Boudreaux v. La. State Bar Ass'n

• Decision Date: 02 July 2021
• Docket Number: No. 20-30086,20-30086
• Citation: 3 F.4th 748
• Parties: Randy BOUDREAUX, Plaintiff—Appellant, v. 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.
• Court: U.S. Court of Appeals — Fifth Circuit

3 F.4th 748

Randy BOUDREAUX, Plaintiff—Appellant,

v.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.

No. 20-30086

United States Court of Appeals, Fifth Circuit.

FILED July 2, 2021

Jacob H. Huebert, Senior Litigation Attorney, Timothy Mason Sandefur, Goldwater Institute, Phoenix, AZ, Dane S. Ciolino, Metairie, LA, Alex J. Peragine, Esq., Peragine Law Firm, L.L.C., Covington, LA, for Plaintiff-Appellant.

Richard C. Stanley, Esq., Eva Joelle Dossier, Kathryn Munson, Stanley, Reuter, Ross, Thornton & Alford, L.L.C., New Orleans, LA, for Defendants-Appellees.

Before Smith, Willett, and Duncan, Circuit Judges.

Don R. Willett, Circuit Judge:

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 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 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 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. 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. Donohue²⁰ 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.

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 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...