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; HELEN HIERSCHBIEL, Chief Executive Officer of the Oregon State Bar, Defendants, DANIEL Z. CROWE; OREGON CIVIL LIBERTIES ATTORNEYS; and LAWRENCE K. PETERSON, Plaintiffs, v. OREGON STATE BAR, a Public Corporation; OREGON STATE BAR BOARD OF GOVERNORS; VANESSA NORDYKE, President of the Oregon State Bar Board of Governors; CHRISTINE CONSTANTINO, President-elect of the Oregon State Bar Board of Governors; HELEN 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.

Nos. 3:18-cv-1591-JR, No. 3:18-cv-2139-JR

United States District Court, D. Oregon

February 17, 2023

FINDINGS & RECOMMENDATION

Jolie A. Russo United States Magistrate Judge

Plaintiffs in both cases challenge the mandatory nature of the Oregon State Bar's (OSB) compulsory fee structure. In early 2019, defendants moved to dismiss these actions. On May 24 2019, the Court granted defendants' motions and dismissed the cases finding the OSB entitled to Eleventh Amendment Immunity and that both the First Amendment free speech and freedom of association claims failed due to the Bar's procedural safeguards protecting against compelled speech that is not germane to the law. Findings and Recommendation (ECF 44) Order adopting (ECF 46).

On appeal, the Ninth Circuit affirmed dismissal of plaintiffs' free speech claim finding the OSB's refund process sufficient to minimize potential infringement on members' constitutional rights if the OSB engages in political activity that is not germane to the Bar's role in regulating the legal profession. Crowe v. Oregon State Bar, 989 F.3d 714, 727 (2021). However, the Appeals Court found plaintiffs' free association claims viable because past Supreme Court and Ninth Circuit precedent failed to resolve this issue when previously confronted with it.^[1] Id. at 729. The Ninth Circuit remanded to this Court to address the appropriate standard for assessing plaintiffs' free association claim and whether previous instruction regarding germaneness and procedurally adequate safeguards are relevant. Plaintiffs Daniel Crowe, Lawrence Peterson, and the Oregon Civil Liberties Attorneys (Crowe plaintiffs) seek summary judgment in Case No. 3:18-cv-2139-JR and defendants seek summary judgment in both cases. For the reasons stated below, defendants' motions should be granted, and the Crowe plaintiffs' motion should be denied.

BACKGROUND

Plaintiffs initiated these actions following publication of statements in the OSB April 2018 Bulletin entitled “White Nationalism and Normalization of Violence” and “Joint Statement of the Oregon Specialty Bar Associations Supporting the Oregon State Bar's Statement on White Nationalism and Normalization of Violence.” See, e.g., Crowe, 989 F.3d at 722-23. Plaintiffs complained about the statements and the OSB refunded $1.15 to plaintiffs and other objectors in an effort to adhere to the standards of germane speech as set forth in Keller v. State Bar of California, 496 U.S 1, 13 (1990) (a state bar may use mandatory dues to subsidize activities germane to the goals for regulating the legal profession and the quality of legal services without running afoul of members' rights to free speech). After the Court dismissed these actions on May 24, 2019, the Ninth Circuit remanded to address the questions noted above.

In Oregon, with few exceptions, active Bar membership is required to practice law. Or. Rev. Stat. § 9.160. A court shall enjoin any person from practicing law in violation of section 9.160 and may punish them with contempt. Or. Rev. Stat. § 9.166.

Generally all Bar members must pay annual membership fees and a professional liability assessment. Or. Rev. Stat. § 9.191. Failure to pay the fee will result in suspension from practice. Or. Rev. Stat. § 9.200.

The Bar's Board of Governors is required to advance the science of jurisprudence and the improvement of the administration of justice. Or. Rev. Stat. § 9.080(1). To accomplish this mission, the Bar administers exams for admission to practice, examines a member's character and fitness, formulates and enforces rules of conduct, and requires continuing education and training of its members. Or. Rev. Stat. §§ 9.210; 9.490; 9.114. In addition the Bar provides the public with general legal information and seeks to increase pro bono legal services. See, e.g., https://www.osbar.org/public/; https://www.osbar.org/lsp; https://www.osbar.org/probono/.

As part of its mission, the Bar publishes a monthly Bar Bulletin. The Bar'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 (http://www.osbar.org/ docs/rulesregs/bylaws.pdf) (Bylaws). 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.

To the extent such communications fail to adhere to this policy, the Bylaws provide a framework for addressing those communications:

Section 12.6 Objections to Use of Bar Dues

Subsection 12.600 Submission

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 may request the Board to review the member's concerns to determine if the Board agrees with the member's objections. Member objections must be in writing and filed with the Chief Executive Officer of the Bar. The Board will review each written objection received by the Chief Executive Officer at its next scheduled board meeting following receipt of the objection. The Board will respond through the Chief Executive Officer in writing to each objection. The Board's response will include an explanation of the Board's reasoning in agreeing or disagreeing with each objection.

Subsection 12.601 Refund

If 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 paid on that sum of money from the date that the member's fees were received to the date of the Bar's refund. The statutory rate of interest will be used. If the Board disagrees with the member's objection, it will immediately offer the member the opportunity to submit the matter to binding arbitration between the Bar and the objecting member. The Chief Executive Officer and the member must sign an arbitration agreement approved as to form by the Board.

Subsection 12.602 Arbitration

If an objecting member agrees to binding arbitration, the matter will be submitted to the Oregon Senior Judges Association ("OSJA") for the designation of three active-status retired judges who have previously indicated a willingness to serve as volunteer arbitrators in these matters. The Bar and the objecting member will have one peremptory challenge to the list of arbitrators. The Bar and the objecting member must notify one another of a peremptory challenge within seven days after receiving the list of proposed arbitrators. If there are no challenges or only one challenge, the OSJA will designate the arbitrator. The arbitrator will promptly arrange for an informal hearing on the objection, which may be held at the Oregon State Bar Center or at another location in Oregon that is acceptable to the parties and the arbitrator. The hearing will be limited to the presentation of written information and oral argument by the Bar and the objecting member. The arbitrator will not be bound by rules of evidence. The presentation of witnesses will not be a part of the hearing process, although the arbitrator may ask the state bar representative and the objecting member and his or her lawyer, if any, questions. The hearing may be reported, but the expense of reporting must be borne by the party requesting it. The Bar and the objecting member may submit written material and a legal memorandum to the arbitrator no later than seven days before the hearing date. The arbitrator may request additional written material or memoranda from the parties. The arbitrator will promptly decide the matter, applying the standard set forth in Keller v. State Bar of California, 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990), to the expenditures to which the member objected. The scope of the arbitrator's review must solely be to determine whether the matters at issue are acceptable activities for which compulsory fees may be used under applicable constitutional law. In making his or her decision, the arbitrator must apply the substantive law of

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