Gruber v. Or. State Bar

DIANE L. GRUBER and MARK RUNNELS, Plaintiffs, v. OREGON STATE BAR, a Public Corporation; VANESSA A. NORDYKE, President of the Oregon State Bar; and HELEN HIERSCHBIEL, Chief Executive Officer of the Oregon State Bar. Defendants.

No. 3:18-cv-1591-JR

United States District Court, D. Oregon

May 16, 2022

Michael L. Spencer, MICHAEL L. SPENCER LLC, Of Attorneys for Plaintiffs.

Steven M. Wilker and Paul M. Balmer, TONKON TORP LLP, Attorneys for Defendants.

OPINION AND ORDER

Michael H. Simon, District Judge.

Plaintiffs are a current and a former member of the Oregon State Bar (OSB). Membership in the OSB is mandatory to practice law in the state of Oregon. Plaintiffs bring this suit against the OSB, its President, and its Chief Executive Officer. Plaintiffs allege that compulsory membership in the OSB violates Plaintiffs' speech and association rights under the First Amendment, made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Plaintiffs' Complaint cites two statements published in 2018 in the monthly OSB Bulletin relating to the rise of white nationalism. Plaintiffs allege that these published letters are improper political speech by the OSB with which Plaintiffs do not wish to be associated.

The Court previously granted Defendants' motion to dismiss. The Ninth Circuit affirmed dismissal of Plaintiffs' free speech claim but remanded the dismissal of Plaintiff's associational rights claim because neither the United States Supreme Court nor the Ninth Circuit has yet directly addressed a broad claim of freedom of association based on mandatory bar membership in “an integrated bar that engages in nongermane political activities.” Crowe v. Or. State Bar, 989 F.3d 714, 729 (9th Cir. 2021).^[1] In that decision, the Ninth Circuit noted that the district court would need to resolve what standard governs such an associational rights claim, whether the OSB could meet that standard, and whether the germaneness framework for speech in the context of mandatory bar dues also applies to an associational rights claim. Before the Court resolved these questions on remand, Plaintiffs filed an early motion for summary judgment, arguing that there are no disputed issues of fact that the OSB's compulsory membership violates Plaintiffs' associational rights. Plaintiffs' motion, however, focuses on the OSB's general membership structure and does not reference the OSB's alleged nongermane political activity, the articles posted in the Bulletin, or any other specific conduct by the OSB with which Plaintiffs do not wish to be associated. Instead, Plaintiffs challenge the inherent structure of a mandatory integrated bar as violating their rights freely to associate or not associate.

United State Magistrate Judge Jolie A. Russo issued Findings and Recommendation, recommending that this Court deny Plaintiffs' motion for summary judgment. Plaintiffs timely objected, requiring de novo review by this Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P 72(b)(3).

STANDARDS

A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment, ” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient ....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

BACKGROUND

With some exceptions, “a person may not practice law in [Oregon], or represent that the person is qualified to practice law in this state, unless the person is an active member of the Oregon State Bar.” Or. Rev. Stat. (ORS) § 9.160. The OSB's Board of Governors may sue a person believed to be practicing law who is not a member of the OSB, and “[t]he court shall enjoin any person violating ORS 9.160 from practicing law without a license.” ORS § 9.166.

Generally, members of the OSB must pay annual dues and active members must pay for mandatory liability insurance under the OSB's professional liability fund. ORS § 9.191. Members may request to resign their membership, but the resignation will not be effective unless and until approved by the Oregon Supreme Court. ORS § 9.261. This requirement exists so that it can be determined whether there are any open disciplinary charges or investigations, criminal charges, or other complaints against an OSB member. See Or. State Bar R. of P. 9.1 (2021). The OSB and its Board of Governors are directed by statute to “serve the public interest by: (a) Regulating the legal profession and improving the quality of legal services; 1(b) Supporting the judiciary and improving the administration of justice; and (c) Advancing a fair, inclusive and accessible justice system.” ORS § 9.080(1). As part of this mission, the OSB publishes a monthly Bulletin. The OSB's communications within the Bulletin:

should be germane to the law, lawyers, the practice of law, the courts and the judicial system, legal 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.

Oregon State Bar Bylaws, Art. 11, Sec. 1 (Bylaws) (available at http://www.osbar.org/docs/ rulesregs/bylaws.pdf). In addition:

Bar legislative or policy activities must be reasonably related to any of the following 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 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. at 12.1.

The OSB published two statements in its April 2018 Bulletin. One was from the OSB regarding “White Nationalism and Normalization of Violence” and the other was a “Joint Statement of the Oregon Specialty Bar Associations Supporting the Oregon State Bar's Statement on White Nationalism and Normalization of Violence.” The OSB has a procedure in its Bylaws under which members can object if they believe speech by the OSB, including through the Bulletin, was nongermane political activity. Plaintiffs complained about the two Bulletin notices, and the OSB paid them a proportional refund of their dues.

DISCUSSION

Plaintiffs argue that being required to join an integrated bar as a condition of practicing law by its nature violates Plaintiffs' associational rights. Plaintiffs argue that the Court should apply strict scrutiny, or at least “exacting” scrutiny, and that under either standard, the OSB's mandatory bar membership structure fails because there are other structures, such as a licensing system allegedly used by 40 percent of other states and similar to what Oregon uses for medical doctors, that would be equally sufficient and less burdensome on First Amendment rights. Plaintiffs do not distinguish between germane and nongermane conduct in this argument and expressly disavow that they are relying on nongermane conduct in their motion. Plaintiffs also argue that the Ninth Circuit's remand in Crowe mandates that the Court find in Plaintiffs' favor.

Plaintiffs misunderstand the Ninth Circuit's remand order in Crowe. First, the Ninth Circuit repeatedly framed Plaintiffs' case differently than what Plaintiffs argue in the pending motion. The Ninth Circuit described Plaintiffs' associational rights claims as “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, ” and “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.” Crowe, 989 F.3d at 727, 729 (emphasis added); see also id. at 727 (describing the claim in Morrow v. State Bar of California, 188 F.3d 1174, 1175 (9th Cir. 1999), as one in which “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” and that “[t]his is, essentially the same claim Plaintiffs raise here” (emphasis added)). Thus, the Ninth Circuit focused on the fact that Plainti...