Case: 20-30086 Document: 00515924627 Page: 1 Date Filed: 07/02/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 2, 2021
No. 20-30086
Lyle W. Cayce
Clerk
Randy Boudreaux,
Plaintiff—Appellant,
versus
Louisiana State Bar Association, a Louisiana Nonprofit
Corporation; Louisiana Supreme Court; Bernette J.
Johnson, Chief Justice of the Louisiana Supreme Court; Scott J.
Crichton, Associate Justice of the Louisiana Supreme Court for the Second
District; James T. Genovese, Associate Justice of the Louisiana Supreme
Court for the Third District; Marcus R. Clark, Associate Justice of the
Louisiana Supreme Court for the Fourth District; Jefferson D. Hughes,
III, Associate Justice of the Louisiana Supreme Court for the Fifth District;
John L. Weimer, Associate Justice of the Louisiana Supreme Court for the
Sixth District; Unidentified Party, Successor to the Honorable Greg
Guidry as Associate Justice of the Louisiana Supreme Court for the First
District,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:19-CV-11962
Before Smith, Willett, and Duncan, Circuit Judges.
Don R. Willett, Circuit Judge:
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After the COVID–19 pandemic threw the rite-of-passage bar exam
into turmoil, states adopted a hodgepodge of responses that teed up larger
questions, like “Is the bar exam the best way to measure competency?” and
“[A]re there ways to fundamentally change how lawyers are trained,
licensed, and regulated?” 1 The exam is being reexamined. But for most
lawyers, the bar examination is just step one of a career-long relationship with
the bar association. Even if the legal licensing regime is lastingly upended,
thirty or so states still mandate joining and funding the state bar as a
precondition to practicing law.
This First Amendment case, one of several “bar wars” lawsuits across
the country, challenges Louisiana law that forces lawyers to join and pay
annual dues to the Louisiana State Bar Association (LSBA). 2 Louisiana
attorney Randy Boudreaux objects to many of 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 of Boudreaux’s claims. We reverse.
I
A
The Louisiana Supreme Court established the Louisiana State Bar
Association (LSBA) in 1941 at the direction of the state legislature. 3 LSBA
1
Letter from Michigan Supreme Court Chief Justice Bridget Mary McCormack to
Michigan Bar Examinees (July 29, 2020).
2
A companion case decided today concerns mandatory membership and fees in
Texas. See McDonald v. Longley, No. 20-50448, __ F.3d __ (5th Cir. 2021).
3
La. Rev. Stat. § 37:211; In re Mundy, 11 So. 2d 398, 400 (La. 1942) (explaining
history of LSBA); Lewis v. La. State Bar Ass’n, 792 F.2d 493, 495 (5th Cir. 1986) (same).
2
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is a “mandatory” or “integrated” bar, meaning attorneys must join to
practice law in Louisiana. 4 To remain in good standing, attorneys must pay
mandatory membership dues. 5 Currently, annual dues are $80 for attorneys
in their first 3 years of membership, and $200 after that.6 Attorneys who fail
to pay their dues are subject to discipline by the Louisiana Supreme Court. 7
LSBA’s purposes are “to regulate the practice of law, advance the
science of jurisprudence, promote the administration of justice, uphold the
honor of the Courts and of the profession of law, encourage cordial
intercourse among its members, and, generally, to promote the welfare of the
profession in the State.” 8 To those ends, LSBA administers the state’s
continuing legal education program, maintains a standing committee on the
Rules of Professional Conduct, operates subject-matter “sections” devoted
to different areas of the law, provides a mediation and arbitration service to
resolve disputes between attorneys and clients, and sponsors the Judges and
Lawyers Assistance Program to aid members of the profession struggling
with substance abuse and mental health.
LSBA also conducts legislative advocacy on behalf of the legal
profession. Its Legislation Committee recommends policy positions on
“matters involving issues affecting the profession, the regulation of attorneys
and the practice of law, the administration of justice, the availability and
delivery of legal services to society, the improvement of the courts and the
4
La. Rev. Stat. §§ 37:211, 37:213; La. R. Prof. Conduct § 1.1(c).
5
La. R. Prof. Conduct § 1.1(c); LSBA Articles of Incorporation art. V, § 1; LSBA
By-Laws art. I, § 4.
6
LSBA By-Laws art. I, § 1.
7
La. S. Ct. R. XIX.
8
LSBA Articles of Incorporation art. III, § 1.
3
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legal profession, and such other matters consistent with the mission and
purposes of the [LSBA].” 9 However, LSBA’s bylaws prohibit the
Legislation Committee’s involvement with “legislation which is ideological
in nature, unrelated to the practice of law, or which is unnecessarily
divisive.” 10 From 2015 to 2019, the Legislation Committee took positions on
at least 136 bills considered by the Louisiana legislature.
LSBA’s bylaws require it to “timely publish notice of adoption of
legislative positions in at least one of its regular communications vehicles and
[to] send electronic notice of adoption of legislative positions to Association
members.” 11 A member who opposes any of the bar’s activities for political
or ideological reasons may file a written objection with LSBA’s Executive
Director “within forty-five (45) days of the date of the Bar’s publication of
notice of the activity to which the member is objecting.” 12 LSBA’s Board of
Governors must either refund the pro rata amount of the objecting member’s
dues expended on the challenged activity or refer the matter to arbitration. 13
B
Randy Boudreaux is a member of LSBA who practices law in New
Orleans. He opposes the mandatory nature of the bar and claims he would
not be a member but for the laws and regulations requiring it. He also opposes
the use of his dues to fund political activity and legislative advocacy, and he
9
LSBA By-Laws art. XI, § I.
10
Id.
11
LSBA By-Laws art. XI, § 5.
12
LSBA By-Laws art. XII, § 1(A)(a).
13
Id.
4
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claims that LSBA does not provide him with adequate means to object to its
political expenditures.
Boudreaux sued LSBA, the Louisiana Supreme Court, and the
individual state supreme court justices under 42 U.S.C. §§ 1983 and 1988,
seeking to enjoin enforcement of the rules requiring his membership in, and
payment of dues to, LSBA. He claims that his First Amendment rights to
free association and free speech are violated by (1) mandatory membership in
LSBA, (2) the collection and use of mandatory bar dues to subsidize
LSBA’s speech, and, alternatively, (3) LSBA’s failure to provide safeguards
to ensure that his dues are not used for impermissible purposes.
Defendants moved to dismiss for lack of jurisdiction under Rule
12(b)(1) and for failure to state a claim under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. The district court determined that it had
jurisdiction over Boudreaux’s first claim, his challenge to mandatory
membership in LSBA, but dismissed that claim on the merits as foreclosed
by Supreme Court precedent. The court dismissed Boudreaux’s second
claim, his challenge to mandatory bar dues, for lack of jurisdiction after
concluding that the dues are a tax for purposes of the Tax Injunction Act,
which bars federal courts from hearing actions to restrain the collection of
state taxes where a remedy is available in state court. The district court also
dismissed Boudreaux’s third claim, his challenge to LSBA’s procedures for
safeguarding his dues, for lack of jurisdiction, reasoning that Boudreaux
lacked standing because he did not allege any impermissible expenditures.
5
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Boudreaux timely appealed. 14 We consider Boudreaux’s appeal alongside
McDonald v. Longley, which involves similar challenges to Texas’s bar. 15
II
We review dismissals under Rule 12(b)(1) and Rule 12(b)(6) de novo. 16
On a Rule 12(b)(1) motion, the party seeking to invoke federal jurisdiction
has the burden. 17 To survive a Rule 12(b)(6) motion, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” 18 “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” 19
III
Before addressing Boudreaux’s arguments, we detail the two Supreme
Court cases that govern First Amendment challenges to state bars, Lathrop
v. Donohue 20 and Keller v. State Bar of California. 21 We emphasize what those
cases did decide and, more importantly for this appeal, what they did not.
14
The court also determined that the Louisiana Supreme Court was not a proper
defendant and dismissed it from the suit. Boudreaux does not challenge that ruling on
appeal.
15
McDonald, slip op. at 1, __ F.3d at __.
16
Wilson v. Houston Cmty. Coll. Sys., 955 F.3d 490, 494 (5th Cir. 2020), cert.
granted, No. 20-804, __ S. Ct. __ (Apr. 26, 2021).
17
Id.
18
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
19
Id.
20
367 U.S. 820 (1961).
21
496 U.S. 1 (1990).
6
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Lathrop considered whether mandatory bar membership violates the
right to free association. A plurality of the Supreme Court held that states can
pursue their legitimate interests in improving the legal profession through
mandatory bar membership without violating the right to free association as
long as an attorney’s only obligation to the bar is to pay dues. 22 When that’s
the case, mandatory bar membership is constitutional even though the bar
“also engages in some legislative activity.” 23
Lathrop’s freedom of association holding is limited. First, as the
plurality itself emphasized, the opinion addressed only the consequences “of
compelled financial support of group activities, not with involuntary
membership in any other aspect.” 24 So, Lathrop did not consider whether an
attorney’s associational rights are violated by, for instance, being incorrectly
perceived as agreeing with the bar when the bar takes a public stance on a
topic. Second, the opinion did not specify when (if ever) a bar’s legislative
activity would infringe on an attorney’s associational rights. The plurality
either presumed that the bar’s legislative activity in the case furthered a
legitimate interest or concluded that the legislative activity did not alter the
First Amendment analysis because it was not the bar’s “major activity.” 25
The opinion is unclear on that. In any event, Lathrop does not appear to
implicate the constitutionality of a bar’s political activity that is unrelated to
improving the legal profession. “At bottom, Lathrop merely permitted states
22
367 U.S. at 843.
23
Id.
24
Id. at 828.
25
Id. at 839–43.
7
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to compel practicing lawyers to pay toward the costs of regulating their
profession” without running afoul of the right to free association. 26
Three decades later, Keller considered whether a bar’s use of
mandatory dues to fund its political activity violates the right to free speech.
The attorney in Lathrop had raised this issue, but the Court chose not to
resolve it because the record in that case was ill suited to the task. 27 In finally
addressing the issue, Keller held that the use of mandatory bar dues to
regulate and improve the legal profession does not violate an attorney’s
speech rights. 28 However, Keller prohibited bars from using mandatory dues
for activities that are not germane to regulating and improving the legal
profession. 29 The Court explained that state bars could satisfy their First
Amendment obligation toward mandatory dues by adopting procedures to
prevent the use of objecting attorneys’ dues for non-germane expenses. 30 It
posited, but did not hold, that the constitutional minimum set of procedures
in the union-fee context, set forth in Chicago Teachers Union v. Hudson, would
likely be adequate in the bar-dues context as well. 31 Hudson requires “an
adequate explanation of the basis for the 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
26
Crowe v. Or. State Bar, 989 F.3d 714, 728 (9th Cir. 2021), petition for cert. filed,
No. 20-1678 (June 2, 2021).
27
Lathrop, 367 U.S. at 845–48.
28
496 U.S. at 14.
29
Id.
30
Id. at 17.
31
Id.
8
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such challenges are pending.” 32 But again, the Court did not mandate that
state bars implement Hudson procedures. 33
In addition to their free speech claim, the attorneys in Keller raised a
free association claim that was not controlled by Lathrop. Specifically, they
argued “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.” 34 In
other words, they argued that mandatory membership in a state bar is
unconstitutional if the bar engages in any activity that is not germane to
regulating or improving the legal profession. The Court acknowledged that
the “request for relief appear[ed] to implicate a much broader freedom of
association claim than was at issue in Lathrop.” 35 But the Court declined to
address the claim because the lower courts had not considered it. 36 Keller
therefore left open whether an attorney can be compelled to join a bar that
engages in non-germane activity. 37
32
Chi. Teachers Union v. Hudson, 475 U.S. 292, 310 (1986).
33
Keller, 496 U.S. at 17.
34
Id.
35
Id.
36
Id.
37
We join the Ninth and Tenth Circuits in reading Lathrop and Keller as leaving
that question unresolved. See Schell v. The Chief Justice & Justices of the Oklahoma Supreme
Court, No. 20-6044, slip op. at 27–28, __ F.3d __ (10th Cir. June 29, 2021); Crowe, 989
F.3d at 727–29. We address the merits of this question head-on in McDonald and conclude
that the answer is “no.” McDonald, slip op. at 16–19, __ F.3d at __.
9
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Both Lathrop and Keller heavily relied on cases governing union
membership and dues. 38 The Supreme Court has since either overruled those
union cases or seriously called their reasoning into question. 39 As the parties
agree, Lathrop and Keller remain controlling law. 40 Even so, we recognize
their weakened foundations, which counsels against expanding their
application as we consider various questions the two cases left open. With
this background in mind, we now turn to Boudreaux’s claims.
IV
We first consider whether Lathrop and Keller foreclose Boudreaux’s
challenge to mandatory membership in LSBA. Then we consider whether
the Tax Injunction Act precludes federal courts from exercising jurisdiction
over his challenge to mandatory dues. Finally, we consider whether
Boudreaux has standing to pursue his claim that LSBA does not employ
adequate procedures to safeguard his dues.
A
Boudreaux’s first claim is that mandatory membership in LSBA
violates the First Amendment. The district court dismissed this claim on the
merits under Rule 12(b)(6) as foreclosed by Lathrop and Keller. Boudreaux
contends that his claim presents the (previously) open free association
38
Lathrop, 367 U.S. at 828, 842–43 (citing Ry. Emps. Dep’t v. Hanson, 351 U.S. 225
(1956) and Int’l Ass’n of Machinists v. Street, 367 U.S. 740 (1961)); Keller, 496 U.S. at 6, 9–
11, 13 (citing Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977)).
39
Janus v. Am. Fed’n of State, Cnty., and Mun. Emps., 138 S. Ct. 2448, 2478–80
(2018) (overruling Abood and questioning Hanson and Street).
40
Crowe, 989 F.3d at 724–25; Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490
U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of decisions, the Court of Appeals
should follow the case which directly controls, leaving to this Court the prerogative of
overruling its own decisions.”).
10
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question from Keller (which we closed today in this circuit with our
concurrently issued opinion in McDonald). 41 We agree.
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. That’s all that is required to present the free association claim
that Keller left unresolved.
Discovery may bear out that LSBA does not actually engage in any
non-germane activity. 42 But at this stage, we take Boudreaux’s allegations as
true and draw all reasonable inferences in his favor. 43 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
41
McDonald, slip op. at 16–19, __ F.3d at __.
42
See, e.g., id., slip op. at 19–28, __ F.3d at __.
43
See Ashcroft, 556 U.S. at 678.
11
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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. 44 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.
B
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.
Under the Tax Injunction Act, “district courts shall not enjoin,
suspend or restrain the assessment, levy or collection of any tax under State
law where a plain, speedy and efficient remedy may be had in the courts of
such State.” 45 “Distinguishing a tax from a fee often is a difficult task.” 46 A
classic tax (1) “sustains the essential flow of revenue to the government,”
(2) “is imposed by a state or municipal legislature,” and (3) “is designed to
44
See Fed. R. Civ. P. 8(a)(2), (d)(1), (e).
45
28 U.S.C. § 1341.
46
Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1011 (5th Cir.
1998).
12
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provide a benefit for the entire community.” 47 On the other hand, a classic
fee (1) “is linked to some regulatory scheme,” (2) “is imposed by an agency
upon those it regulates,” and (3) “is designed to raise money to help defray
an agency’s regulatory expenses.” 48 Most assessments fall somewhere on a
“spectrum” between a classic tax and a classic fee. 49
Whether an assessment is a tax for purposes of the Tax Injunction Act
is a question of federal law. 50 The label that the state legislature uses is
immaterial. 51 A state court’s characterization may inform the inquiry, but it
is not dispositive. 52 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.” 53 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. In reaching the opposite
conclusion, the district court emphasized that the state legislature directed
the Louisiana Supreme Court to create LSBA and to impose mandatory dues
on its members. 54 But this ignores the reality that LSBA, not the legislature,
47
Id.
48
Id.
49
Neinast v. Texas, 217 F.3d 275, 278 (5th Cir. 2000) (citing San Juan Cellular Tel.
Co. v. Pub. Serv. Comm’n of P.R., 967 F.2d 683 (1st Cir. 1992)).
50
Lipscomb v. Columbus Mun. Separate Sch. Dist., 269 F.3d 494, 500 n.13 (5th Cir.
2001).
51
Home Builders, 143 F.3d at 1010 n. 10.
52
Lipscomb, 269 F.3d at 500 n.13.
53
In re Mundy, 11 So. 2d at 400.
54
La. Rev. Stat. § 37:211; La. Act No. 54 of 1940 (“That the Supreme Court is
hereby memorialized to exercise its inherent powers by providing for the organization and
13
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administers and sets the dues. 55 And, as Boudreaux argues, “virtually all
charges government bodies impose are authorized by some statutory
authority.” That the dues were authorized by the legislature thus means
little; the question is whether the dues are “imposed” by the legislature. 56 A
charge is more likely to be a tax when it is “directly set by the legislature.” 57
LSBA’s dues are not.
Second, the dues are imposed only on the attorneys LSBA regulates,
not on the public at large. This is characteristic of a classic fee. 58
Third, the dues are used to defray LSBA’s regulatory costs, not to
raise general revenue for the state of Louisiana. The district court recognized
as much. It nonetheless treated the dues as a tax because LSBA’s activities
benefit the general public. The district court specifically pointed to LSBA’s
practice area “sections” designed to improve the quality of legal services, its
mediation and arbitration service to resolve disputes between lawyers and
clients, and its client assistance program for clients who are left without a
remedy for their lawyers’ wrongs. But those are only some of LSBA’s
activities. LSBA also administers the state’s continuing legal education
program, maintains a standing committee on the Rules of Professional
regulation of the Louisiana State Bar Association . . . and by providing a schedule of
membership dues, the non-payment of which shall be ground for suspension . . . .”).
55
LSBA By-Laws art. I; LSBA Articles of Incorporation art. V; see also id. at art.
XIV, § 6(b) (“Such annual fee shall include annual dues as determined in accordance with
Article V of the Articles of Incorporation of the Louisiana State Bar Association and the
disciplinary assessment fee as determined in accordance with Supreme Court Rule XIX.”).
56
Home Builders, 143 F.3d at 1011.
57
Henderson v. Stalder, 407 F.3d 351, 357 (5th Cir. 2005).
58
See Neinast, 217 F.3d at 278 (“The second factor, on whom the charge is
imposed, suggests that the charge is a fee: the charge is imposed only on a narrow class of
persons, disabled people wanting a placard, not the public at large.”).
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Conduct, and sponsors the Judges and Lawyers Assistance Program to aid
members of the profession struggling with substance abuse and mental
health, among other things. There is no doubt that members of the public
who come into contact with the legal system benefit from LSBA’s regulation
and improvement of the profession. But LSBA’s focus is the legal
community; it was not “designed to provide a benefit for the entire
community.” 59 That a benefit inures to the public—mostly indirectly—from
the LSBA’s activities does not change that, nor does it transform the
LSBA’s dues into taxes.
Because all three factors show that the bar dues are a fee, not a tax,
dismissal under the Tax Injunction Act was improper.
C
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. According
to the district court, Boudreaux’s allegation that “the LSBA may also engage
in other activities, in addition to its legislative advocacy, that a member could
challenge as not germane” was too speculative to establish standing. 60 We
disagree with the characterization of Boudreaux’s injury.
59
Home Builders, 143 F.3d at 1011.
60
Emphasis added; Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (“To
establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally
15
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As an initial matter, we have never addressed whether the
Constitution requires state bars to implement Hudson procedures in their
entirety or whether some lesser safeguards may suffice. 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 that “nothing in Keller mandates
a strict application of the Hudson procedures.” 61 Like the partial dissent in
Crowe, we are persuaded that Hudson is the constitutional floor. 62
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. 63 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. 64 Employees must now “affirmatively
consent before any money is taken from them” by a public union. 65 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. In determining which safeguards are constitutionally adequate, we
protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not
conjectural or hypothetical.’”) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992)).
61
989 F.3d at 727.
62
See id. at 734 (VanDyke, J., dissenting).
63
Janus, 138 S. Ct. at 2482 (“[T]he Hudson notice in the present case and in others
that have come before us do not begin to permit a nonmember to make such a
determination.”).
64
Id. at 2478 (overruling Abood, 431 U.S. at 209).
65
Id. at 2486 (emphasis added).
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are mindful of the Supreme Court’s protective holdings in the union context.
Requiring anything less than Hudson procedures in the bar context would be
inconsistent with the Supreme Court’s protective trend.
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. As we noted above, Boudreaux’s complaint does list
LSBA’s alleged non-germane activities. However, Boudreaux never claims
that he would have sought a refund of his dues, or otherwise protested, had
he been given “an adequate explanation of the basis for the fee.” 66
No court seems to have considered whether a plaintiff must identify
an expenditure to which he would have objected in order to challenge a
mandatory bar’s procedural safeguards. Lacking clear guidance on the
standing issue, the district court turned to Air Line Pilots Association v.
Miller. 67 The union in Air Line Pilots adopted an arbitration procedure to
comply with Hudson’s second requirement, that union members have an
opportunity to challenge an expenditure before an impartial decisionmaker. 68
The Supreme Court held that the union members did not need to arbitrate
their challenges to the union’s fees before filing suit in federal court. 69 The
Court rejected the union’s concern that allowing plaintiffs to bypass
arbitration would be inefficient, admonishing that a plaintiff cannot “file a
generally phrased complaint, then sit back and require the union to prove the
‘germaneness’ of its expenditures without a clue” as to which expenditures
66
Hudson, 475 U.S. at 310.
67
523 U.S. 866 (1998).
68
Id. at 869.
69
Id. at 879–80.
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the plaintiff opposed. 70 Rather, the Court explained, “[a]gency-fee
challengers, like all other civil litigants, must make their objections known
with the degree of specificity appropriate at each stage of litigation their case
reaches: motion to dismiss; motion for summary judgment; pretrial
conference.” 71 The district court relied on that language to require
Boudreaux to allege a non-germane expenditure to which he was opposed
before he could challenge LSBA’s procedures.
Air Line Pilots is inapposite. As noted, that case involved Hudson’s
second requirement, the impartial decisionmaker. This case involves
Hudson’s first requirement, that members receive notice of the basis for the
fee or dues. More importantly, unlike Boudreaux, the union members in Air
Line Pilots challenged the collection of a particular fee, alleging that the union
“had overstated the percentage of its expenditures genuinely attributable to
‘germane’ activities.” 72 The constitutionality of the union’s procedures was
not at issue. Indeed, the Court seemed to assume that the union’s procedures
were constitutionally adequate when it rejected the union’s efficiency
argument. After cautioning that a plaintiff would not be able to challenge
expenditures in a “generally phrased complaint,” the Court explained that
because of the Hudson notice, “an objector can be expected to point to the
expenditures or classes of expenditures he or she finds questionable.” 73 It
emphasized that “[t]he very purpose of Hudson’s notice requirement is to
provide employees sufficient information to enable them to identify the
70
Id. at 878.
71
Id.
72
Id. at 870.
73
Id. at 878.
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expenditures that, in their view, the union has improperly classified as
germane.” 74
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. In that way, his claim differs from the union members’ in Air
Line Pilots. 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. Dismissing his claim for lack of standing was
therefore error.
V
We REVERSE the district court’s judgment and REMAND this
case for further proceedings.
74
Id.
19