August 28, 2024 – UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT: No. 23-35193
In an action brought by attorney Daniel Crowe alleging that the requirement that he join the Oregon State Bar (“OSB”) infringes his First Amendment right to freedom of association, the panel dismissed his claims against OSB and his claims against OSB officers for retrospective relief, reversed the district court’s summary judgment for OSB officers on his claims for prospective equitable relief, and remanded.
Applying Kohn v. State Bar of California, 87 F.4th 1021 (9th Cir. 2023) (en banc), the panel held that OSB is an arm of the state entitled to sovereign immunity, and therefore dismissed Crowe’s claims against OSB. Sovereign immunity also precludes Crowe’s claims for retrospective relief against individual OSB officers sued in their official capacities. However, sovereign immunity does not bar Crowe’s claims for prospective declaratory and injunctive relief against individual OSB officers.
The panel held that Crowe demonstrated an infringement on his freedom of association because he objected to certain statements by OSB in its magazine that would reasonably have been imputed to OSB’s members. Considering the totality of the circumstances, OSB traded on its supposedly unified membership to bolster its own expression, fostering a misperception about the unanimity of its members’ views. Crowe established that OSB impaired his own expression because he objected to the message sent by his membership.
The panel held that the infringement on Crowe’s freedom of association did not survive exacting scrutiny because OSB’s communications were not related to the Bar’s regulatory purpose. Accordingly, the panel reversed the district court’s judgment as to Crowe’s freedom of association claim for prospective equitable relief against individual OSB officers and remanded for further proceedings.
OPINION
Attorney Daniel Crowe sued the Oregon State Bar and its officers, arguing that the requirement that he join the Bar infringes his First Amendment right to freedom of association. We hold that the Oregon State Bar is an arm of the state entitled to sovereign immunity, so the Bar itself must be dismissed as a defendant. But we hold, as to the officer defendants, that Crowe has demonstrated an infringement on his freedom of association because he objects to certain communications by the Bar that would reasonably have been imputed to the Bar’s members. We also hold that the infringement was not justified because the communications in question were not related to the Bar’s regulatory purpose. We therefore reverse the district court’s judgment for the officer defendants on Crowe’s freedom of association claim and remand for further proceedings.
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