Crowe v. Oregon State Bar

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Crowe v. Oregon State Bar
Case number: 20-1678
Status: Pending on remand.
Important dates
Filed: Dec. 13, 2018
District court decision:
May 24, 2019
Appeals court decision:
Feb. 26, 2021
Supreme Court decision:
Oct. 4, 2021
District court outcome
The Oregon State Bar is immune under the Eleventh Amendment and its membership and fee requirements are constitutional.
Appeals court outcome
The Ninth Circuit affirmed the district court's ruling in part, reversed in part, and remanded.
Supreme Court outcome
Certiorari denied.

This case is one of over a hundred public-sector union lawsuits Ballotpedia tracked following the U.S. Supreme Court's 2018 decision in Janus v. AFSCME. These pages were updated through February 2023 and may not reflect subsequent case developments. For more information about Ballotpedia's coverage of public-sector union policy in the United States, click here. Contact our team to suggest an update.

Crowe v. Oregon State Bar is a case pending on remand in the U.S. District Court for the District of Oregon. Following the Supreme Court's 2018 ruling in Janus v. AFSCME, the plaintiffs filed a claim that challenged the constitutionality of the Oregon State Bar Association's membership and fee requirements. In Janus, the high court held that public-sector unions cannot require non-members to pay fees to support union activities. On February 26, 2021, the U.S. Court of Appeals for the Ninth Circuit affirmed in part and reversed in part the district court's May 2019 dismissal of the suit, sending the case back to the lower court. On May 27, 2021, the plaintiffs filed a writ of certiorari to the Supreme Court. The Supreme Court denied review of the case on October 4, 2021.[1][2][3][4][5][6]

HIGHLIGHTS
  • The parties to the suit: The plaintiffs are Daniel Crowe, Lawrence Peterson, and Oregon Civil Liberties Attorneys. The defendants are the Oregon State Bar; the Oregon State Bar Board of Governors; the president and president-elect of the Oregon State Bar Board of Governors; and the chief executive officer, director of finance and operations, and general counsel of the Oregon State Bar.
  • The issue: Do the Oregon State Bar Association membership and fee requirements violate First and Fourteenth Amendment rights, and are they therefore unconstitutional?
  • The presiding judge(s): Magistrate Judge Jolie Russo and Judge Michael H. Simon presided over the district court proceedings. A three-judge appellate panel included Ninth Circuit Judges Jay Bybee and Lawrence VanDyke, and District Judge Kathleen Cardone.
  • The outcome: This case is pending on remand in the U.S. District Court for the District of Oregon.

    • Procedural history

    The plaintiffs are Daniel Crowe, Lawrence Peterson, and Oregon Civil Liberties Attorneys. The plaintiffs are represented by attorneys from the Goldwater Institute. The defendants are the Oregon State Bar; the Oregon State Bar Board of Governors; the president and president-elect of the Oregon State Bar Board of Governors; and the chief executive officer, director of finance and operations, and general counsel of the Oregon State Bar. The defendants are represented by attorneys from Tonkon Torp LLP; Schwabe, Williamson & Wyatt; and Miller Nash Graham & Dunn.[1][2]

    Below is a brief procedural history of the lawsuit:[1][2][3][4][5][6]

    • December 13, 2018: The plaintiffs filed their lawsuit in the U.S. District Court for the District of Oregon (case number 3:18-cv-02139). The plaintiffs' claim challenged the constitutionality of the Oregon State Bar membership and fee requirements and requested an injunction against enforcement of those requirements, as well as damages in the amount of all dues paid to the Oregon State Bar within the applicable limitations period, plus interest, costs, attorney’s fees, and other expenses. In the claim, the plaintiffs requested that the court “declare that Defendants may not use the mandatory fees of OSB members, including Plaintiffs, for non-chargeable activities unless the members have affirmatively consented to having their dues used for those purposes, as required by Janus v. AFSCME.”[3] The defendants subsequently filed to dismiss the claim.
    • March 13, 2019: A hearing was held before Magistrate Judge Jolie Russo, in which oral arguments were heard.
    • April 1, 2019: Russo issued an order dismissing the plaintiffs’ claim.
    • April 15, 2019: The plaintiffs appealed the decision to a district court judge for further consideration.
    • May 24, 2019: Judge Michael H. Simon adopted Russo’s order in full, dismissing the plaintiffs’ claim and terminating the case.
    • May 29, 2019: An appeal was docketed with the U.S. Court of Appeals for the Ninth Circuit (case number 0:19-cv-35463).
    • February 26, 2021: A Ninth Circuit panel affirmed the district court's dismissal of the plaintiffs' free speech claim and reversed the court's dismissal of their free association claim, remanding the case to the lower court.
    • May 27, 2021: The plaintiffs filed a writ of certiorari to the U.S. Supreme Court.
    • October 4, 2021: The Supreme Court denied review of the case.

    For a list of available case documents, click here.

    Decision

    District court decision

    On May 24, 2019, Judge Michael H. Simon confirmed Magistrate Judge Jolie Russo’s dismissal of the plaintiffs’ claim and terminated the lawsuit. On April 1, 2019, Russo wrote:[4]

    “

    Plaintiffs argue that the Oregon State Bar is not entitled to Eleventh Amendment immunity and that Plaintiffs have stated cognizable claims for violations of their rights under the First and Fourteenth Amendments. The Court has reviewed de novo those portions of Judge Russo’s Findings and Recommendation to which Plaintiffs have objected, as well as Defendants’ response. The Court agrees with Judge Russo that under the factors set forth in Mitchell v. Los Angeles Cnty. Coll. Dist., 861 F.2d 198 (9th Cir. 1998), the Oregon State Bar is immune from suit under the Eleventh Amendment. The Court also agrees with Judge Russo that Plaintiffs have failed to raise any plausible constitutional violations. The Court, therefore, ADOPTS those portions of the Findings and Recommendation. Further, for those portions of Judge Russo’s Findings and Recommendation to which neither party has objected, this Court follows the recommendation of the Advisory Committee and reviews those matters for clear error on the face of the record. No such error is apparent. [7]

    		”

    Russo was appointed to the court upon the recommendation of a merit selection panel and in accordance with 28 U.S.C. Section 631 and governing regulations for the selection of magistrates. Judge Simon was appointed by President Barack Obama (D).

    Appellate court decision

    On February 26, 2021, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit—Circuit Judges Jay Bybee and Lawrence VanDyke, and District Judge Kathleen Cardone—affirmed the district court's dismissal of the plaintiffs' free speech claim and reversed the court's dismissal of their free association claim, remanding the case to the lower court. VanDyke concurred in part and dissented in part. The court's summary of its ruling stated:[5]

    “

    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. ...

    The panel ... 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 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. [7]

    		”

    Bybee was appointed to the court by President George W. Bush (R). VanDyke was appointed by President Donald Trump (R). Cardone was appointed to the U.S. District Court for the Western District of Texas by George W. Bush.

    Legal context

    Janus v. AFSCME (2018)

    See also: Janus v. AFSCME

    On June 27, 2018, the Supreme Court of the United States issued a 5-4 decision in Janus v. American Federation of State, County, and Municipal Employees (Janus v. AFSCME), ruling that public-sector unions cannot compel non-member employees to pay fees to cover the costs of non-political union activities.[8]

    This decision overturned precedent established in Abood v. Detroit Board of Education in 1977. In Abood, the high court held that it was not a violation of employees' free-speech and associational rights to require them to pay fees to support union activities from which they benefited (e.g., collective bargaining, contract administration, etc.). These fees were commonly referred to as agency fees or fair-share fees.[8]

    Justice Samuel Alito authored the opinion for the court majority in Janus, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch. Alito wrote, "Abood was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for the past 41 years. Abood is therefore overruled."[8]

    Related litigation

    To view a complete list of the public-sector labor lawsuits Ballotpedia tracked between 2019 and 2023, click here.

    Number of federal lawsuits by circuit

    Between 2019 and 2023, Ballotpedia tracked 191 federal lawsuits related to public-sector labor laws. The chart below depicts the number of suits per federal judicial circuit (i.e., the jurisdictions in which the suits originated).

    Public-sector labor lawsuits on Ballotpedia

    See also: Public-sector union policy in the United States, 2018-2023

    Click show to view a list of cases with links to our in-depth coverage.

    v • e
    Public-sector labor lawsuits
    Federal lawsuits

    Adams v. Teamsters Union Local 429 • Akers v. Maryland State Education Association • Aliser v. SEIU California • Allen v. Ohio Civil Service Employees Association • Allen v. Santa Clara County Correctional • Anderson v. SEIU Local 503 • Babb v. California Teachers Association • Baisley v. International Association of Machinists and Aerospace Workers • Belgau v. Inslee • Bennett v. AFSCME • Bermudez v. SEIU Local 521 • Bierman v. Dayton • Boudreaux v. Louisiana State Bar • Boyle v. SEIU California • Brice v. California Faculty Association • California v. Azar • Campos v. Fresno Deputy Sheriff’s Association • Carey v. Inslee • Casanova v. IAM Local 701 • Chandavong et al. v. Fresno Deputy Sheriff's Association et al. • Cook v. Brown • Cooley v. California Statewide Law Enforcement Association • Crowe v. Oregon State Bar • Cruz v. Union Independiente Autentica de Empleados de la Autoridad de Acueductos y Alcantarillados • Danielson v. Inslee • Diamond v. Pennsylvania State Education Association • Doughty v. State Employees Association of New Hampshire, SEIU, Local 1984 • Durst v. OEA • Few v. United Teachers Los Angeles • File v. Hickey • Fischer v. Murphy • Fisk v. Inslee • Fizer v. Ohio Association of Public School Employees • Fleck v. Wetch • Grega v. Council of New Jersey State College Locals • Grossman v. Hawaii Government Employees Association • Gruber v. Oregon State Bar • Guppy v. City of Los Angeles • Halloran v. AFSCME Council 5 • Hamidi v. SEIU • Hannay v. Kent State • Hartnett v. Penn. State Education Association • Hendrickson v. AFSCME Council 18 • Hernandez v. AFSCME California • Hoekman v. Education Minnesota • Hough v. SEIU Local 521 • Imhoff v. California Teachers Association • Jackson v. Napolitano • James v. SEIU Local 688 • Janus v. AFSCME • Jarchow v. Wisconsin • Kabler v. United Food and Commercial Workers Union, Local 1776 Keystone State • Wenzig v. SEIU Local 668 • Kopie v. International Federation of Professional and Technical Employees • Kurk v. Los Rios Classified Employees Association • Lamberty et al. v. Connecticut State Police Union et al. • LaSpina v. SEIU Pennsylvania State Council • Lee v. Ohio Education Association • Leitch v. AFSCME • Littler v. Ohio Association of Public School Employees • Loescher v. Teamsters Local 320 • Lutter v. JNESO • Mandel v. SEIU Local 73 • Marsh v. AFSCME Local 3299 • Martin v. California Teachers Association • Masuo v. AFSCME AFL-CIO • Matthews v. United Teachers of Los Angeles • Mattos v. AFSCME Council 3 • Mayer v. Wallingford-Swathmore School District • McCain v. Ventura County Federation of College Teachers, AFT Local 1828 • McCollum v. NEA-Alaska • McCutcheon v. CWA Local 7076 • McDonald v. Firth • Mendez v. CTA • Miller v. Inslee • Misja v. PSEA • Molina v. SEIU Local 668 • Mooney v. Illinois Education Association • Nearman v. SEIU Local 503 • Neely v. AFSCME Council 13 • Nguyen v. Admin. and Residual Employees Union • Nichols v. Home Care Providers Union • O'Callaghan v. Drake • Ochoa v. Public Consulting Group • Ocol v. Chicago Teachers Union • Ogle v. Ohio Civil Service Employees Association, AFSCME, Local 11 • Oliver v. SEIU Local 668 • Pellegrino v. New York State United Teachers • Penning v. SEIU Local 1021 • Polk v. Yee • Popp v. ALPAI • Piekarski v. AFSCME Council 5 • Quirarte v. UDW AFSCME Local 3930 • Reisman v. Associated Faculties of the University of Maine • Rizzo-Rupon v. International Association of Machinists and Aerospace Workers, District Lodge 141 • Routh v. Inslee • Schaszberger v. AFSCME Council 13 • Schell v. Oklahoma Supreme Court Justices • Schumaker v. Inslee • Seager v. UTLA • Seidemann v. Professional Staff Congress • Smith v. AFSCME Council No. 8 • Smith v. New Jersey Education Association • Smith v. Bieker • Solomon v. AFSCME District Council 37 • Stroeder v. Service Employees International Union, Local 503 • Sweeney v. Raoul • Sweet v. California Association of Psychiatric Technicians • Taylor v. Heath • Thompson v. AFSCME Council 89, Local 4013 • Thompson v. Marietta Education Association • Thulen v. AFSCME • Uradnik v. Inter Faculty Org. • Utke v. University of Connecticut American Association of University Professors • Weyandt v. PSCOA • Wholean v. CSEA SEIU Local 2001 • Wilford v. National Education Association • Williams v. PSEA • Wolf v. University Professional & Technical Employees • Yates v. Hillsboro Unified School District • Yohn v. California Teachers Association

    See also

    External links

    Case documents

    Supreme Court

    Appeals court

    Trial court

    Footnotes

    1. ↑ 1.0 1.1 1.2 PacerMonitor, “Crowe et al v. Oregon State Bar et al,” accessed May 12, 2020
    2. ↑ 2.0 2.1 2.2 PacerMonitor, “Daniel Crowe, et al v. Oregon State Bar, et al,” accessed May 12, 2020
    3. ↑ 3.0 3.1 3.2 Goldwater Insitute, “Crowe v. Oregon State Bar: Civil Rights Complaint for Injunctive and Declaratory Relief and Damages,” December 13, 2018
    4. ↑ 4.0 4.1 4.2 PacerMonitor, “Crowe v. Oregon State Bar: Order,” May 24, 2019
    5. ↑ 5.0 5.1 5.2 Justia, "Crowe v. Oregon State Bar, No. 19-35463 (9th Cir. 2021)," February 26, 2021
    6. ↑ 6.0 6.1 Supreme Court of the United States, "No. 20-1678," accessed October 6, 2021
    7. ↑ 7.0 7.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    8. ↑ 8.0 8.1 8.2 Supreme Court of the United States, Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al., June 27, 2018
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