If ongoing litigation in Texas, North Dakota and Oklahoma follows a similar pathway as two recently dismissed cases that challenged the constitutionality of the Oregon State Bar, then it would be good news for mandatory bar associations.
In Oregon, Oklahoma, North Dakota and Texas, attorneys sued their state bars, bar officers and directors, alleging that mandatory bar membership and compulsory dues violate the U.S. Constitution’s First and Fourteenth Amendments.
The plaintiffs have claimed the bar associations were spending dues on alleged political and ideological activities, without their consent, which they argued is unconstitutional under a 2018 U.S. Supreme Court case, Janus v. AFSCME.
But bar associations have countered that they have sovereign immunity, that Janus doesn’t apply to the bar, and that all of their activities are constitutional under previous U.S. Supreme Court case law that’s specific to bar associations.
Their arguments worked in Oregon.
U.S. District Judge Michael H. Simon on May 24 adopted a magistrate judge’s findings and dismissed the cases Gruber v. Oregon State Bar and Crowe v. Oregon State Bar, finding that the bar has sovereign immunity, and that the plaintiffs have no cognizable constitutional claims.
“As the law currently stands with respect to integrated bars, compulsory fees and mandatory membership do not violate the First and Fourteenth Amendments,” said the findings and recommendation by U.S. Magistrate Judge Jolie Russo. “This is true even if the bar engages in political speech so long as the speech is germane to regulating the legal profession and improving the quality of legal services.”
Russo found the bar has sovereign immunity and although the individual defendants wouldn’t enjoy the same immunity, the court also determined the Oregon bar operates constitutionally under bar-specific U.S. Supreme Court precedent in two cases—Lathrop v. Donohue and Keller v. State Bar of California. Russo noted that only the Supreme Court could overrule its own decisions.
Oregon bar spokeswoman Kateri Walsh wrote in an email that the bar believes the court made the correct ruling.
“The legal profession has unique obligations to the public, which are best met through the unified bar model with its rigorous focus on both public protection and support for a strong and fully accessible justice system,” she said.
But Jacob Huebert, senior attorney at the Goldwater Institute in Phoenix, who represented the plaintiffs Crowe, said he’s disappointed and disagrees with the ruling, which the plaintiffs plan to appeal to the U.S. Court of Appeals for the Ninth Circuit.
“We hope that the United States Supreme Court will resolve this issue for the entire country, and if it followed the principles stated in Janus v. AFSCME, then the forced funding of these mandatory bar associations should end nationwide,” Huebert said. “We’ll continue to pursue this case and our cases on this issue in other courts until the Supreme Court rules that lawyers have the right to decide for themselves whether to fund bar association politics.”
Mike Spencer, a solo practitioner in Klamath Falls, Oregon, who represented the plaintiffs in Gruber, said his clients also plan to appeal. He’s closely watching Fleck v. Wetch, the North Dakota case, because there’s an oral argument scheduled June 13 before the U.S. Court of Appeals for the Eighth Circuit.
Spencer said, “Maybe that one will get to the Supreme Court and give us an answer.”
Read the findings and recommendation.