Gruber v. Oregon State Bar
3:18-cv-01591
| D. Or. | May 16, 2022Background
- Plaintiffs are a current and a former member of the mandatory Oregon State Bar (OSB); Oregon requires bar membership to practice law.
- Plaintiffs objected to two April 2018 Bulletin statements (about white nationalism) and allege compulsory membership violates their First Amendment freedom of association.
- Plaintiffs previously had their free-speech claim dismissed; the Ninth Circuit affirmed that dismissal but remanded the associational claim for further consideration.
- Plaintiffs filed an early motion for summary judgment arguing that the integrated-bar structure alone (not specific OSB speech) violates associational rights.
- The Magistrate Judge recommended denying summary judgment; on de novo review the district court denied Plaintiffs’ motion, holding Plaintiffs failed to develop facts showing nongermane political activity and concluding precedent (Keller/Lathrop) governs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper standard of review for associational claim | Apply strict or Janus-style "exacting" scrutiny | Keller/germaneness framework controls for integrated bars | Court adopts germaneness/Keller framework (following Schell) rather than Janus exacting scrutiny |
| Whether mandatory integrated-bar membership alone violates freedom of association | Compulsory membership as condition to practice law is per se associational infringement | Integrated-bar membership is justified by state interest in regulating the profession; Keller and Lathrop allow compelled membership absent substantial nongermane activity | Structural challenge fails; Keller and Lathrop foreclose a per se challenge to integrated bars |
| Whether Plaintiffs proved violation on summary judgment | No need to show nongermane activity; structure alone suffices | Plaintiffs must show OSB engaged in nongermane political activities and develop factual record | Summary judgment denied; Plaintiffs must present evidence of nongermane activities and address how much nongermane activity would render compelled membership unconstitutional |
Key Cases Cited
- Lathrop v. Donohue, 367 U.S. 820 (1961) (plurality: compelled bar membership permissible where bulk of activities serve legitimate regulatory functions)
- Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) (dues/compelled support limits for public-sector unions; background on compelled-speech/association doctrine)
- Keller v. State Bar of California, 496 U.S. 1 (1990) (integrated bar may constitutionally fund activities germane to regulating the profession)
- Janus v. AFSCME, 138 S. Ct. 2448 (2018) (adopted exacting scrutiny for compelled public-sector union speech; discussed but not applied to integrated-bar associational claims)
- Crowe v. Oregon State Bar, 989 F.3d 714 (9th Cir. 2021) (affirmed dismissal of free-speech claim; remanded associational claim for district court to determine standard and sufficiency of allegations)
- Schell v. Chief Justice & Justices of Oklahoma Supreme Court, 11 F.4th 1178 (10th Cir. 2021) (applied germaneness/Keller framework to associational claims and analyzed specific bar communications)
- Taylor v. Buchanan, 4 F.4th 406 (6th Cir. 2021) (held Keller and Lathrop bar a general associational challenge to integrated bars absent nongermane activity)
- McDonald v. Longley, 4 F.4th 229 (5th Cir. 2021) (recognized that compelled membership can violate the First Amendment where the bar engages in non-germane activities)
- Morrow v. State Bar of California, 188 F.3d 1174 (9th Cir. 1999) (earlier Ninth Circuit decision framing similar compelled-membership/association issues)