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.