In one of several “Bar Wars” lawsuits being prosecuted across the country, an attorney brought a challenge to the Louisiana Law which forces lawyers to join and pay annual dues to the Louisiana State Bar Association. Plaintiff claims that he objects to many of the LSBA’s activities, which he labels political and ideological advocacy. He claims that compelled dues and membership violate his First Amendment rights, as does LSBA’s failure to ensure that his dues are not used to fund the bar’s political and ideological activities. The District Court dismissed all claims. But the U.S. Fifth Circuit Court of Appeals reversed:
“Boudreaux alleged that LSBA engages in legislative advocacy that is inherently political and ideological. His complaint specifically identifies LSBA’s resolutions urging a moratorium on executions, opposing civil immunities, and advocating changes to the high school civics curriculum. His complaint also notes LSBA’s lobbying against reducing the amount-in-controversy threshold to request a civil jury trial in state law, against requiring judges to file financial statements, and against allowing school personnel to carry firearms in schools. With these allegations, Boudreaux plausibly pleads that LSBA’s political and legislative activity goes beyond what’s constitutionally permissible under Lathrop – that the activity is not justified by the state’s interest in regulating and improving the legal profession…. Discovery may bear out that LSBA does not actually engage in any non-germane activity. But at this stage, we take Boudreaux’s allegations as true and draw all reasonable inferences in his favor. Under that standard, dismissing his freedom of association claim as foreclosed by Keller was error.
“LSBA does not contest that Boudreaux pleaded the open question from Keller. Instead, it argues that Boudreaux lacks standing to pursue this claim because he did not plead a cognizable injury to his associational rights. Specifically, LSBA argues that Boudreaux has not alleged that it engages in any non-germane activity with which he disagrees. But Boudreaux alleged that he opposes the LSBA’s use of any amount of his mandatory dues to fund any amount of political or ideological speech, regardless of its viewpoint and that he does not wish to fund the LSBA’s political and ideological speech and other activities. Plainly, Boudreaux objects to all of LSBA’s political activity. And, though Boudreaux characterizes the complained-of conduct as ‘political and ideological,’ rather than using Keller’s term ‘non-germane,’ pleading standards don’t demand such precision in terminology or any magic words. The inference is clear that Boudreaux considers all of the conduct he identified in his complaint to be non-germane. That is enough to confer standing.
“Boudreaux’s second claim challenges LSBA’s use of mandatory dues to fund non-germane political activities under Keller. The district court characterized the bar dues as a tax and dismissed this claim for lack of jurisdiction under the Tax Injunction Act. We disagree with that characterization…. Whether an assessment is a tax for purposes of the Tax Injunction Act is a question of federal law. The label that the state legislature uses is immaterial. A state court’s characterization may inform the inquiry, but it is not dispositive. Here, the district court relied on the Louisiana Supreme Court’s description of the mandatory dues as ‘merely a form of levying a license tax upon the right to practice law.’ But the state court’s description from a 1942 case is outweighed by other factors. First, the dues are imposed by LSBA, not the legislature, which supports the characterization of the dues as a fee…. Second, the dues are imposed only on the attorneys LSBA regulates, not on the public at large…. Third, the dues are used to defray LSBA’s regulatory costs, not to raise general revenue for the state of Louisiana….
“Boudreaux’s third claim challenges LSBA’s procedures for ensuring that his dues are not used for non-germane purposes. Specifically, he alleges that LSBA does not provide adequate notice of its expenditures under Hudson because it publicizes only its legislative advocacy, leaving attorneys unable to challenge other activities as non-germane. The district court dismissed this claim for lack of standing, concluding that Boudreaux failed to allege a concrete injury because he had not identified any bar expenditures that he would have challenged if he had been given proper notice…. We now hold that Hudson procedures are a constitutional prerequisite to a state bar’s collection of mandatory dues. In so holding, we part ways with the Ninth Circuit’s recent decision in Crowe v. Oregon State Bar …. In the public-union sector, where Hudson originated, the Supreme Court recently expressed skepticism that Hudson notice is ever sufficient to protect a union member’s First Amendment rights. Based in part on that skepticism, the Court overruled its precedent authorizing public unions to collect mandatory dues from non-member employees for expenditures that are germane to collective bargaining. Employees must now affirmatively consent before any money is taken from them by a public union. The Court has not applied this opt-in requirement to state bars. State bars thus remain free under Keller to collect mandatory dues if they maintain adequate safeguards to prevent those dues from being expended on non-germane activity…. The question remains whether Boudreaux needed to identify a non-germane expenditure to which he would have objected to establish standing on his Hudson claim…. In this case, Boudreaux asserts that LSBA’s Hudson notice is not fulfilling its purpose. The Constitution requires that bar members be able to challenge expenditures as non-germane, but Boudreaux alleges he is unable to do so because of LSBA’s deficient notice process. His inability to identify non-germane expenditures is his injury, not the non-germane expenditures themselves…. By alleging that LSBA does not regularly provide notice of its expenditures with sufficient specificity, Boudreaux has pleaded an injury-in-fact for the claim he is pursuing.”
The Court therefore reversed the dismissal of the lawsuit, and remanded for further proceedings.
Boudreaux v. La. State Bar Association, 3 F.4th 748 (5th Cir. 2021).
Following remand, the Louisiana Supreme Court promulgated a restatement of Supreme Court Rule XVIII, Section 6 (Purpose and Scope of the Mandatory Bar) to make clear that:
“The LSBA shall limit its activities to those that are constitutionally germane to its purposes, and shall limit its legislative activities to issues involving practice and procedure, the judicial system, access to the courts, the compensation of judges or lawyers, or the legal profession, and to responding to any requests for information received from the legislature. Any legislative positions on issues within the scope of this rule shall be voted upon and approved in advance by the LSBA’s Board of Governors and thereafter published to members of the LSBA.”
Order (Sept. 14, 2021).
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