UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DANIEL Z. CROWE, No. 23-35193

Plaintiff-Appellant, D.C. No. 3:18-cv- 02139-JR OREGON CIVIL LIBERTIES ATTORNEYS, an Oregon nonprofit corporation, OPINION

Plaintiff-Appellant, and LAWRENCE K. PETERSON I,

Plaintiff,

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 2 CROWE V. OREGON STATE BAR

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.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Argued and Submitted April 2, 2024 Portland, Oregon

Filed August 28, 2024 Before: John B. Owens and Michelle T. Friedland, Circuit Judges, and William Horsley Orrick, * District Judge.

Opinion by Judge Friedland

* The Honorable William Horsley Orrick, United States District Judge for the Northern District of California, sitting by designation. CROWE V. OREGON STATE BAR 3

SUMMARY **

First Amendment/Bar Dues

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.

** 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

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.

COUNSEL Scott D. Freeman (argued) and Adam C. Shelton, Scharf- Norton Center for Constitutional Litigation at the Goldwater Institute, Phoenix, Arizona; Luke D. Miller, Military Disability Lawyer LLC, Salem, Oregon; for Plaintiffs- Appellants. Kristin M. Asai (argued), Paul Matthias-Bennetch, and Abi