Boudreaux v. LA State Bar Assn ( 2021 )


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  • Case: 20-30086     Document: 00515924627         Page: 1    Date Filed: 07/02/2021
    United States Court of Appeals
    for the Fifth Circuit                              United States Court of Appeals
    Fifth Circuit
    FILED
    July 2, 2021
    No. 20-30086
    Lyle W. Cayce
    Clerk
    Randy Boudreaux,
    Plaintiff—Appellant,
    versus
    Louisiana State Bar Association, a Louisiana Nonprofit
    Corporation; Louisiana Supreme Court; Bernette J.
    Johnson, Chief Justice of the Louisiana Supreme Court; Scott J.
    Crichton, Associate Justice of the Louisiana Supreme Court for the Second
    District; James T. Genovese, Associate Justice of the Louisiana Supreme
    Court for the Third District; Marcus R. Clark, Associate Justice of the
    Louisiana Supreme Court for the Fourth District; Jefferson D. Hughes,
    III, Associate Justice of the Louisiana Supreme Court for the Fifth District;
    John L. Weimer, Associate Justice of the Louisiana Supreme Court for the
    Sixth District; Unidentified Party, Successor to the Honorable Greg
    Guidry as Associate Justice of the Louisiana Supreme Court for the First
    District,
    Defendants—Appellees.
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    USDC No. 2:19-CV-11962
    Before Smith, Willett, and Duncan, Circuit Judges.
    Don R. Willett, Circuit Judge:
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    No. 20-30086
    After the COVID–19 pandemic threw the rite-of-passage bar exam
    into turmoil, states adopted a hodgepodge of responses that teed up larger
    questions, like “Is the bar exam the best way to measure competency?” and
    “[A]re there ways to fundamentally change how lawyers are trained,
    licensed, and regulated?” 1 The exam is being reexamined. But for most
    lawyers, the bar examination is just step one of a career-long relationship with
    the bar association. Even if the legal licensing regime is lastingly upended,
    thirty or so states still mandate joining and funding the state bar as a
    precondition to practicing law.
    This First Amendment case, one of several “bar wars” lawsuits across
    the country, challenges Louisiana law that forces lawyers to join and pay
    annual dues to the Louisiana State Bar Association (LSBA). 2 Louisiana
    attorney Randy Boudreaux objects to many of LSBA’s activities, which he
    labels political and ideological advocacy. He claims that compelled dues and
    membership violate his First Amendment rights, as does LSBA’s failure to
    ensure that his dues are not used to fund the bar’s political and ideological
    activities. The district court dismissed all of Boudreaux’s claims. We reverse.
    I
    A
    The Louisiana Supreme Court established the Louisiana State Bar
    Association (LSBA) in 1941 at the direction of the state legislature. 3 LSBA
    1
    Letter from Michigan Supreme Court Chief Justice Bridget Mary McCormack to
    Michigan Bar Examinees (July 29, 2020).
    2
    A companion case decided today concerns mandatory membership and fees in
    Texas. See McDonald v. Longley, No. 20-50448, __ F.3d __ (5th Cir. 2021).
    3
    La. Rev. Stat. § 37:211; In re Mundy, 
    11 So. 2d 398
    , 400 (La. 1942) (explaining
    history of LSBA); Lewis v. La. State Bar Ass’n, 
    792 F.2d 493
    , 495 (5th Cir. 1986) (same).
    2
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    is a “mandatory” or “integrated” bar, meaning attorneys must join to
    practice law in Louisiana. 4 To remain in good standing, attorneys must pay
    mandatory membership dues. 5 Currently, annual dues are $80 for attorneys
    in their first 3 years of membership, and $200 after that.6 Attorneys who fail
    to pay their dues are subject to discipline by the Louisiana Supreme Court. 7
    LSBA’s purposes are “to regulate the practice of law, advance the
    science of jurisprudence, promote the administration of justice, uphold the
    honor of the Courts and of the profession of law, encourage cordial
    intercourse among its members, and, generally, to promote the welfare of the
    profession in the State.” 8 To those ends, LSBA administers the state’s
    continuing legal education program, maintains a standing committee on the
    Rules of Professional Conduct, operates subject-matter “sections” devoted
    to different areas of the law, provides a mediation and arbitration service to
    resolve disputes between attorneys and clients, and sponsors the Judges and
    Lawyers Assistance Program to aid members of the profession struggling
    with substance abuse and mental health.
    LSBA also conducts legislative advocacy on behalf of the legal
    profession. Its Legislation Committee recommends policy positions on
    “matters involving issues affecting the profession, the regulation of attorneys
    and the practice of law, the administration of justice, the availability and
    delivery of legal services to society, the improvement of the courts and the
    4
    La. Rev. Stat. §§ 37:211, 37:213; La. R. Prof. Conduct § 1.1(c).
    5
    La. R. Prof. Conduct § 1.1(c); LSBA Articles of Incorporation art. V, § 1; LSBA
    By-Laws art. I, § 4.
    6
    LSBA By-Laws art. I, § 1.
    7
    La. S. Ct. R. XIX.
    8
    LSBA Articles of Incorporation art. III, § 1.
    3
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    legal profession, and such other matters consistent with the mission and
    purposes of the [LSBA].” 9 However, LSBA’s bylaws prohibit the
    Legislation Committee’s involvement with “legislation which is ideological
    in nature, unrelated to the practice of law, or which is unnecessarily
    divisive.” 10 From 2015 to 2019, the Legislation Committee took positions on
    at least 136 bills considered by the Louisiana legislature.
    LSBA’s bylaws require it to “timely publish notice of adoption of
    legislative positions in at least one of its regular communications vehicles and
    [to] send electronic notice of adoption of legislative positions to Association
    members.” 11 A member who opposes any of the bar’s activities for political
    or ideological reasons may file a written objection with LSBA’s Executive
    Director “within forty-five (45) days of the date of the Bar’s publication of
    notice of the activity to which the member is objecting.” 12 LSBA’s Board of
    Governors must either refund the pro rata amount of the objecting member’s
    dues expended on the challenged activity or refer the matter to arbitration. 13
    B
    Randy Boudreaux is a member of LSBA who practices law in New
    Orleans. He opposes the mandatory nature of the bar and claims he would
    not be a member but for the laws and regulations requiring it. He also opposes
    the use of his dues to fund political activity and legislative advocacy, and he
    9
    LSBA By-Laws art. XI, § I.
    10
    Id.
    11
    LSBA By-Laws art. XI, § 5.
    12
    LSBA By-Laws art. XII, § 1(A)(a).
    13
    Id.
    4
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    claims that LSBA does not provide him with adequate means to object to its
    political expenditures.
    Boudreaux sued LSBA, the Louisiana Supreme Court, and the
    individual state supreme court justices under 
    42 U.S.C. §§ 1983
     and 1988,
    seeking to enjoin enforcement of the rules requiring his membership in, and
    payment of dues to, LSBA. He claims that his First Amendment rights to
    free association and free speech are violated by (1) mandatory membership in
    LSBA, (2) the collection and use of mandatory bar dues to subsidize
    LSBA’s speech, and, alternatively, (3) LSBA’s failure to provide safeguards
    to ensure that his dues are not used for impermissible purposes.
    Defendants moved to dismiss for lack of jurisdiction under Rule
    12(b)(1) and for failure to state a claim under Rule 12(b)(6) of the Federal
    Rules of Civil Procedure. The district court determined that it had
    jurisdiction over Boudreaux’s first claim, his challenge to mandatory
    membership in LSBA, but dismissed that claim on the merits as foreclosed
    by Supreme Court precedent. The court dismissed Boudreaux’s second
    claim, his challenge to mandatory bar dues, for lack of jurisdiction after
    concluding that the dues are a tax for purposes of the Tax Injunction Act,
    which bars federal courts from hearing actions to restrain the collection of
    state taxes where a remedy is available in state court. The district court also
    dismissed Boudreaux’s third claim, his challenge to LSBA’s procedures for
    safeguarding his dues, for lack of jurisdiction, reasoning that Boudreaux
    lacked standing because he did not allege any impermissible expenditures.
    5
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    Boudreaux timely appealed. 14 We consider Boudreaux’s appeal alongside
    McDonald v. Longley, which involves similar challenges to Texas’s bar. 15
    II
    We review dismissals under Rule 12(b)(1) and Rule 12(b)(6) de novo. 16
    On a Rule 12(b)(1) motion, the party seeking to invoke federal jurisdiction
    has the burden. 17 To survive a Rule 12(b)(6) motion, “a complaint must
    contain sufficient factual matter, accepted as true, to state a claim to relief
    that is plausible on its face.” 18 “A claim has facial plausibility when the
    plaintiff pleads factual content that allows the court to draw the reasonable
    inference that the defendant is liable for the misconduct alleged.” 19
    III
    Before addressing Boudreaux’s arguments, we detail the two Supreme
    Court cases that govern First Amendment challenges to state bars, Lathrop
    v. Donohue 20 and Keller v. State Bar of California. 21 We emphasize what those
    cases did decide and, more importantly for this appeal, what they did not.
    14
    The court also determined that the Louisiana Supreme Court was not a proper
    defendant and dismissed it from the suit. Boudreaux does not challenge that ruling on
    appeal.
    15
    McDonald, slip op. at 1, __ F.3d at __.
    16
    Wilson v. Houston Cmty. Coll. Sys., 
    955 F.3d 490
    , 494 (5th Cir. 2020), cert.
    granted, No. 20-804, __ S. Ct. __ (Apr. 26, 2021).
    17
    
    Id.
    18
    Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009) (internal quotation marks omitted).
    19
    
    Id.
    20
    
    367 U.S. 820
     (1961).
    21
    
    496 U.S. 1
     (1990).
    6
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    Lathrop considered whether mandatory bar membership violates the
    right to free association. A plurality of the Supreme Court held that states can
    pursue their legitimate interests in improving the legal profession through
    mandatory bar membership without violating the right to free association as
    long as an attorney’s only obligation to the bar is to pay dues. 22 When that’s
    the case, mandatory bar membership is constitutional even though the bar
    “also engages in some legislative activity.” 23
    Lathrop’s freedom of association holding is limited. First, as the
    plurality itself emphasized, the opinion addressed only the consequences “of
    compelled financial support of group activities, not with involuntary
    membership in any other aspect.” 24 So, Lathrop did not consider whether an
    attorney’s associational rights are violated by, for instance, being incorrectly
    perceived as agreeing with the bar when the bar takes a public stance on a
    topic. Second, the opinion did not specify when (if ever) a bar’s legislative
    activity would infringe on an attorney’s associational rights. The plurality
    either presumed that the bar’s legislative activity in the case furthered a
    legitimate interest or concluded that the legislative activity did not alter the
    First Amendment analysis because it was not the bar’s “major activity.” 25
    The opinion is unclear on that. In any event, Lathrop does not appear to
    implicate the constitutionality of a bar’s political activity that is unrelated to
    improving the legal profession. “At bottom, Lathrop merely permitted states
    22
    
    367 U.S. at 843
    .
    23
    
    Id.
    24
    
    Id. at 828
    .
    25
    
    Id.
     at 839–43.
    7
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    to compel practicing lawyers to pay toward the costs of regulating their
    profession” without running afoul of the right to free association. 26
    Three decades later, Keller considered whether a bar’s use of
    mandatory dues to fund its political activity violates the right to free speech.
    The attorney in Lathrop had raised this issue, but the Court chose not to
    resolve it because the record in that case was ill suited to the task. 27 In finally
    addressing the issue, Keller held that the use of mandatory bar dues to
    regulate and improve the legal profession does not violate an attorney’s
    speech rights. 28 However, Keller prohibited bars from using mandatory dues
    for activities that are not germane to regulating and improving the legal
    profession. 29 The Court explained that state bars could satisfy their First
    Amendment obligation toward mandatory dues by adopting procedures to
    prevent the use of objecting attorneys’ dues for non-germane expenses. 30 It
    posited, but did not hold, that the constitutional minimum set of procedures
    in the union-fee context, set forth in Chicago Teachers Union v. Hudson, would
    likely be adequate in the bar-dues context as well. 31 Hudson requires “an
    adequate explanation of the basis for the fee, a reasonably prompt
    opportunity to challenge the amount of the fee before an impartial
    decisionmaker, and an escrow for the amounts reasonably in dispute while
    26
    Crowe v. Or. State Bar, 
    989 F.3d 714
    , 728 (9th Cir. 2021), petition for cert. filed,
    No. 20-1678 (June 2, 2021).
    27
    Lathrop, 
    367 U.S. at
    845–48.
    28
    
    496 U.S. at 14
    .
    29
    
    Id.
    30
    
    Id. at 17
    .
    31
    
    Id.
    8
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    such challenges are pending.” 32 But again, the Court did not mandate that
    state bars implement Hudson procedures. 33
    In addition to their free speech claim, the attorneys in Keller raised a
    free association claim that was not controlled by Lathrop. Specifically, they
    argued “that they cannot be compelled to associate with an organization that
    engages in political or ideological activities beyond those for which
    mandatory financial support is justified under the principles of Lathrop.” 34 In
    other words, they argued that mandatory membership in a state bar is
    unconstitutional if the bar engages in any activity that is not germane to
    regulating or improving the legal profession. The Court acknowledged that
    the “request for relief appear[ed] to implicate a much broader freedom of
    association claim than was at issue in Lathrop.” 35 But the Court declined to
    address the claim because the lower courts had not considered it. 36 Keller
    therefore left open whether an attorney can be compelled to join a bar that
    engages in non-germane activity. 37
    32
    Chi. Teachers Union v. Hudson, 
    475 U.S. 292
    , 310 (1986).
    33
    Keller, 
    496 U.S. at 17
    .
    34
    
    Id.
    35
    
    Id.
    36
    
    Id.
    37
    We join the Ninth and Tenth Circuits in reading Lathrop and Keller as leaving
    that question unresolved. See Schell v. The Chief Justice & Justices of the Oklahoma Supreme
    Court, No. 20-6044, slip op. at 27–28, __ F.3d __ (10th Cir. June 29, 2021); Crowe, 989
    F.3d at 727–29. We address the merits of this question head-on in McDonald and conclude
    that the answer is “no.” McDonald, slip op. at 16–19, __ F.3d at __.
    9
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    Both Lathrop and Keller heavily relied on cases governing union
    membership and dues. 38 The Supreme Court has since either overruled those
    union cases or seriously called their reasoning into question. 39 As the parties
    agree, Lathrop and Keller remain controlling law. 40 Even so, we recognize
    their weakened foundations, which counsels against expanding their
    application as we consider various questions the two cases left open. With
    this background in mind, we now turn to Boudreaux’s claims.
    IV
    We first consider whether Lathrop and Keller foreclose Boudreaux’s
    challenge to mandatory membership in LSBA. Then we consider whether
    the Tax Injunction Act precludes federal courts from exercising jurisdiction
    over his challenge to mandatory dues. Finally, we consider whether
    Boudreaux has standing to pursue his claim that LSBA does not employ
    adequate procedures to safeguard his dues.
    A
    Boudreaux’s first claim is that mandatory membership in LSBA
    violates the First Amendment. The district court dismissed this claim on the
    merits under Rule 12(b)(6) as foreclosed by Lathrop and Keller. Boudreaux
    contends that his claim presents the (previously) open free association
    38
    Lathrop, 
    367 U.S. at 828
    , 842–43 (citing Ry. Emps. Dep’t v. Hanson, 
    351 U.S. 225
    (1956) and Int’l Ass’n of Machinists v. Street, 
    367 U.S. 740
     (1961)); Keller, 
    496 U.S. at 6
    , 9–
    11, 13 (citing Abood v. Detroit Bd. of Educ., 
    431 U.S. 209
     (1977)).
    39
    Janus v. Am. Fed’n of State, Cnty., and Mun. Emps., 
    138 S. Ct. 2448
    , 2478–80
    (2018) (overruling Abood and questioning Hanson and Street).
    40
    Crowe, 989 F.3d at 724–25; Rodriguez de Quijas v. Shearson/Am. Express, Inc., 
    490 U.S. 477
    , 484 (1989) (“If 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.”).
    10
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    question from Keller (which we closed today in this circuit with our
    concurrently issued opinion in McDonald). 41 We agree.
    Boudreaux alleged that LSBA engages in legislative advocacy that is
    “inherently political and ideological.” His complaint specifically identifies
    LSBA’s resolutions urging a moratorium on executions, opposing civil
    immunities, and advocating changes to the high school civics curriculum. His
    complaint also notes LSBA’s lobbying against reducing the amount-in-
    controversy threshold to request a civil jury trial in state law, against
    requiring judges to file financial statements, and against allowing school
    personnel to carry firearms in schools. With these allegations, Boudreaux
    plausibly pleads that LSBA’s political and legislative activity goes beyond
    what’s constitutionally permissible under Lathrop—that the activity is not
    justified by the state’s interest in regulating and improving the legal
    profession. That’s all that is required to present the free association claim
    that Keller left unresolved.
    Discovery may bear out that LSBA does not actually engage in any
    non-germane activity. 42 But at this stage, we take Boudreaux’s allegations as
    true and draw all reasonable inferences in his favor. 43 Under that standard,
    dismissing his freedom of association claim as foreclosed by Keller was error.
    LSBA does not contest that Boudreaux pleaded the open question
    from Keller. Instead, it argues that Boudreaux lacks standing to pursue this
    claim because he did not plead a cognizable injury to his associational rights.
    Specifically, LSBA argues that Boudreaux has not alleged that it engages in
    any non-germane activity with which he disagrees. But Boudreaux alleged
    41
    McDonald, slip op. at 16–19, __ F.3d at __.
    42
    See, e.g., 
    id.,
     slip op. at 19–28, __ F.3d at __.
    43
    See Ashcroft, 
    556 U.S. at 678
    .
    11
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    that he “opposes the LSBA’s use of any amount of his mandatory dues to
    fund any amount of political or ideological speech, regardless of its
    viewpoint” and that “he does not wish to fund the LSBA’s political and
    ideological speech and other activities.” Plainly, Boudreaux objects to all of
    LSBA’s political activity. And, though Boudreaux characterizes the
    complained-of conduct as “political and ideological,” rather than using
    Keller’s term “non-germane,” pleading standards don’t demand such
    precision in terminology or any magic words. 44 The inference is clear that
    Boudreaux considers all of the conduct he identified in his complaint to be
    non-germane. That is enough to confer standing.
    B
    Boudreaux’s second claim challenges LSBA’s use of mandatory dues
    to fund non-germane political activities under Keller. The district court
    characterized the bar dues as a tax and dismissed this claim for lack of
    jurisdiction under the Tax Injunction Act. We disagree with that
    characterization.
    Under the Tax Injunction Act, “district courts shall not enjoin,
    suspend or restrain the assessment, levy or collection of any tax under State
    law where a plain, speedy and efficient remedy may be had in the courts of
    such State.” 45 “Distinguishing a tax from a fee often is a difficult task.” 46 A
    classic tax (1) “sustains the essential flow of revenue to the government,”
    (2) “is imposed by a state or municipal legislature,” and (3) “is designed to
    44
    See Fed. R. Civ. P. 8(a)(2), (d)(1), (e).
    45
    
    28 U.S.C. § 1341
    .
    46
    Home Builders Ass’n of Miss., Inc. v. City of Madison, 
    143 F.3d 1006
    , 1011 (5th Cir.
    1998).
    12
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    provide a benefit for the entire community.” 47 On the other hand, a classic
    fee (1) “is linked to some regulatory scheme,” (2) “is imposed by an agency
    upon those it regulates,” and (3) “is designed to raise money to help defray
    an agency’s regulatory expenses.” 48 Most assessments fall somewhere on a
    “spectrum” between a classic tax and a classic fee. 49
    Whether an assessment is a tax for purposes of the Tax Injunction Act
    is a question of federal law. 50 The label that the state legislature uses is
    immaterial. 51 A state court’s characterization may inform the inquiry, but it
    is not dispositive. 52 Here, the district court relied on the Louisiana Supreme
    Court’s description of the mandatory dues as “merely a form of levying a
    license tax upon the right to practice law.” 53 But the state court’s description
    from a 1942 case is outweighed by other factors.
    First, the dues are imposed by LSBA, not the legislature, which
    supports the characterization of the dues as a fee. In reaching the opposite
    conclusion, the district court emphasized that the state legislature directed
    the Louisiana Supreme Court to create LSBA and to impose mandatory dues
    on its members. 54 But this ignores the reality that LSBA, not the legislature,
    47
    
    Id.
    48
    
    Id.
    49
    Neinast v. Texas, 
    217 F.3d 275
    , 278 (5th Cir. 2000) (citing San Juan Cellular Tel.
    Co. v. Pub. Serv. Comm’n of P.R., 
    967 F.2d 683
     (1st Cir. 1992)).
    50
    Lipscomb v. Columbus Mun. Separate Sch. Dist., 
    269 F.3d 494
    , 500 n.13 (5th Cir.
    2001).
    51
    Home Builders, 143 F.3d at 1010 n. 10.
    52
    Lipscomb, 
    269 F.3d at
    500 n.13.
    53
    In re Mundy, 
    11 So. 2d at 400
    .
    54
    La. Rev. Stat. § 37:211; La. Act No. 54 of 1940 (“That the Supreme Court is
    hereby memorialized to exercise its inherent powers by providing for the organization and
    13
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    administers and sets the dues. 55 And, as Boudreaux argues, “virtually all
    charges government bodies impose are authorized by some statutory
    authority.” That the dues were authorized by the legislature thus means
    little; the question is whether the dues are “imposed” by the legislature. 56 A
    charge is more likely to be a tax when it is “directly set by the legislature.” 57
    LSBA’s dues are not.
    Second, the dues are imposed only on the attorneys LSBA regulates,
    not on the public at large. This is characteristic of a classic fee. 58
    Third, the dues are used to defray LSBA’s regulatory costs, not to
    raise general revenue for the state of Louisiana. The district court recognized
    as much. It nonetheless treated the dues as a tax because LSBA’s activities
    benefit the general public. The district court specifically pointed to LSBA’s
    practice area “sections” designed to improve the quality of legal services, its
    mediation and arbitration service to resolve disputes between lawyers and
    clients, and its client assistance program for clients who are left without a
    remedy for their lawyers’ wrongs. But those are only some of LSBA’s
    activities. LSBA also administers the state’s continuing legal education
    program, maintains a standing committee on the Rules of Professional
    regulation of the Louisiana State Bar Association . . . and by providing a schedule of
    membership dues, the non-payment of which shall be ground for suspension . . . .”).
    55
    LSBA By-Laws art. I; LSBA Articles of Incorporation art. V; see also id. at art.
    XIV, § 6(b) (“Such annual fee shall include annual dues as determined in accordance with
    Article V of the Articles of Incorporation of the Louisiana State Bar Association and the
    disciplinary assessment fee as determined in accordance with Supreme Court Rule XIX.”).
    56
    Home Builders, 143 F.3d at 1011.
    57
    Henderson v. Stalder, 
    407 F.3d 351
    , 357 (5th Cir. 2005).
    58
    See Neinast, 
    217 F.3d at 278
     (“The second factor, on whom the charge is
    imposed, suggests that the charge is a fee: the charge is imposed only on a narrow class of
    persons, disabled people wanting a placard, not the public at large.”).
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    Conduct, and sponsors the Judges and Lawyers Assistance Program to aid
    members of the profession struggling with substance abuse and mental
    health, among other things. There is no doubt that members of the public
    who come into contact with the legal system benefit from LSBA’s regulation
    and improvement of the profession. But LSBA’s focus is the legal
    community; it was not “designed to provide a benefit for the entire
    community.” 59 That a benefit inures to the public—mostly indirectly—from
    the LSBA’s activities does not change that, nor does it transform the
    LSBA’s dues into taxes.
    Because all three factors show that the bar dues are a fee, not a tax,
    dismissal under the Tax Injunction Act was improper.
    C
    Boudreaux’s third claim challenges LSBA’s procedures for ensuring
    that his dues are not used for non-germane purposes. Specifically, he alleges
    that LSBA does not provide adequate notice of its expenditures under
    Hudson because it publicizes only its legislative advocacy, leaving attorneys
    unable to challenge other activities as non-germane. The district court
    dismissed this claim for lack of standing, concluding that Boudreaux failed to
    allege a concrete injury because he had not identified any bar expenditures
    that he would have challenged if he had been given proper notice. According
    to the district court, Boudreaux’s allegation that “the LSBA may also engage
    in other activities, in addition to its legislative advocacy, that a member could
    challenge as not germane” was too speculative to establish standing. 60 We
    disagree with the characterization of Boudreaux’s injury.
    59
    Home Builders, 143 F.3d at 1011.
    60
    Emphasis added; Spokeo, Inc. v. Robins, 
    136 S. Ct. 1540
    , 1548 (2016) (“To
    establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally
    15
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    No. 20-30086
    As an initial matter, we have never addressed whether the
    Constitution requires state bars to implement Hudson procedures in their
    entirety or whether some lesser safeguards may suffice. We now hold that
    Hudson procedures are a constitutional prerequisite to a state bar’s collection
    of mandatory dues. In so holding, we part ways with the Ninth Circuit’s
    recent decision in Crowe v. Oregon State Bar that “nothing in Keller mandates
    a strict application of the Hudson procedures.” 61 Like the partial dissent in
    Crowe, we are persuaded that Hudson is the constitutional floor. 62
    In the public-union sector, where Hudson originated, the Supreme
    Court recently expressed skepticism that Hudson notice is ever sufficient to
    protect a union member’s First Amendment rights. 63 Based in part on that
    skepticism, the Court overruled its precedent authorizing public unions to
    collect mandatory dues from non-member employees for expenditures that
    are germane to collective bargaining. 64 Employees must now “affirmatively
    consent before any money is taken from them” by a public union. 65 The Court
    has not applied this opt-in requirement to state bars. State bars thus remain
    free under Keller to collect mandatory dues if they maintain adequate
    safeguards to prevent those dues from being expended on non-germane
    activity. In determining which safeguards are constitutionally adequate, we
    protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not
    conjectural or hypothetical.’”) (quoting Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560
    (1992)).
    61
    989 F.3d at 727.
    62
    See id. at 734 (VanDyke, J., dissenting).
    63
    Janus, 
    138 S. Ct. at 2482
     (“[T]he Hudson notice in the present case and in others
    that have come before us do not begin to permit a nonmember to make such a
    determination.”).
    64
    
    Id. at 2478
     (overruling Abood, 
    431 U.S. at 209
    ).
    65
    Id. at 2486 (emphasis added).
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    No. 20-30086
    are mindful of the Supreme Court’s protective holdings in the union context.
    Requiring anything less than Hudson procedures in the bar context would be
    inconsistent with the Supreme Court’s protective trend.
    The question remains whether Boudreaux needed to identify a non-
    germane expenditure to which he would have objected to establish standing
    on his Hudson claim. As we noted above, Boudreaux’s complaint does list
    LSBA’s alleged non-germane activities. However, Boudreaux never claims
    that he would have sought a refund of his dues, or otherwise protested, had
    he been given “an adequate explanation of the basis for the fee.” 66
    No court seems to have considered whether a plaintiff must identify
    an expenditure to which he would have objected in order to challenge a
    mandatory bar’s procedural safeguards. Lacking clear guidance on the
    standing issue, the district court turned to Air Line Pilots Association v.
    Miller. 67 The union in Air Line Pilots adopted an arbitration procedure to
    comply with Hudson’s second requirement, that union members have an
    opportunity to challenge an expenditure before an impartial decisionmaker. 68
    The Supreme Court held that the union members did not need to arbitrate
    their challenges to the union’s fees before filing suit in federal court. 69 The
    Court rejected the union’s concern that allowing plaintiffs to bypass
    arbitration would be inefficient, admonishing that a plaintiff cannot “file a
    generally phrased complaint, then sit back and require the union to prove the
    ‘germaneness’ of its expenditures without a clue” as to which expenditures
    66
    Hudson, 
    475 U.S. at 310
    .
    67
    
    523 U.S. 866
     (1998).
    68
    
    Id. at 869
    .
    69
    
    Id.
     at 879–80.
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    the plaintiff opposed. 70 Rather, the Court explained, “[a]gency-fee
    challengers, like all other civil litigants, must make their objections known
    with the degree of specificity appropriate at each stage of litigation their case
    reaches: motion to dismiss; motion for summary judgment; pretrial
    conference.” 71 The district court relied on that language to require
    Boudreaux to allege a non-germane expenditure to which he was opposed
    before he could challenge LSBA’s procedures.
    Air Line Pilots is inapposite. As noted, that case involved Hudson’s
    second requirement, the impartial decisionmaker. This case involves
    Hudson’s first requirement, that members receive notice of the basis for the
    fee or dues. More importantly, unlike Boudreaux, the union members in Air
    Line Pilots challenged the collection of a particular fee, alleging that the union
    “had overstated the percentage of its expenditures genuinely attributable to
    ‘germane’ activities.” 72 The constitutionality of the union’s procedures was
    not at issue. Indeed, the Court seemed to assume that the union’s procedures
    were constitutionally adequate when it rejected the union’s efficiency
    argument. After cautioning that a plaintiff would not be able to challenge
    expenditures in a “generally phrased complaint,” the Court explained that
    because of the Hudson notice, “an objector can be expected to point to the
    expenditures or classes of expenditures he or she finds questionable.” 73 It
    emphasized that “[t]he very purpose of Hudson’s notice requirement is to
    provide employees sufficient information to enable them to identify the
    70
    
    Id. at 878
    .
    71
    
    Id.
    72
    
    Id. at 870
    .
    73
    
    Id. at 878
    .
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    No. 20-30086
    expenditures that, in their view, the union has improperly classified as
    germane.” 74
    In this case, Boudreaux asserts that LSBA’s Hudson notice is not
    fulfilling its purpose. The Constitution requires that bar members be able to
    challenge expenditures as non-germane, but Boudreaux alleges he is unable
    to do so because of LSBA’s deficient notice process. His inability to identify
    non-germane expenditures is his injury, not the non-germane expenditures
    themselves. In that way, his claim differs from the union members’ in Air
    Line Pilots. By alleging that LSBA does not regularly provide notice of its
    expenditures with sufficient specificity, Boudreaux has pleaded an injury-in-
    fact for the claim he is pursuing. Dismissing his claim for lack of standing was
    therefore error.
    V
    We REVERSE the district court’s judgment and REMAND this
    case for further proceedings.
    74
    
    Id.
    19