm have been addressed, for example, via a contemporaneous or subsequent publication stating that those letters do not represent plaintiffs' views? If the activity does harm associational rights and such a disclaimer could suffice to assuage that harm, is there a mechanism to require the disclaimer? Moreover, could the purported harm be addressed simply by any member who does not subscribe to such view submitting their own letter in the Bulletin stating their views? In addition, could members associate on their own to express their views and disavow their association in the OSB to the extent members disagree with purported nongermane views of the OSB? The record simply is not sufficiently developed to answer those questions and thus determine whether summary judgment is appropriate regarding plaintiffs' freedom of association claim.
The second letter at issue published in the April 2018 Bulletin by the Oregon Asian Pacific American Bar Association, the Oregon Women Lawyers, the Oregon Filipino American Lawyers Association, OGALLA-The LGBT Bar Association of Oregon, the Oregon Chapter of the National Bar Association, the Oregon Minority Lawyers Association, and the Oregon Hispanic Bar Association demonstrates that members of the Bar may form subgroups for purposes of viewpoint expression which may vitiate the alleged harm to freedom of association occasioned by mandatory OSB membership.
The Court also notes that plaintiffs seek damages for the purported violation of their right to freedom of association to recover their bar dues, PLF assessment, and costs for continuing legal education. The record lacks evidentiary support that such fees would not be similarly assessed under a license and voluntary bar scheme. If Oregon instituted a voluntary Bar, it may very well replace Bar dues with a yearly license renewal fee, continue to require liability insurance, and continuing legal education as a perquisite to maintaining licensure. However, the record is devoid of how such a system would work and certainly does not demonstrate that a less restrictive means of regulating the legal profession would require elimination of such fees. Indeed, it is difficult to imagine that such fees could be imposed without violating free speech rights and yet violate the right to associate. As noted above, the Ninth Circuit framed the issue as one independent of compelled financial support. Thus, even if there were a record sufficient to properly assess the propriety of mandated membership, it appears that the only relief available would be a declaration that the mandatory nature of OSB membership violates plaintiffs' rights and therefore an injunction prohibiting forced membership is warranted.
At this stage of the proceedings, the Court should deny plaintiffs' motion for summary judgment.
CONCLUSION
Plaintiffs' motion for summary judgment (ECF 65) should be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.