Daniel Crowe v. Oregon State Bar
989 F.3d 714
| 9th Cir. | 2021Background
- Oregon requires lawyers to join and pay annual dues to the Oregon State Bar (OSB); OSB is funded by member dues and Oregon law disclaims state liability for its obligations.
- April 2018 OSB Bulletin published two adjacent statements: an OSB leadership statement condemning white nationalism and a joint statement from several specialty bar associations criticizing white nationalism and President Trump.
- Objecting members (Crowe and Gruber plaintiffs) complained; OSB refunded $1.15 (pro rata Bulletin cost) to objectors and defended the statements as germane to its mission.
- Plaintiffs sued alleging First Amendment violations: compelled speech (challenge to use of mandatory dues), compelled association (challenge to mandatory membership itself), and in Crowe a challenge to OSB’s procedural safeguards; Gruber also challenged OSB’s Eleventh Amendment immunity.
- The district court dismissed; the Ninth Circuit affirmed dismissal of the free speech claim and found OSB’s refund procedure adequate, but reversed dismissal of the free association claim (holding it is unresolved by precedent and viable), held OSB is not entitled to Eleventh Amendment immunity, and remanded. Judge VanDyke concurred except he would have reversed the Hudson-adequacy ruling (dissent on that point).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Free speech (use of compulsory dues for Bulletin speech) | Janus requires exacting scrutiny; Keller relied on Abood and is no longer controlling; mandatory fees cannot fund political/ideological speech without prior affirmative consent | Keller remains controlling precedent for integrated bars; OSB’s speech is germane or refundable; refunds mitigate injury | Court affirmed dismissal of free speech claim; Keller still controls and plaintiffs’ free-speech challenge fails even assuming nongermane speech |
| Procedural safeguards (Hudson adequacy) | OSB lacks Hudson-style advance audit/escrow; Hudson procedures are required to protect objectors | Keller does not require strict replication of Hudson; after-the-fact refund/arbitration process suffices here | Court held OSB’s procedures adequate (after-the-fact refund + arbitration); Judge VanDyke dissented on this point |
| Free association (compelled membership itself) | Mandatory membership forces association/identification with views plaintiffs reject; this broader associational claim was not decided in Keller or Lathrop | Precedent (Lathrop/Keller/Morrow) forecloses association challenges | Court reversed dismissal: the broader compelled-association claim (membership apart from dues) is not foreclosed and is viable; remanded for further proceedings (including whether Janus applies) |
| Eleventh Amendment immunity (is OSB an "arm of the state") | OSB is an instrumentality but not entitled to sovereign immunity because it is funded by dues and state treasury is not liable | OSB is a state agency/instrumentality and should be immune | Court held OSB is not an arm of the state under the Mitchell factors (state treasury not liable; other factors weigh against immunity); OSB not entitled to Eleventh Amendment immunity |
Key Cases Cited
- Keller v. State Bar of California, 496 U.S. 1 (1990) (permitted integrated bars to use compulsory dues only for activities germane to regulation/improvement of the profession)
- Abood v. Detroit Board of Education, 431 U.S. 209 (1977) (permitted compulsory union fees for collective-bargaining but not ideological activities)
- Janus v. AFSCME, 138 S. Ct. 2448 (2018) (overruled Abood; applied exacting scrutiny to compelled fee arrangements)
- Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986) (required procedural safeguards—notice, impartial review, escrow—for compelled fee objectors)
- Lathrop v. Donohue, 367 U.S. 820 (1961) (upheld compelled payment of bar dues limited to financial support, not broader compelled association)
- Morrow v. State Bar of California, 188 F.3d 1174 (9th Cir. 1999) (considered associational injury from mandatory bar membership but did not decide the broader Keller-reserved association claim)
- Mitchell v. L.A. Community College Dist., 861 F.2d 198 (9th Cir. 1988) (set factors for determining when an entity is an arm of the state for Eleventh Amendment immunity)