Daniel Crowe v. Oregon State Bar

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL Z. CROWE; LAWRENCE K. No. 19-35463
PETERSON I; OREGON CIVIL
LIBERTIES ATTORNEYS, an Oregon D.C. No.
nonprofit corporation, 3:18-cv-02139-
Plaintiffs-Appellants, JR
v.
OREGON STATE BAR, a Public
Corporation; OREGON STATE BAR
BOARD OF GOVERNORS; VANESSA A.
NORDYKE, President of the Oregon
State Bar Board of Governors;
CHRISTINE CONSTANTINO, President-
elect of the Oregon State Bar Board
of Governors; HELEN MARIE
HIERSCHBIEL, Chief Executive
Officer of the Oregon State Bar;
KEITH PALEVSKY, Director of
Finance and Operations of the
Oregon State Bar; AMBER
HOLLISTER, General Counsel for the
Oregon State Bar,
Defendants-Appellees.
2 CROWE V. OREGON STATE BAR
DIANE L. GRUBER; MARK RUNNELS, No. 19-35470
Plaintiffs-Appellants,
D.C. No.
v. 3:18-cv-01591-
JR
OREGON STATE BAR; CHRISTINE
CONSTANTINO; HELEN MARIE
HIERSCHBIEL, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted May 12, 2020
Portland, Oregon
Filed February 26, 2021
Before: Jay S. Bybee and Lawrence VanDyke, Circuit
Judges, and Kathleen Cardone,* District Judge.
Per Curiam Opinion;
Partial Concurrence and Partial Dissent by Judge VanDyke
*
The Honorable Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
CROWE V. OREGON STATE BAR 3
SUMMARY**
Civil Rights
The panel affirmed in part and reversed in part the district
court’s dismissal of plaintiffs’ claims, and remanded, in
actions alleging First Amendment violations arising from the
Oregon State Bar’s requirement that lawyers must join and
pay annual membership fees in order to practice in Oregon.
At the heart of plaintiffs’ suits were two statements
published alongside each other in the April 2018 edition of
the Oregon State Bar’s (“OSB”) monthly Bulletin. The first,
attributed to OSB and signed by its leaders, condemned white
nationalism and the “normalization of violence.” The second
was a joint statement of the Oregon Specialty Bar
Associations supporting OSB’s statement. OSB maintained
that both Bulletin statements were germane to its role of
improving the quality of legal services. When plaintiffs and
other members complained about the statements, OSB
refunded $1.15 to plaintiffs and other objectors—the portion
of their membership fees used to publish the April 2018
Bulletin.
In affirming the district court’s dismissal of the free
speech claim, the panel held that it need not decide whether
the district court erred in concluding that the Bulletin
statements were germane under Keller v. State Bar of
California, 496 U.S. 1, 13–14 (1990) (or, in the case of the
Specialty Bars’ statement, not attributable to OSB) for
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 CROWE V. OREGON STATE BAR
purposes of this appeal. Even assuming both statements were
nongermane, plaintiffs’ free speech claim failed. Plaintiffs
had argued that because Keller relied on Abood v. Detroit Bd.
of Educ., 431 U.S. 209, 234–36 (1977), to treat compulsory
dues like union dues, and because Abood was overruled by
Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council
31, 138 S. Ct. 2448, 2477, 2481 (2018), the court was
required to apply Janus’s exacting scrutiny to OSB’s
assessment of membership fees. In rejecting this argument,
the panel noted that Keller plainly had not been overruled and
therefore could not now prohibit the very thing it permitted
when decided.
The panel rejected the Crowe plaintiffs’ alternative
argument that, assuming mandatory dues remained
constitutionally permissible, OSB failed to provide adequate
procedural safeguards as required by Chicago Teachers
Union v. Hudson, 475 U.S. 292 (1986). The panel held that
nothing in Keller mandated a strict application of the Hudson
procedures. As alleged, the OSB’s refund process was
sufficient to minimize potential infringement on its members’
constitutional rights. The panel therefore affirmed the district
court as to plaintiffs’ free speech claim and the adequacy of
OSB’s procedural safeguards with respect to protecting
plaintiffs’ free speech rights.
The panel held that the district court erred by dismissing
plaintiffs’ free association claim as barred by precedent. 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.
The panel concluded that plaintiffs’ freedom of association
CROWE V. OREGON STATE BAR 5
claim based on the Bulletin statements was viable. Because
the district court erred in dismissing this claim as foreclosed
by precedent, the panel reversed and remanded. On remand,
the panel noted that there were a number of complicated
issues that the district court would need to address, including
whether Janus supplies the appropriate standard for plaintiffs’
free association claim and, if so, whether OSB can satisfy its
exacting scrutiny standard.
The panel held that the district court erred by determining
that OSB was an arm of the state entitled to Eleventh
Amendment immunity. The panel concluded that, on the
whole, the relevant factors set forth in Mitchell v. L.A. Cmty.
Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1988), weighed
against finding OSB an arm of the state entitled to immunity.
As to the first and most important factor—whether a money
judgment would be satisfied out of state funds—the panel
noted that Oregon law expressly disavows State financial
responsibility for OSB, which is funded by membership fees.
Concurring in part and dissenting in part, Judge VanDyke
agreed with and concurred in the entirety of the panel’s
opinion, except the panel’s resolution of the Crowe plaintiffs’
inadequate procedural safeguards claim based on Chicago
Teachers Union v. Hudson. Given the Supreme Court’s
decision in Janus, it was hard for Judge VanDyke to see how
something less than Hudson’s safeguards could suffice in the
context of compulsory bar membership dues. Accordingly,
he respectfully dissented on this singular claim.
6 CROWE V. OREGON STATE BAR
COUNSEL
Jacob Huebert (argued) and Timothy Sandefur, Scharf-
Norton Center for Constitutional Litigation at the Goldwater
Institute, Phoenix, Arizona; Luke D. Miller, Military
Disability Lawyer LLC, Salem, Oregon; for Plaintiffs-
Appellants Daniel Z. Crowe, Lawrence K. Peterson I, and
Oregon Civil Liberties Attorneys.
Michael L. Spencer (argued), Klamath Falls, Oregon, for
Plaintiffs-Appellants Diane L. Gruber and Mark Runnels.
Elisa J. Dozono (argued) and Taylor D. Richman, Miller
Nash Graham & Dunn LLP, Portland, Oregon; Steven M.
Wilker (argued) and Megan K. Houlihan, Tonkon Torp LLP,
Portland, Oregon; Michael Gillette, Schwabe Williamson &
Wyatt P.C., Portland, Oregon; for Defendants-Appellees.
Ellen F. Rosenblum, Attorney General; Benjamin Gutman,
Solicitor General; Christopher A. Perdue, Assistant Attorney
General; Department of Justice, Salem, Oregon; for Amicus
Curiae State of Oregon.
Vanessa L. Holton, General Counsel; Robert G. Retana,
Deputy General Counsel; Brady R. Dewar, Assistant General
Counsel; Office of the General Counsel, State Bar of
California, San Francisco, California; for Amicus Curiae
State Bar of California.
Mary R. O’Grady and Kimberly Friday, Osborn Maledon
P.A., Phoenix, Arizona, for Amicus Curiae State Bar of
Arizona.
CROWE V. OREGON STATE BAR 7
OPINION
PER CURIAM:
To practice in Oregon, every lawyer must join and pay
annual membership fees to the Oregon State Bar (“the Bar”
or “OSB”). In these cases, Plaintiffs1 claim these
compulsions violate their freedoms of speech and association
as guaranteed by the First Amendment, made applicable to
the states by the Due Process Clause of the Fourteenth
Amendment.
The district court dismissed all of Plaintiffs’ claims,
concluding that the Bar was immune from suit under the
Eleventh Amendment; that Plaintiffs’ free association and
free speech claims were barred by precedent; and that the
Bar’s objection and refund procedures were constitutionally
adequate. We agree with the district court that precedent
forecloses the free speech claim, but neither the Supreme
Court nor this court has resolved the free association claim
now before us. For the reasons that follow, Plaintiffs may
have stated a viable claim that Oregon’s compulsory Bar
membership requirement violates their First Amendment
right of free association. We accordingly affirm in part,
reverse in part, and remand to the district court with
instructions.
1
“Plaintiffs” refers to Appellants in both No. 19-35463 (Daniel
Crowe, Lawrence Peterson, and the Oregon Civil Liberties Attorneys
(individually referred to as the “Crowe Plaintiffs”)) and No. 19-35470
(Diane Gruber and Mark Runnels (individually referred to as the “Gruber
Plaintiffs”)).
8 CROWE V. OREGON STATE BAR
I. BACKGROUND
A. The Oregon State Bar
“The Oregon State Bar is a public corporation and an
instrumentality of the Judicial Department of the government
of the State of Oregon.” OR. REV. STAT. § 9.010(2). OSB is
an integrated bar, meaning lawyers must join it and pay an
annual membership fee to practice law in Oregon. Id.
§§ 9.160(1), 9.200. OSB is administered by its board of
governors, who may “adopt, alter, amend[,] and repeal” the
Bar’s bylaws. Id. § 9.080. “[A]t all times,” the board must
“serve the public interest” by “[r]egulating the legal
profession and improving the quality of legal services;
[s]upporting the judiciary and improving the administration
of justice; and [a]dvancing a fair, inclusive[,] and accessible
justice system.” Id. The State of Oregon is not responsible
for OSB’s debts. Id. § 9.010(6). Instead, OSB satisfies its
own financial needs and obligations from the membership
fees it collects. Id. § 9.191(3). Subject to oversight by the
Oregon Supreme Court, OSB administers bar exams,
investigates applicants’ character and fitness, formulates and
enforces rules of professional conduct, and establishes
minimum continuing legal education requirements for Oregon
attorneys. Id. §§ 9.210, 9.490, 9.114.
OSB also publishes a monthly Bar Bulletin, which is subject
to the bylaws’ general communications policy:
Communications of the Bar and its constituent
groups and entities, including printed material
and electronic communications, should be
germane to the law, lawyers, the practice of
law, the courts and the judicial system, legal
CROWE V. OREGON STATE BAR 9
education and the Bar in its role as a
mandatory membership organization.
Communications, other than permitted
advertisements, should advance public
understanding of the law, legal ethics and the
professionalism and collegiality of the bench
and Bar.
OSB Bylaws § 11.1.2 OSB’s Chief Executive Officer “has
sole discretion . . . to accept or reject material submitted to
the Bar for publication.” Id. § 11.203. “[P]artisan political
advertising is not allowed[,]” and “[p]artisan political
announcements or endorsements will not be accepted for
publication as letters to the editor or feature articles.” Id.
§ 11.4.
OSB’s legislative and public policy activities must
reasonably relate to any of the following nine subjects:
Regulating and disciplining lawyers;
improving the functioning 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 profession; 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
2
The OSB Bylaws are available at http://www.osbar.org/_docs/
rulesregs/bylaws.pdf.
10 CROWE V. OREGON STATE BAR
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. § 12.1. The Bar maintains that all its communications and
activities are intended to adhere to the above-listed topics,
and considers all these topics germane to its regulatory
purpose.
B. The April 2018 Bulletin Statements
At the heart of Plaintiffs’ suits are two statements
published alongside each other in the April 2018 edition of
the Bulletin, reproduced below in full. The first was
attributed to the Bar, signed by its leaders, and stated as
follows:
Statement on White Nationalism and
Normalization of Violence
As the United States continues to grapple with
a resurgence of white nationalism and the
normalization of violence and racism, the
Oregon State Bar remains steadfastly
committed to the vision of a justice system
that operates without discrimination and is
fully accessible to all Oregonians. As we
pursue that vision during times of upheaval, it
is particularly important to understand current
events through the lens of our complex and
often troubled history. The legacy of that
CROWE V. OREGON STATE BAR 11
history was seen last year in the streets of
Charlottesville, and in the attacks on
Portland’s MAX train. We unequivocally
condemn these acts of violence.
We equally condemn the proliferation of
speech that incites such violence. Even as we
celebrate the great beneficial power of our
First Amendment, as lawyers we also know it
is not limitless. A systemic failure to address
speech that incites violence emboldens those
who seek to do harm, and continues to hold
historically oppressed communities in fear
and marginalization.
As a unified bar, we are mindful of the
breadth of perspectives encompassed in our
membership. As such, our work will continue
to focus specifically on those issues that are
directly within our mission, including the
promotion of access to justice, the rule of law,
and a healthy and functional judicial system
that equitably serves everyone. The current
climate of violence, extremism and exclusion
gravely threatens all of the above. As lawyers,
we administer the keys to the courtroom, and
assist our clients in opening doors to justice.
As stewards of the justice system, it is up to
us to safeguard the rule of law and to ensure
its fair and equitable administration. We
simply cannot lay claim to a healthy justice
system if whole segments of our society are
fearful of the very laws and institutions that
exist to protect them.
12 CROWE V. OREGON STATE BAR
In today’s troubling climate, the Oregon State
Bar remains committed to equity and justice
for all, and to vigorously promoting the law as
the foundation of a just democracy. The
courageous work done by specialty bars
throughout the state is vital to our efforts and
we continue to be both inspired and
strengthened by those partnerships. We not
only refuse to become accustomed to this
climate, we are intent on standing in support
and solidarity with those historically
marginalized, underrepresented and
vulnerable communities who feel voiceless
within the Oregon legal system.
Across the page, a “Joint Statement of the Oregon Specialty
Bar Associations Supporting the Oregon State Bar’s
Statement on White Nationalism and Normalization of
Violence” stated:
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 support the
Oregon State Bar’s Statement on White
Nationalism and Normalization of Violence
and its commitment to the vision of a justice
system that operates without discrimination
and is fully accessible to all Oregonians.
CROWE V. OREGON STATE BAR 13
Through the recent events from the Portland
MAX train attacks to Charlottesville, we have
seen an emboldened white nationalist
movement gain momentum in the United
States and violence based on racism has
become normalized. President Donald Trump,
as the leader of our nation, has himself catered
to this white nationalist movement, allowing
it to make up the base of his support and
providing it a false sense of legitimacy. He
has allowed this dangerous movement of
racism to gain momentum, and we believe this
is allowing these extremist ideas to be held up
as part of the mainstream, when they are not.
For example, President Trump has espoused
racist comments, referring to Haiti and
African countries as “shithole countries” and
claiming that the United States should have
more immigrants from countries like Norway.
He signed an executive order that halted all
refugee admissions and barred people from
seven Muslim-majority countries, called
Puerto Ricans who criticized his
administration’s response to Hurricane Maria
“politically motivated ingrates,” said that the
w h i t e s u pr e ma c i s t s ma r c h i n g i n
Charlottesville, North Carolina in August of
2017 were “very fine people,” and called into
question a federal judge, referring to the
Indiana-born judge as “Mexican,” when the
race of his parents had nothing to do with the
judge’s decision. We are now seeing the white
nationalist movement grow in our state and
our country under this form of leadership.
14 CROWE V. OREGON STATE BAR
As attorneys who lead diverse bar associations
throughout Oregon, we condemn the violence
that has occurred as a result of white
nationalism and white supremacy. Although
we recognize the importance of the First
Amendment of the United States Constitution
and the protections it provides, we condemn
speech that incites violence, such as the
violence that occurred in Charlottesville.
President Trump needs to unequivocally
condemn racist and white nationalist groups.
With his continued failure to do so, we must
step in and speak up.
As attorneys licensed to practice law in
Oregon, we took an oath to “support the
Constitution and the laws of the United States
and of the State of Oregon.” To that end, we
have a duty as attorneys to speak up against
injustice, violence, and when state and federal
laws are violated in the name of white
supremacy or white nationalism. We must use
all our resources, including legal resources, to
protect the rights and safety of everyone. We
applaud the Oregon State Bar’s commitment
to equity and justice by taking a strong stand
against white nationalism. Our bar
associations pledge to work with the Oregon
State Bar and to speak out against white
nationalism and the normalization of racism
and violence.
OSB maintains both Bulletin statements are germane to its
role in improving the quality of legal services. When
CROWE V. OREGON STATE BAR 15
Plaintiffs and other OSB members complained about the
statements, however, the Bar refunded $1.15 to Plaintiffs and
other objectors—the portion of their membership fees used to
publish the April 2018 Bulletin. On appeal, the Bar explains
it paid the refunds because “it has always sought, in
accordance with its Bylaws, to strictly adhere to the standards
of ‘germane’ speech as set forth in Keller . . . . [T]he Bar
sought to avoid even the appearance of funding non-germane
speech, by refunding their proportional dues with interest.”
C. District Court Proceedings
Plaintiffs filed these lawsuits against OSB officials and
OSB itself, alleging the compelled membership and
membership fee requirements violate their First Amendment
rights. Plaintiffs contend that (1) the two statements from the
April 2018 Bulletin are not germane; (2) compelling them to
join and maintain membership in OSB violates their right to
freedom of association; and (3) compelling Plaintiffs to
pay—without their prior, affirmative consent—annual
membership fees to OSB violates their right to freedom of
speech. In addition, the Crowe Plaintiffs alone contend that
the Bar’s constitutionally mandated procedural safeguards for
objecting members are deficient. And the Gruber Plaintiffs
alone continue to argue on appeal that OSB is not entitled to
sovereign immunity from suit.
Below, these cases were referred to a magistrate, who first
determined that OSB (but not the individual OSB officials)
was an “arm of the state” and immune from suit pursuant to
the Eleventh Amendment. The magistrate then held the OSB
statement “was made within the specific context of promotion
of access to justice, the rule of law, and a healthy and
functional judicial system that equitably serves everyone” and
16 CROWE V. OREGON STATE BAR
“[wa]s germane to improving the quality of legal services.”
Assuming the Specialty Bars’ statement could “include[]
political speech that is not germane to a permissible topic,”
the magistrate noted it was not technically attributed to OSB
but rather a “routinely publishe[d] statement[]” in the
Bulletin’s “forum for the exchange of ideas pertaining to the
practice of law.” The magistrate alternatively concluded that,
even assuming the statements contained nongermane speech,
Plaintiffs would still have suffered no constitutional injury
because of OSB’s existing safeguards designed to refund
membership funds misused for political purposes.
The magistrate recommended the district court grant the
Bar’s motions to dismiss and deny the Gruber Plaintiffs’
motion for partial summary judgment. The district court fully
adopted the magistrate’s findings and recommendations and
dismissed these cases. Plaintiffs timely appealed.
II. STANDARD OF REVIEW
The district court had jurisdiction pursuant to 28 U.S.C.
§ 1331 and 28 U.S.C. § 1343. We have jurisdiction under
28 U.S.C. § 1291, and “review de novo a dismissal on the
basis of sovereign immunity or for failure to state a claim
upon which relief can be granted.” Ariz. Students’ Ass’n v.
Ariz. Bd. of Regents, 824 F.3d 858, 864 (9th Cir. 2016).
Moreover, we must “accept the complaint[s’] well-pleaded
factual allegations as true, and construe all inferences in the
plaintiff[s’] favor.” Id.III. DISCUSSION
Plaintiffs raise the same issues that were before the
district court in their appeals. We will begin with Plaintiffs’
CROWE V. OREGON STATE BAR 17
free speech and free association claims. We consider the
parties’ arguments with respect to the germaneness of the
April 2018 Bulletin statements and the adequacy of OSB’s
procedural safeguards as they pertain to Plaintiffs’ free
speech and free association claims. Because we conclude that
Plaintiffs have stated a claim based on their right to free
association, which we must remand to the district court, we
will then address the question of OSB’s immunity from a suit
for damages, a claim only raised by the Gruber Plaintiffs.
A. Free Speech
In Keller v. State Bar of California, 496 U.S. 1, 13–14
(1990), the Supreme Court concluded that a state bar may use
mandatory dues to subsidize activities “germane to those
goals” of “regulating the legal profession and improving the
quality of legal services” without running afoul of its
members’ First Amendment rights of free speech. Id. As a
preliminary matter, Plaintiffs argue that both April 2018
Bulletin statements constitute political speech nongermane to
the Bar’s role in regulating the legal profession. We need not
decide whether the district court erred in concluding that the
Bulletin statements are germane under Keller (or, in the case
of the Specialty Bars’ statement, not attributable to OSB) for
purposes of this appeal because, even assuming both
statements are nongermane, Plaintiffs’ free speech claim fails.
In rejecting the plaintiffs’ free speech claim in Keller, the
Supreme Court subjected integrated bars to “the same
constitutional rule with respect to the use of compulsory dues
as are labor unions.” Keller, 496 U.S. at 13 (adopting Abood
v. Detroit Bd. of Educ., 431 U.S. 209, 234–36 (1977) (holding
that a union may not fund from mandatory fees political or
ideological activities nongermane to its collective bargaining
18 CROWE V. OREGON STATE BAR
duties)). However, the Supreme Court recently overruled
Abood because the “line between chargeable [germane] and
nonchargeable [nongermane] union expenditures has proved
to be impossible to draw with precision,” and because even
union speech germane to collective bargaining “is
overwhelmingly of substantial public concern.” Janus v. Am.
Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct.
2448, 2477, 2481 (2018). Plaintiffs argue that, given Keller’s
reliance on Abood, faithful application of Keller now requires
that we consult Janus in analyzing their Keller claim and
apply exacting scrutiny. See id. at 2477, 2486. According to
Plaintiffs, OSB engages in political and ideological activities
(e.g., the Bulletin statements), so forcing them to pay
mandatory membership fees violates their free speech rights.
Plaintiffs urge that, under Janus, OSB’s membership fee
requirement cannot survive exacting scrutiny, and therefore,
membership fees may only be constitutionally assessed if
attorneys provide prior, affirmative consent.
Given Keller’s instruction that integrated bars adhere to
the same constitutional constraints as unions, 496 U.S. at 13,
Plaintiffs’ argument is not without support. But Keller
plainly has not been overruled. See Janus, 138 S. Ct. at 2498(Kagan, J., dissenting) (noting that “today’s decision does not
question” cases applying Abood, including Keller). Although
Abood’s rationale that Keller expressly relied on has been
clearly “rejected in [another] decision[], the Court of Appeals
should follow the [Supreme Court] case which directly
controls, leaving to [the Supreme] Court the prerogative of
overruling its own decisions.” Agostini v. Felton, 521 U.S.
203, 237 (1997) (quoting Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)). We
are a lower court, and we would be scorning Agostini’s clear
CROWE V. OREGON STATE BAR 19
directive if we concluded that Keller now prohibits the very
thing it permitted when decided.3
In the alternative, the Crowe Plaintiffs alone insist that,
assuming mandatory dues remain constitutionally
permissible, the district court nevertheless erred in
concluding that OSB provides adequate procedural
safeguards. As discussed above, Keller subjected integrated
bars to the same constitutional constraints as unions, allowing
them to use compulsory dues only to regulate attorneys or
improve the quality of their States’ legal professions—but not
for “activities of an ideological nature which fall outside of
those areas of activity.” 496 U.S. at 13–14. Having saddled
integrated bars with this “Abood obligation,” the Court
concluded they could satisfy that obligation “by adopting the
sort of procedures described in Hudson.” Id. at 17(referencing Chicago Teachers Union v. Hudson, 475 U.S.
292 (1986)). At a minimum, Hudson’s safeguards “include
an adequate explanation of the basis for the [compulsory] 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 such challenges are
pending.” Hudson, 475 U.S. at 310.
Here, OSB’s bylaws provide a dispute resolution
procedure for 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
. . . .” OSB Bylaws § 12.600. The objecting member must
3
Because we do not think the Supreme Court has clearly abrogated
or altered Keller’s holding, our precedent likewise bars Plaintiffs’
requested relief as to this claim. See Gardner v. State Bar of Nev.,
284 F.3d 1040, 1042–43 (9th Cir. 2002).
20 CROWE V. OREGON STATE BAR
notify OSB’s Board of Governors, and “[i]f 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.” Id. § 12.601. If the Board disagrees
with the objecting member, it offers binding arbitration
before a neutral decisionmaker who conducts a hearing and
promptly decides “whether the matters at issue are acceptable
activities for which compulsory fees may be used under
applicable constitutional law.” Id. § 12.602. If the objector
prevails, OSB pays the same refund described above;
conversely, if OSB prevails, the matter is closed. Id.
The Crowe Plaintiffs argue that OSB’s procedures are
deficient because (1) OSB does not provide an independently
audited report4 explaining how mandatory dues are
calculated; and (2) OSB does not provide the required escrow
procedure. We disagree.
First, to the extent the Crowe Plaintiffs urge us to require
wholesale application of the procedures in Hudson in this
context, we decline to do so. Nowhere does Keller require
state bars to adopt procedures identical to or commensurate
with those outlined in Hudson. 496 U.S. at 17 (“[A]n
integrated bar could certainly meet its Abood obligation by
adopting the sort of procedures described in Hudson.”)
(emphasis added). Indeed, the Court in Keller explicitly
recognized that it lacked the “developed record” available in
Hudson and accordingly held that “[q]uestions [of] whether
one or more alternative procedures would likewise satisfy that
obligation are better left for consideration upon a more fully
developed record.” Id. Thus, we decline to require an
4
Plaintiffs concede that OSB publishes information about its
allocation of membership fees each year.
CROWE V. OREGON STATE BAR 21
independently audited report and escrow solely because
Hudson required as much.
Nor are we persuaded that adherence to Hudson is
necessary––or even effective—to minimize infringement
here. With respect to the independent audit, Hudson required
this high-level explanation in the context of a union that
affirmatively planned to engage in activities unrelated to
collective bargaining for which it could only charge its
members. 475 U.S. at 298. The Court obligated the union to
provide a detailed statement of fees in advance so that
nonmembers could object before being charged for
impermissible activities. Id. at 305–07. Hudson fashioned
the escrow requirement for the same reason––to “avoid the
risk that [nonmembers’] funds will be used, even temporarily,
to finance ideological activities unrelated to collective
bargaining.” Id. at 305.
The Crowe Plaintiffs do not allege any similarly
affirmative plans by OSB to use Bar members’ dues for
nongermane purposes. Indeed, OSB maintains a policy
mandating that dues be used for germane activities and
communications. See, e.g., OSB Bylaws §§ 11.1, 12.1. As
a practical matter, then, advance notice would not have
offered additional protection against the alleged constitutional
violations because OSB would have characterized all of its
activities as germane.5 Similarly, an escrow requirement
would not further minimize risk of infringement because,
5
We recognize that there is an argument to be made regarding the
propriety of permitting OSB to define for itself what is germane. That is
not before us. Moreover, such an argument does not alter the fact that
advance notice in this case would not have prevented Plaintiffs’ asserted
constitutional injury.
22 CROWE V. OREGON STATE BAR
unlike in Hudson, the allegedly impermissible speech is only
identifiable after the fact.
A refund, which Plaintiffs received here, is the only
meaningful remedy for Plaintiffs’ alleged injuries. Under the
circumstances, OSB provides procedures adequately tailored
to “minimize the infringement” of its members’ First
Amendment rights. Hudson, 475 U.S. at 303. Indeed, we
have observed, albeit in dicta, that “allow[ing] members to
seek a refund of the proportion of their dues that the State Bar
has spent on political activities unrelated to its regulatory
function” complies with Keller. Morrow v. State Bar of
California, 188 F.3d 1174, 1175 (9th Cir. 1999). OSB clearly
provides that process here.
In sum, nothing in Keller mandates a strict application of
the Hudson procedures. Indeed, an application of such
procedures here would not have provided greater protections
for Plaintiffs. As alleged, the OSB’s refund process is
sufficient to minimize potential infringement on its members’
constitutional rights. We therefore affirm the district court as
to Plaintiffs’ free speech claim and the adequacy of OSB’s
procedural safeguards with respect to protecting Plaintiffs’
free speech rights.
B. Free Association
In Oregon, “a person may not practice law . . . unless the
person is an active member of the Oregon State Bar.” OR.
REV. STAT. § 9.160(1). Plaintiffs claim that because OSB
engages in nongermane political activity like the Bulletin
statements, this membership requirement violates their
freedom of association under the First and Fourteenth
Amendments. We first must decide whether the district court
CROWE V. OREGON STATE BAR 23
erred by concluding this claim was foreclosed by existing
precedent.
1. Does existing precedent foreclose Plaintiffs’ Free
Association claim?
In Keller, the Supreme Court expressly declined to
address the “freedom of association claim” that attorneys
“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 and Abood.” 496 U.S. at 17. Keller
explained this unaddressed claim was “much broader . . . than
[the claim] at issue in Lathrop.” Id. (discussing Lathrop v.
Donohue, 367 U.S. 820 (1961)). Plaintiffs here insist they
have presented precisely this yet-to-be-resolved free
association claim. The district court concluded that Lathrop
and Keller foreclosed Plaintiffs’ association claim, so we
examine those cases in turn.
In Lathrop, a plurality of the Supreme Court held:
[T]he Supreme Court of Wisconsin, in order
to further the State’s legitimate interests in
raising the quality of professional services,
may constitutionally require that the costs of
improving the profession in this fashion
should be shared by the subjects and
beneficiaries of the regulatory program, the
lawyers, even though the organization created
to attain the objective also engages in some
legislative activity.
24 CROWE V. OREGON STATE BAR
367 U.S. at 843. On its own terms, Lathrop’s “free
association” decision was limited to “compelled financial
support of group activities,” id. at 828; the Court emphasized
that “[t]he only compulsion to which [Lathrop] ha[d] been
subjected by the integration of the bar [wa]s the payment of
the annual dues of $15 per year.” Id. at 828 (“We therefore
are confronted . . . only with a question of compelled financial
support of group activities, not with involuntary membership
in any other aspect.”) (emphasis added).6
Lathrop also complained that the Wisconsin Bar engaged
in lobbying. See Lathrop, 367 U.S. at 827. But the Lathrop
plurality presumed, on the bare record before it, that all the
bar’s activities, including lobbying, related to “the regulatory
program” of “improving the profession.” Id. at 843. In other
words, from what little the Lathrop plurality could divine,
even the bar’s lobbying was germane to the regulatory
purposes justifying compelled financial association in the first
place. Id. Lathrop’s ultimate conclusion was deliberately
limited: a state “may constitutionally require that the costs of
improving the profession in this fashion should be shared by
the subjects and beneficiaries of the regulatory program.” Id.At bottom, Lathrop merely permitted states to compel
practicing lawyers to pay toward the costs of regulating their
profession. See Keller, 496 U.S. at 9 (discussing “the limited
scope of the question [Lathrop] was deciding”).
6
The Supreme Court framed its decision in this way even though
Lathrop’s actual free association claim was similar to the broader one
Plaintiffs raise here. Lathrop, 367 U.S. at 827 (“The core of appellant’s
argument is that he cannot constitutionally be compelled to join . . . an
organization which . . . utilizes its property, funds and employees for the
purposes of influencing legislation and public opinion toward
legislation.”).
CROWE V. OREGON STATE BAR 25
Decades later, the Court revisited the issue in Keller. As
discussed above, Keller, like Lathrop, concluded that states
could compel practicing attorneys to pay dues to an integrated
bar but that those dues could only “constitutionally fund
activities germane to those goals” of “regulating the legal
profession and improving the quality of legal services.” Id.at 13–14. Keller then augmented the constitutional analysis,
prohibiting integrated bars from funding with mandatory dues
“activities having political or ideological coloration which are
not reasonably related to the advancement of [its regulatory]
goals.” Id. at 15. In a later compelled speech case, the
Supreme Court explained that “[t]he central holding in Keller
. . . was that the objecting members were not required to give
speech subsidies for matters not germane to the larger
regulatory purpose which justified the required association.”
United States v. United Foods, Inc., 533 U.S. 405, 414 (2001)
(emphasis added).
Crucially, Keller expressly declined to address the
petitioners’ separate free association claim: “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 and Abood.” Keller, 496 U.S. at 17. Keller
acknowledged this was “a much broader freedom of
association claim than was at issue in Lathrop.” Id.(explaining that the Keller petitioners’ free association claim
challenged more than “their ‘compelled financial support of
group activities’” (quoting Lathrop, 367 U.S. at 828)). Keller
and Lathrop thus speak for themselves: the Supreme Court
has never resolved this broader free association claim based
on compelled bar membership.
26 CROWE V. OREGON STATE BAR
Nor have we. In Morrow, the “plaintiffs complain[ed]
that by virtue of their mandatory State Bar membership, they
[we]re associated in the public eye with viewpoints they d[id]
not in fact hold . . . [which] violate[d] their First Amendment
rights to free association.” 188 F.3d at 1175 (“The issue is
whether plaintiffs’ First Amendment rights are violated by
their compulsory membership in a state bar association that
conducts political activities beyond those for which
mandatory financial support is justified.”). This is,
essentially, the same claim Plaintiffs raise here. Just like the
instant claim, the Morrow plaintiffs raised the “much broader
freedom of association claim” that Keller and Lathrop left
unresolved. See Morrow, 188 F.3d at 1177 (“Plaintiffs
nevertheless contend that language in Keller leaves open the
question whether membership alone may cause the public to
identify plaintiffs with State Bar positions in violation of
plaintiffs’ First Amendment rights.”). Nevertheless, we did
not resolve that claim.
When we reached the Morrow plaintiffs’ association
claim, we essentially reformulated it: “[h]ere, plaintiffs do not
allege that they are compelled to associate in any way with
the California State Bar’s political activities.” Id. By
reformulating the claim, Morrow held that the claim before it
was “no broader than that in Lathrop,” and noted “[t]he claim
reserved in Keller was a broader claim of violation of
associational rights than was at issue in either Lathrop or in
this case.” Id. Our avoidance of this broader free association
claim cannot preclude Plaintiffs’ efforts to resolve it here.
Accordingly, Plaintiffs raise an issue that neither the
Supreme Court nor we have ever addressed: whether the First
Amendment tolerates mandatory membership itself—
independent of compelled financial support—in an integrated
CROWE V. OREGON STATE BAR 27
bar that engages in nongermane political activities. In
concluding that precedent foreclosed this claim, the district
court erred.
2. Plaintiffs’ free association claim is viable.
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 (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 (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 (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. 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.
Plaintiffs’ freedom of association claim based on the
April 2018 Bulletin statements is viable. Because the district
court erred in dismissing this claim as foreclosed by our
precedent, we reverse and remand.
On remand, there are a number of complicated issues that
the district court will need to address. To begin, the district
28 CROWE V. OREGON STATE BAR
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, 139 S. Ct. 590 (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. To avoid issuing an
advisory opinion, we defer consideration of these issues at
this stage of the case. See Ball v. Rodgers, 492 F.3d 1094,
1119 (9th Cir. 2007) (declining to address an issue “at this
time” until after the district court has an opportunity to
review on remand in light of the court’s instructions related
to separate issues).
C. Sovereign Immunity
As set forth above, the district court adopted the
magistrate’s recommendation, in which the magistrate
determined that OSB is “an arm of the state entitled to
Eleventh Amendment Immunity.” Although the magistrate
cited several district court decisions and unpublished Ninth
Circuit dispositions7 that have alluded to this conclusion, this
is a matter of first impression before this court. The Eleventh
Amendment bars, with a few exceptions (see, e.g., Ex parte
7
Of note, the district court cited to our unpublished disposition in
Eardley v. Garst, 232 F.3d 894 (9th Cir. 2000). Our circuit rules prohibit
citations to unpublished dispositions issued prior to January 1, 2007
except in limited circumstances, none of which are present here. See 9th
Cir. R. 36.
CROWE V. OREGON STATE BAR 29
Young, 209 U.S. 123 (1908)), federal suits against
unconsenting states, their agencies, and their officers
“regardless of the nature of the relief sought.” Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
“[N]ot all state-created or state-managed entities are immune
from suit in federal court . . . . an entity may be organized or
managed in such a way that it does not qualify as an arm of
the state entitled to sovereign immunity.” Durning v.
Citibank, N.A., 950 F.2d 1419, 1423 (9th Cir. 1991).
In State ex rel. Frohnmayer v. Oregon State Bar, the
Oregon Supreme Court held that OSB is a state agency as
defined by its public records law. 767 P.2d 893, 895 (Or.
1989); see also OR. REV. STAT. § 192.311(6) (“‘State
Agency’ means any state officer, department, board,
commission or court created by the Constitution or statutes of
this state . . . .”). And we acknowledge that the Oregon
Supreme Court “is the final authority on the ‘governmental’
status of the [Bar] for purposes of state law. But its
determination . . . is not binding on [federal courts] when . . .
[deciding] a federal question.” Keller, 496 U.S. at 11. We
think that Frohnmayer has answered, definitively, an
important question: Is the Oregon State Bar a state actor?
The Oregon Supreme Court has said “Yes,” and that means
that OSB is bound by those provisions of the U.S.
Constitution that bind state actors, such as the First
Amendment, and the Due Process and Equal Protection
Clauses of the Fourteenth Amendment. See, e.g., Burton v.
Wilmington Parking Auth., 365 U.S. 715, 717 (1961).
Finding that an entity is the “state” for purposes of the First
Amendment or the Due Process and Equal Protection
Clauses, however, is not the same as concluding that the
entity is the “state” for purposes of the Eleventh Amendment.
See, e.g., Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658,
30 CROWE V. OREGON STATE BAR
690 n.54 (1978) (explaining there is no “ basis for concluding
that the Eleventh Amendment is a bar to municipal liability”
in § 1983 suits). We recently discussed the different tests for
state action and, as we will see, they are quite different from
our consideration of factors required for sovereign immunity.
See Pasadena Republican Club v. W. Just. Ctr., —F.3d—,
2021 WL 235775, at *4 (9th Cir. Jan. 25, 2021) (listing
various tests for state action). Accordingly, Frohnmayer does
not answer the question before us: Whether OSB is an arm
of the state entitled to immunity under the Eleventh
Amendment.
To determine whether OSB, which is “an instrumentality
of the . . . government of the State of Oregon,” OR. REV.
STAT. § 9.010(2), is an arm of the state entitled to immunity,
we apply the Mitchell framework. See Mitchell v. L.A. Cmty.
Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1988). The Mitchell
factors are as follows:
[1] whether a money judgment would be
satisfied out of state funds, [2] whether the
entity performs central governmental
functions, [3] whether the entity may sue or
be sued, [4] whether the entity has the power
to take property in its own name or only the
name of the state, and [5] the corporate status
of the entity. To determine these factors, the
court looks to the way state law treats the
entity.
Id. (citation omitted). OSB “bear[s] the burden of proving the
facts that establish its immunity under the Eleventh
Amendment.” ITSI TV Prods., Inc. v. Agric. Ass’ns, 3 F.3d
1289, 1292 (9th Cir. 1993). We conclude that, on the whole,
CROWE V. OREGON STATE BAR 31
the factors weigh against finding OSB an “arm of the state”
entitled to immunity.
1. Vulnerability of the State’s treasury
The first factor—whether a money judgment would be
satisfied out of state funds—weighs strongly against
immunity because Oregon law clearly answers this question
in the negative. OR. REV. STAT. § 9.010(6) (“No obligation
of any kind incurred or created under this section shall be, or
be considered, an indebtedness or obligation of the State of
Oregon.”).
In this circuit, “the source from which the sums sought by
the plaintiff must come is the most important single factor in
determining whether the Eleventh Amendment bars federal
jurisdiction.” Durning, 950 F.2d at 1424 (citing Rutledge v.
Ariz. Bd. of Regents, 660 F.2d 1345, 1349 (9th Cir. 1981);
Ronwin v. Shapiro, 657 F.2d 1071, 1073 (9th Cir. 1981);
Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982)).
Unlike the district court, we are not inclined to discount the
importance of this factor.8 Although it is true that “[t]he
Eleventh Amendment does not exist solely . . . to prevent
federal-court judgments that must be paid out of a State’s
treasury,” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58
(1996) (cleaned up), “the vulnerability of the State’s purse
[i]s the most salient factor in Eleventh Amendment
determinations.” Hess v. Port Auth. Trans-Hudson Corp.,
8
The district court suggested that this factor carries less weight in
cases for primarily equitable relief. But even assuming such a distinction
bears on the weight of this factor, it has little effect here as both
complaints seek the return of OSB membership fees Plaintiffs have paid
during the statute of limitations period.
32 CROWE V. OREGON STATE BAR
513 U.S. 30, 48 (1994). Indeed, as the Supreme Court
acknowledged in Hess, “the vast majority of Circuits . . . have
generally accorded this factor dispositive weight.” 513 U.S.
at 49 (internal quotation marks omitted). We certainly have,
see Durning, 950 F.2d at 1424 (citing cases).
Nor are we persuaded by the district court’s observation
that, “[d]espite the fact the Bar alone is responsible for any
money damages it may incur. . . . [a]ny money judgment
would come from the Bar’s collection of fees that is made
possible because the State authorized the Bar to collect those
fees.” Rather, we find OSB’s collection of dues weighs
against immunity, for like the bar in Keller, OSB’s “principal
funding comes, not from appropriations made to it by the
legislature, but from dues levied on its members by the board
of governors.” 496 U.S. at 11.9
In short, Oregon law expressly disavows State financial
responsibility for OSB, which is funded by membership fees.
Therefore, the first and most important Mitchell factor weighs
strongly against immunity.
2. Central government functions
Mitchell’s second factor, “whether the entity performs
central governmental functions,” is a closer call, but we
conclude that it weighs slightly against immunity. Mitchell,
861 F.2d at 201. To be sure, OSB, “an instrumentality of
9
The district court further opined, in a footnote, that if Plaintiffs
succeeded in eliminating mandatory membership fees, the regulatory costs
to the State would correspondingly increase. These concerns, however
well-intentioned, exceed the proper scope of this first factor’s inquiry:
Whether a money judgment would be satisfied out of state funds.
CROWE V. OREGON STATE BAR 33
[Oregon’s] Judicial Department,” performs important
government functions. OR. REV. STAT. § 9.010(2). The
district court detailed how the Bar, subject to the review and
direction of the Oregon Supreme Court, manages bar
examinations and attorney admissions, discipline,
resignations, and reinstatements; and how the Oregon
Supreme Court approves changes to some OSB bylaws,
adopts rules of professional conduct, reviews OSB’s annual
financials, and approves its budget for certain activities.
We agree that OSB “undoubtedly performs important and
valuable services for the State by way of governance of the
profession.” Keller, 496 U.S. at 11. But like the integrated
bar in Keller, “those services are essentially advisory in
nature.” Id. Integrated bars are “a good deal different from
most other entities that would be regarded in common
parlance as governmental agencies.” Id. (internal quotation
marks omitted). OSB “was created, not to participate in the
general government of the State, but to provide specialized
professional advice to those with the ultimate responsibility
of governing the legal profession.” Id. at 13. And although
Keller never specifically addressed sovereign immunity, its
analysis is pertinent and analogous to the immunity question
here. Keller identified (after a lengthy discussion)
constitutionally significant differences between an integrated
bar and “traditional government agencies and officials.” Id.On that basis, the Supreme Court rejected the argument that
“the bar is considered a governmental agency” that is
“exempted . . . from any constitutional constraints on the use
of its dues.” Id. at 10. Indeed, this was the principal basis on
which the Supreme Court reversed the California Supreme
Court in Keller. Id. at 11–13.
Moreover, the second Mitchell factor inquiry must be
guided by “[t]he treatment of the entity under state law.”
34 CROWE V. OREGON STATE BAR
Durning, 950 F.2d at 1426. The Gruber Plaintiffs point out
that under Oregon law, the Oregon Supreme Court—not
OSB—makes final decisions on admitting attorneys,
disciplining attorneys, and adopting rules of professional
conduct. These same considerations convinced the Supreme
Court in Keller that the California bar was not “the typical
government official or agency,” but rather a professional
association that provided recommendations to the ultimate
regulator of the legal profession. 496 U.S. at 11–12
(reversing the California Supreme Court’s conclusion to the
contrary). The Oregon Supreme Court exerts the same direct,
regulatory control over Oregon attorneys. See Ramstead v.
Morgan, 347 P.2d 594, 601 (Or. 1959) (“No area of judicial
power is more clearly marked off . . . than the courts’ power
to regulate the conduct of the attorneys who serve under it.”).
Given OSB’s similarity to the integrated bar in Keller, we
find that the second Mitchell factor weighs slightly against
immunity.10 We note that even if we were inclined to
discount Keller––which we cannot––and view OSB’s
functions as central government functions, the second
Mitchell factor is, at most, a wash for OSB because the
remaining four factors weigh against immunity.
3. Power to sue or be sued
Oregon law unequivocally imparts to OSB the power to
sue and be sued. OR. REV. STAT. § 9.010(5). This factor thus
10
Our pre-Mitchell decisions in O’Connor v. State of Nevada,
686 F.2d 749, 750 (9th Cir. 1982) and Ginter v. State Bar of Nevada
625 F.2d 829, 830 (9th Cir. 1980) do not require a contrary result. Neither
opinion offers an explanation as to why the Nevada state bar is an arm of
the state. More importantly, our present inquiry concerns Oregon’s state
bar––not Nevada’s.
CROWE V. OREGON STATE BAR 35
militates against immunity. The district court nevertheless
reasoned to the contrary because Oregon law elsewhere
provides civil immunity to the Bar and its officials in the
performance of their duties related to admissions, licensing,
reinstatements, disciplinary proceedings, and client security
fund claims. OR. REV. STAT. §§ 9.537(2), 9.657. We are not
persuaded that limited grants of immunity for specific
functions cancel out the clear statutory grant of the power to
sue or be sued. In any event, we have recognized that
although this factor warrants “some consideration, [it] is
entitled to less weight than the first two factors.” Belanger v.
Madera Unified Sch. Dist., 963 F.2d 248, 254 (9th Cir. 1992).
As such, this factor weighs slightly against immunity.
4. Power to take property in its own name
It is clear that OSB may “enter into contracts and lease,
acquire, hold, own, encumber, insure, sell, replace, deal in
and with and dispose of real and personal property.” OR.
REV. STAT. § 9.010(5). This factor accordingly weighs
against immunity.
5. Corporate status
“[OSB] is a public corporation and an instrumentality of
. . . the State.” Id. § 9.010(2). But because the Bar appoints
its own leaders, amends most of its bylaws, and manages its
internal affairs, OSB “is a corporate entity sufficiently
independent from the state.” Durning, 950 F.2d at 1428. Our
decision in Durning is illustrative here. There, the Wyoming
Community Development Authority was “a body corporate
operating as a state instrumentality operated solely for the
public benefit” and its board was government appointed. Id.
at 1427 (emphasis in original). Yet Durning concluded the
36 CROWE V. OREGON STATE BAR
fifth Mitchell factor weighed against immunity. Id. at 1428.
We reach the same conclusion here, for OSB is even more
independent than the Authority in Durning. OSB’s Board of
Governors, for instance, are not government appointed. OR.
REV. STAT. § 9.025(1)(a). The Board appoints OSB’s CEO.
Id. § 9.055. And OSB “has the authority to . . . regulat[e] and
manag[e] . . . [its own affairs].” Id. § 9.080(1).
***
In sum, three factors, including the first and most
important, weigh against immunity and the other two still
lean slightly against immunity. The Mitchell factors thus
compel the conclusion that OSB is not an “arm of the state”
entitled to immunity. We note that even viewing two factors
as neutral, OSB has not met its burden to prove immunity.
IV. CONCLUSION
In light of the foregoing, the district court is AFFIRMED
IN PART, REVERSED IN PART, and these cases are
REMANDED for further proceedings consistent with this
opinion.
VANDYKE, Circuit Judge, concurring in part and dissenting
in part:
I agree with and concur in the entirety of the panel’s
opinion in these cases, except its resolution of the Crowe
Plaintiffs’ inadequate procedural safeguards claim based on
Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986).
CROWE V. OREGON STATE BAR 37
At first blush, it’s not obvious to me that the Bar’s
existing after-the-fact safeguards, which no one disputes fail
to comply with the Supreme Court’s direction in Hudson,
adequately “prevent[] compulsory subsidization of
ideological activity by” objecting bar members. Id. at 302(quoting Abood v. Detroit Bd. of Educ., 431 U.S. 209, 237
(1977)). As the panel’s opinion correctly concludes, even
though the Supreme Court seems to have moved on from the
Abood rationale upon which its Keller decision relied, we
must still follow Keller and thus reject Plaintiffs’ free speech
claims in these cases. But I don’t think that requires us to go
further and ignore that the Supreme Court has now concluded
even Hudson’s minimal safeguards are not enough in other
contexts. See Janus v. Am. Fed’n of State, Cnty., & Mun.
Emps., Council 31, 138 S. Ct. 2448, 2482, 2486 (2018)
(concluding that “the Hudson notice in the present case and
in others that have come before us do not begin to permit”
objectors to protect their First Amendment rights, and
overruling Abood).
Given these developments in the law, it is hard for me to
see how something less than Hudson’s safeguards could
suffice in the context of compulsory bar membership dues.
Keller said that “an integrated bar could certainly meet its
Abood obligation by adopting the sort of procedures
described in Hudson,” Keller v. State Bar of California,
496 U.S. 1, 17 (1990), which of course we are bound by until
the Supreme Court tells us otherwise. See Agostini v. Felton,
521 U.S. 203, 237 (1997). But Keller never addressed what
procedures less protective than those required by Hudson
would suffice. Even assuming some type(s) of less protective
procedures might have been defensible before Janus
overruled Abood, it doesn’t strike me as very defensible now
that the Supreme Court has told us Hudson’s procedures are
38 CROWE V. OREGON STATE BAR
no longer sufficient in other contexts. Following Keller and
Janus and Agostini, it may be that Hudson’s requirements are
now both a floor and a ceiling for integrated bars—at least
until the Supreme Court gives us more guidance.
Ultimately, however, I would address the Crowe
Plaintiffs’ inadequate safeguards claim by not doing so in this
appeal. We are remanding Plaintiffs’ free association claim,
and if on remand they prevail on that claim, 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. To avoid issuing an advisory opinion, I
would defer consideration of this issue. See Ball v. Rodgers,
492 F.3d 1094, 1119 (9th Cir. 2007) (declining to address a
claim “at this time,” and waiting until after the district court
on remand reviews the claim anew in light of our court’s
instructions on separate issues that could affect that claim).
Accordingly, I respectfully dissent on this singular claim.