Ninth Circuit Sends Mandatory Bar Membership Question Back to Federal Court

An Oregon lawyer will get to argue that lawyers shouldn’t be required to join the state bar, in light of a 2018 statement the bar made condemning white supremacy that he says violated his First Amendment right to free association.

The Ninth U.S. Circuit Court of Appeals in San Francisco. (Photo credit: Sanfranman59/Wikipedia)

(CN) — Can the Oregon State Bar require lawyers to maintain membership, even though it runs political columns in its monthly Bulletin that they might not agree with? It’s a question that the Ninth Circuit on Friday ordered a federal judge to consider.

In its April 2018 edition, the Oregon State Bar ran two lengthy “statements” in its monthly Bulletin, condemning white nationalism and faulting then-President Donald Trump for promoting racism and the “normalization of violence.”

The first statement referenced the Unite the Right Rally in Charlottesville the previous year, where a torch-bearing white supremacist mob rallied and a man drove a car into a crowd of counter-protesters, injuring dozens and killing Heather Heyer. 

The second statement mentioned the May 2017 train stabbings in Portland where a man in the midst of a racist rant attacked three passengers, killing two.

The first, attributed to the bar, condemned “the proliferation of speech that incites such violence.”

“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.”

An accompanying statement from Oregon specialty bar associations like the Asian Pacific American Bar Association, the Oregon Women Lawyers and the Oregon Minority Lawyers Association, said Trump had “catered to this white nationalist movement” and called on him to “unequivocally condemn racist and white nationalist groups. With his continued failure to do so, we must step in and speak up.”

But some members of the state bar took issue with the statements. Attorneys Daniel Crowe, Lawrence Peterson and others complained that their dues had paid for statements they didn’t agree with. The bar responded with refunds amounting to $1.15 each: the amount the bar calculated each member had paid to produce the April edition of the Bulletin.

Unsatisfied, Crowe and Peterson sued. They claimed the statements were not germane to the bar’s work to improve legal services in Oregon, that they shouldn’t be required to pay annual membership fees to an association that publishes political statements they don’t agree with, and that requiring them to join the bar in the first place is a violation of their right to freedom of association.

U.S. District Judge Michael Simon rejected their arguments, adopting a magistrate’s determination that the statements were “germane to improving the quality of legal services,” that the Bulletin is a “forum for the exchange of ideas pertaining to the practice of law,” and that the bar’s policy of refunding membership dues misused for political purposes protected the constitutional rights of the members who had complained.

Simon dismissed the case.

On appeal, a three-judge panel of the Ninth Circuit agreed with the dismissal of all of Crowe and Peterson’s claims save one: those made on the basis of free association. The judges found that the question of whether Oregon law can require attorneys to maintain membership in a bar association that engages in unnecessary political speech has not yet been resolved by case precedent. The unsigned per curiam opinion sent that single question back to Judge Simon for consideration.

“Plaintiffs may have stated a viable claim that Oregon’s compulsory Bar membership requirement violates their First Amendment right of free association,” wrote Circuit Judge Jay Bybee and U.S. District Judge Kathleen Cardone, sitting by designation from the Western District of Texas. Both were appointed by George W. Bush.

“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 bar that engages in nongermane political activities,” the judges wrote. “In concluding that precedent foreclosed this claim, the district court erred.”

In a partial dissent, Circuit Judge Lawrence VanDyke, a Trump appointee, questioned whether the refunds were sufficient. While the majority called a refund “the only meaningful remedy for Plaintiffs’ alleged injuries,” VanDyke said that didn’t go far enough. But he stopped short of addressing that insufficiency.

“Ultimately, however, I would address the plaintiffs’ inadequate safeguards claim by not doing so in this appeal,” VanDyke wrote. “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 plaintiffs currently challenge, I don’t think it is necessary that we review those procedures at this stage of the case.”

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