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Case 2:19-cv-11962-LMA-JVM Document 106 Filed 08/08/22 Page 26 of 33

In Boudreaux and McDonald, the Fifth Circuit explained that Keller, which

was decided on freedom of speech grounds, “prohibited bars from using mandatory

dues for activities that are not germane,” but it also held 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,” Boudreaux,

3 F.4th at 755 (citing Keller, 496 U.S. at 14, 17). The Supreme Court “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.” Id. (citing Keller, 496 U.S. at 17). The Fifth Circuit then held

that Hudson sets “the constitutional floor” for procedural safeguards in this context.

Id. at 758.

Hudson provides for an “opt-out” scheme, which requires “a public organization

collecting mandatory dues and engaging in non-germane conduct” to have procedures

that (1) “include an adequate explanation of the basis for the fee,” (2) “a reasonably

prompt opportunity to challenge the amount of the fee before an impartial

decisionmaker,” and (3) “an escrow for the amounts reasonably in dispute while such

challenges are pending.” Id. (quoting Hudson, 475 U.S. at 310). “The explanation of

the basis of the fee must include ‘sufficient information to gauge the propriety of the

[ ] fee.’” Id. (quoting Hudson, 475 U.S. at 306).

The Fifth Circuit further expounded on Hudson procedures in McDonald,

concluding that the Texas Bar’s procedures were inadequate, due both to insufficient

provision notice and insufficient objection procedures. Id. at 254. With respect to

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