MARK E. SCHELL v. THE CHIEF JUSTICE AND JUSTICES OF THE OKLAHOMA SUPREME COURT; THE MEMBERS OF THE OKLAHOMA BAR ASSOCIATION‘S BOARD OF GOVERNORS; JOHN M. WILLIAMS, Executive Director, Oklahoma Bar Association, all in their official capacities
No. 20-6044
United States Court of Appeals for the Tenth Circuit
August 25, 2021
PUBLISH; (D.C. No. 5:19-CV-00281-HE); (W.D. Okla.)
Before HARTZ, EBEL, and McHUGH, Circuit Judges.
This matter is before the court on the Petition for Panel Rehearing or Rehearing En Banc (“Petition“) filed by Appellant. We also have a response from Appellees.
Pursuant to
The court‘s June 29, 2021, opinion is withdrawn and replaced by the attached revised opinion, which will be filed as of today‘s date. Because the panel‘s decision to partially grant rehearing does not affect the outcome of this appeal, Appellant may not file a second or successive rehearing petition. See
The Petition was transmitted to all non-recused judges of the court who are in regular active service. As no member of the panel and no judge in regular active service requested that the court be polled, the request for rehearing en banc is denied. See
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
MARK E. SCHELL v. THE CHIEF JUSTICE AND JUSTICES OF THE OKLAHOMA SUPREME COURT; THE MEMBERS OF THE OKLAHOMA BAR ASSOCIATION‘S BOARD OF GOVERNORS; JOHN M. WILLIAMS, Executive Director, Oklahoma Bar Association, all in their official capacities
No. 20-6044
United States Court of Appeals for the Tenth Circuit
August 25, 2021
PUBLISH; Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:19-CV-00281-HE)
Daniel Volchok, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C. (Michael Burrage, Whitten Burrage, Oklahoma City, Oklahoma; Thomas G. Wolfe and Heather L. Hintz, Phillips Murrah P.C., Oklahoma City, Oklahoma; Kieran D. Maye, Jr. and Leslie M. Maye, Maye Law Firm, Edmond, Oklahoma, on the briefs), for Defendants – Appellees.
Before HARTZ, EBEL, and McHUGH, Circuit Judges.
Mark E. Schell, an attorney, asked the district court to invalidate Oklahoma‘s requirement that practicing attorneys join the Oklahoma Bar Association (“OBA“) and pay mandatory dues. In addition, Mr. Schell alleged that the OBA did not utilize adequate safeguards to protect against the impermissible use of funds.
Initially, the district court dismissed Mr. Schell‘s challenges to membership and dues but permitted Mr. Schell‘s challenge to the OBA‘s spending procedures to proceed. Then, the OBA adopted new safeguards consistent with Mr. Schell‘s demands. The parties agreed the revised safeguards mooted Mr. Schell‘s remaining claim and asked that the district court dismiss the Amended Complaint. The district court obliged, and this appeal, limited to the membership and dues requirements, followed.
On appeal, Mr. Schell, primarily citing Janus v. American Federation of State, County, & Municipal Employees, Council 31, 138 S. Ct. 2448 (2018), disputes whether Supreme Court precedents upholding bar membership and mandatory dues remain good law. His view is that Janus transformed prior Supreme Court decisions upholding mandatory bar dues and membership such that what was once permitted by Lathrop v. Donohue, 367 U.S. 820 (1961), and Keller v. State Bar of California, 496 U.S. 1 (1990), is now precluded.
We affirm the district court‘s holding that mandatory bar dues do not violate Mr. Schell‘s First Amendment rights. Throughout that portion of our analysis, we apply an overarching principle: “If a precedent of [the Supreme] 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 [the Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989). As for Mr. Schell‘s First Amendment claim based on mandatory bar membership, we hold the majority of the allegations supporting this claim occurred prior to the controlling statute-of-limitations period. However, some of the allegations falling within the statute-of-limitations period allege conduct by the OBA not necessarily germane to the purposes of a state bar as recognized in Lathrop and Keller. Accordingly, the district court erred by relying upon Lathrop and Keller to dismiss Mr. Schell‘s freedom of association claim based on mandatory bar membership. We therefore reverse the district court‘s dismissal of Mr. Schell‘s freedom of association claim based on mandatory bar membership, and we remand so that Mr. Schell may conduct discovery on that claim.
I. BACKGROUND
A. Factual History
1. The OBA
The Supreme Court of Oklahoma created the OBA, dubbed it “an official arm” of the Court, and promulgated rules governing its operations.
As relevant here, the OBA‘s membership consists of “those persons who are, and remain, licensed to practice law in” Oklahoma. Id. art. II, § 1. Persons who are not OBA active members may not practice law in Oklahoma, subject to narrow exceptions. Id. §§ 5, 7. OBA members must pay annual dues. Id. art. VIII, § 1. If a member fails to pay dues, the Board of Governors is required to refer that person to the Supreme Court of Oklahoma for suspension from the practice of law. Id. § 2. Mr. Schell has paid annual dues to the OBA for decades.
2. OBA Speech
Mr. Schell, through his Amended Complaint, alleges “[t]he OBA uses members’ mandatory dues to engage in speech, including political and ideological speech.” App. at 27. In accord with provisions of the OBA bylaws, the OBA formally engages in three types of legislative activity. First, the OBA operates a “Legislative Program” entity which “may propose legislation ‘relating to the administration of justice; to court organization; selection, tenure, salary and other incidents of the judicial office; to rules and laws affecting practice and procedure in the courts and in administrative bodies exercising adjudicatory functions; and to the practice of law.‘” Id. (quoting art. VIII, §§ 2, 3 of the OBA Bylaws). Second, the OBA is authorized to make recommendations on pending legislation impacting the same items on which
Mr. Schell‘s Amended Complaint identifies two examples of the OBA‘s direct legislative activity. First, in 2009, “the OBA publicly opposed a controversial tort reform bill.” Id. Second, in 2014, the OBA created a petition and organized a political rally at the Oklahoma State Capitol in opposition to proposed legislation changing the process for the selection of members to the Oklahoma Judicial Nomination Commission. The Amended Complaint further alleges the OBA, through its committees, continues to draft, support, and oppose legislation.
The OBA also publishes the Oklahoma Bar Journal. Mr. Schell alleges, “[t]he OBA uses mandatory member dues to publish political and ideological speech in its Oklahoma Bar Journal publication.” Id. at 28. Mr. Schell‘s Amended Complaint identifies several articles published in 2016 touching on matters such as the Supreme Court‘s decision in Citizens United v. FEC, 558 U.S. 310 (2010), regulation of the oil and gas industry, the influence of monetary contributions on the judicial selection process, tribal law issues, and climate change. Mr. Schell contends these articles were political and ideological in nature, rather than merely informative. For instance, the article discussing Citizens United criticized the Supreme Court for “changing the United States ‘to “a government of the corporations, by the bureaucrats, for the money.“‘” Id. at 28 (quoting the OBA article). Meanwhile, articles on the oil and gas
Mr. Schell also alleges the September 2016 publication of the Oklahoma Bar Journal included an announcement of a speech hosted by the OBA, a speech scheduled to take place one week before the 2016 general election. Mr. Schell avers the advertisement indicated the keynote speaker planned to speak about the influence of money in the judicial system and how “wealthy conservative libertarians” intended to use contributions to “chang[e] the way the law is taught in law schools” and to “pay[] for judicial junkets.” Id. at 30.
Finally, the Amended Complaint contains several allegations about articles published in the Oklahoma Bar Journal from 2017 through 2019. First, it alleges an April 2017 article “criticized legislative proposals to change Oklahoma‘s method of judicial selection, suggesting that, if they passed, ‘big money and special interest
B. Procedural History
On March 26, 2019, Mr. Schell initiated this lawsuit in the United States District Court for the Western District of Oklahoma, naming only John Morris Williams, Executive Director of the OBA, as a defendant. Mr. Schell subsequently amended his complaint, adding the Chief Justice and Associate Justices of the Oklahoma Supreme Court and members of the OBA‘s Board of Governors as defendants. Count I raised First and Fourteenth Amendments free speech and freedom of association challenges to Oklahoma‘s requirement that practicing attorneys join the OBA. On these claims, Mr. Schell sought declaratory and injunctive relief through
The defendants moved to dismiss in separate motions. The Chief Justice and Associate Justices of the Oklahoma Supreme Court sought dismissal under
Even if the past articles could conceivably be construed to relate to any allowable equitable relief (which Williams disputes), all but six concern occurrences beyond the two year statute of limitation[s], and would be time barred. See Amended Complaint [Doc 19] at ¶¶ 58–70; Garcia v. Wilson, 731 F.2d 640, 651 (10th Cir. 1984) (Section 1983 actions are characterized as personal injury claims); Baker v. Bd. of Regents of the State of Kan., 991 F.2d 628, 630 (10th Cir. 1993) (state law to determine[] applicable limitations period);
OKLA. STAT. tit. 12, § 95(2) (two year limitation period for actions for injury to rights not arising from contract).
Supp. App., Vol. I at 54. The members of the OBA‘s Board of Governors also moved to dismiss, raising arguments in line with Mr. Williams, including an identical argument regarding the statute of limitations.1
The district court granted in part and denied in part the motions to dismiss. The district court first rejected the defendants’ various arguments as to their claimed immunity from suit. Next, the district court determined it had jurisdiction over the suit, and thus decided there was no reason to abstain from deciding this case.
Turning to the sufficiency of Mr. Schell‘s pleadings, the district court dismissed Counts I and II of the Amended Complaint for failure to state a claim. Specifically, the district court reasoned that the Supreme Court‘s decisions in
In March 2020, the OBA Board of Governors adopted a new “Keller policy” that enshrined the spending safeguards Mr. Schell had alleged were compelled by the First Amendment. Defendants then filed an unopposed motion to dismiss as moot Count III of the Amended Complaint. Mr. Schell did not oppose the motion. The district court granted the motion to dismiss Count III as moot, dismissed the Amended Complaint, and entered judgment. Mr. Schell timely filed a notice of appeal.
II. DISCUSSION
A. Standard of Review
“We review de novo the grant of a Rule
B. Relevant Case Law
“The First Amendment, made applicable to the States by the Fourteenth Amendment, forbids abridgment of the freedom of speech.” Janus, 138 S. Ct. at 2463. The freedom of speech includes “the right to refrain from speaking at all.” Id. (quoting Wooley v. Maynard, 430 U.S. 705, 714 (1977)). When speech is compelled, “individuals are coerced into betraying their convictions,” and the forced endorsement of objectionable ideas “is always demeaning.” Id. at 2464. “Compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns” to a law compelling speech. Id.
The right to refrain from speaking includes “[t]he right to eschew association for expressive purposes.” Id. at 2463. “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which
Oklahoma attorneys are required to pay dues to the OBA. Oklahoma attorneys are also not permitted to eschew association with the OBA, for expressive reasons or otherwise, while continuing the practice of law. At first glance, then, the requirement that Oklahoma attorneys be members of the OBA might appear problematic under the First Amendment. A closer examination of Supreme Court precedent teaches the question is more complex.
1. Lathrop
In Lathrop, a member of the Wisconsin Bar sued for a refund of dues because he did not “like to be coerced to support an organization which is authorized and directed to engage in political and propaganda activities.” 367 U.S. at 822 (plurality opinion). He accused the Wisconsin Bar of being, in essence, “a political party.” Id. at 833. The allegations suggested the Wisconsin Bar partook in six forms of
Although the Court did not issue a majority opinion, seven Justices agreed the First Amendment right to freedom of association did not proscribe mandatory bar dues or membership. Four Justices disagreed with the plaintiff‘s characterization of the Wisconsin Bar‘s activities, in part because “[o]nly two of the [Bar‘s] 12 committees . . . are expressly directed to concern themselves in a substantial way with legislation” and the Bar took a position on legislation only where there was
Two Justices concurred in the judgment but criticized the plurality for not endorsing the Wisconsin Bar‘s right “to use, in whole or in part, the dues of dissident members to carry on legislative and other programs of law reform.” Id. at 848 (Harlan, J., concurring). Those two Justices agreed, therefore, that the plaintiff‘s freedom of association claim failed. Id. at 850.
Justice Whittaker also concurred in the judgment, writing only for himself. His concurrence states, in its entirety:
Believing that the State‘s requirement that a lawyer pay to its designee an annual fee of $15 as a condition of its grant, or of continuing its grant, to him of the special privilege (which is what it is) of practicing law in the State—which is really all that is involved here—does not violate any provision of the United States Constitution, I concur in the judgment.
Id. at 865 (Whittaker, J., concurring).
2. Abood
In Abood, state law permitted local governmental employers to enter “agency shop” agreements wherein a designated union would represent all employees, and each employee, regardless of whether she wished to be a member of the union, was required to pay union dues as a condition of employment. 431 U.S. at 211. A group of teachers who opposed union collective bargaining for public employees, raised a freedom of association challenge to “agency shop” agreements and mandatory dues. Id. at 212–13. Recognizing the state interest in the promotion of harmony and uniformity in contract negotiations, the Supreme Court upheld “agency shop” agreements for those portions of dues payments that financed a union‘s collective bargaining activities. Id. at 229, 232. However, the Supreme Court held that public employees who did not join the union could not be required to pay dues that funded non-collective-bargaining activities such as the union‘s expression of political views. Id. at 235–36.
3. Keller
In Keller, members of the California Bar raised First Amendment freedom of speech and freedom of association challenges to the “use of their membership dues to finance certain ideological or political activities to which they were opposed.” 496 U.S. at 4, see id. at 5–6. Specifically, the plaintiffs challenged forced membership and mandatory dues in light of the California Bar‘s lobbying of the legislature and governmental entities, filing of amici briefs, engagement in educational programs, and holding of an annual conference at which issues of current interest were debated and resolutions on those issues adopted. Id. at 5–6. “The Supreme Court of California rejected this challenge on the grounds that the State Bar is a state agency and, as such, may use the dues for any purpose within its broad statutory authority.” Id. at 4.
The Supreme Court disagreed with that holding but nevertheless reaffirmed “that lawyers admitted to practice in the State may be required to join and pay dues to the State Bar.” Id. The Supreme Court reasoned “that all of the lawyers who derive benefit from the unique status of being among those admitted to practice before the courts should be called upon to pay a fair share of the cost of the professional involvement in this effort.” Id. at 12. But the Supreme Court drew a balance, allowing state bar associations to “constitutionally fund activities germane to those goals” but not use mandatory dues to “fund activities of an ideological nature which fall outside of those areas of activity.” Id. at 14. The Supreme Court did not draw a fine line between germane versus non-germane, ideological activities, but it did state a “guiding standard” for assessing that question: “[W]hether the challenged
[c]ompulsory dues may not be expended to endorse or advance a gun control or nuclear weapon freeze initiative [but,] at the other end of the spectrum[,] petitioners have no valid constitutional objection to their compulsory dues being spent for activities connected with disciplining members of the Bar or proposing ethical codes for the profession.
Id. at 16. Thus, the Supreme Court generally applied the rule from Abood that mandatory dues could be used for activities central to goals and purposes germane to a bar association‘s legitimate functions but not for ideological purposes extraneous to the recognized goals and purposes of a bar. Id. at 17.
The Supreme Court‘s opinion, however, did not end there. Rather, the Court acknowledged the plaintiffs also had advanced “a much broader freedom of association claim than was at issue in Lathrop.” Id. Specifically, the plaintiffs argued they could not “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 and Abood.” Id. But the Court declined to address this claim because the California courts had not addressed it first.
4. Janus
In Janus, public employees opposed to collective bargaining challenged forced subsidization of union collective-bargaining activities. 138 S. Ct. at 2459–60. The Supreme Court overruled Abood, concluding Abood was “poorly reasoned,” and
Our decision to overrule Abood casts significant doubt on Keller. The opinion in Keller rests almost entirely on the framework of Abood. Now that Abood is no longer good law, there is effectively nothing left supporting our decision in Keller. If the rule in Keller is to survive, it would have to be on the basis of new reasoning that is consistent with Janus.
Jarchow v. State Bar of Wis., 140 S. Ct. 1720, 1720 (2020) (Thomas, J., dissenting from the denial of certiorari).3
C. The First Amendment Permits Mandatory Bar Dues
The Supreme Court has recently applied “exacting scrutiny” to mandatory dues, in the union context, without ruling out the possibility that strict scrutiny might be appropriate. Janus, 138 S. Ct. at 2465. A law compelling subsidies for private speech may survive exacting scrutiny only when it serves “a ‘compelling state interes[t] . . . that cannot be achieved through means significantly less restrictive of
Although Janus suggests Keller is vulnerable to reversal by the Supreme Court, at this time Keller remains binding precedent on this court. And under that precedent, Mr. Schell‘s Amended Complaint failed to state a plausible claim that the OBA‘s mandatory dues are unconstitutional.
Mr. Schell‘s primary argument as to mandatory dues is to recast the holding of Keller. According to Mr. Schell, Keller “held that mandatory bar dues are subject to the same constitutional rule that applies to mandatory union fees.” Appellant Br. at 28 (internal quotation marks omitted). In Mr. Schell‘s view, Keller‘s discussion of Abood was dicta, meant only to illustrate how the constitutional rules then in effect would apply to a bar association. Mr. Schell asserts that if we were to apply Keller literally, now that Abood has been overturned, we would violate Keller‘s core holding that the same rule applies to unions and bar associations. And he contends that applying Janus’ rule here dictates the conclusion that the OBA‘s mandatory dues are unconstitutional.
Mr. Schell‘s reading of Keller is unconvincing. In his view, the second half of the Court‘s opinion was a recapitulation of Abood and Hudson for no reason other than additional explanation of their holdings. But there is a far more likely explanation for the Court‘s extended discussion concerning “useful guidelines for determining permissible expenditures.” Keller, 496 U.S. at 14. In our view, the Court used the discussion of union expenditures in Abood and Hudson to provide context
It follows that Janus did not overrule Keller‘s discussion of Abood, or its related discussion of germaneness, as the test for the constitutionality of mandatory dues and expenditures.4 To be sure, the Supreme Court may reexamine its precedent on mandatory bar dues, but it did not do so in Janus.
Even if Mr. Schell were correct that most of Keller is dicta, we would still be bound to follow it. “[W]e are bound by Supreme Court dicta almost as firmly as by the Court[‘]s[] outright holdings, particularly when the dicta is recent and not enfeebled by later statements.” Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1125
In conclusion, Keller established a germaneness test for the constitutionality of mandatory bar dues. Janus did not replace that longstanding test with exacting scrutiny, and the Supreme Court has yet to announce the impact of that decision on its holdings in Keller and Lathrop. Consequently, we affirm the district court‘s dismissal of Count II.
D. The First Amendment and Mandatory Bar Membership
We first consider the proper scope of Mr. Schell‘s Count I free speech and freedom of association claims based on mandatory bar membership under the applicable statute of limitations. We then conclude that the allegations occurring within the applicable statute of limitations advance a plausible freedom of association claim not foreclosed by Lathrop and Keller and warranting discovery.
1. Statute of Limitations
On appeal, defendants contend most of Mr. Schell‘s allegations are barred by the statute of limitations. “The statute of limitations period for a
2. Sufficiency of Allegations Within the Applicable Statute of Limitations
In assessing whether the non-time-barred allegations in Mr. Schell‘s Amended Complaint are sufficient to advance a claim for a free speech or freedom of association violation, we consider the germaneness of the alleged activities to the valid goals and purposes of the OBA. See Keller, 496 U.S. at 13–14; Lathrop, 367 U.S. at 843. As stated earlier, the primary inquiry for assessing this matter is whether the challenged expenditures and activities “are necessarily or reasonably incurred for the purpose of regulating the legal profession or ‘improving the quality of the legal service available to the people of the State.‘” Keller, 496 U.S. at 14 (quoting Lathrop, 367 U.S. at 843). In other words, Mr. Schell may not state a plausible freedom of
Of the six Oklahoma Bar Journal articles appearing within the appropriate time period, four articles, based on the descriptions provided by Mr. Schell in his Amended Complaint, appear germane to the goal of improving the quality and availability of legal services in Oklahoma. As a result, they are in line with those non-attorney-disciplinary activities permitted by the plurality opinion in Lathrop and the opinion in Keller.
First, the Amended Complaint identifies a May 2017 article encouraging members of the OBA to warn the public about the harms of politics in the judicial system. This article is germane because the judicial system is designed to be an apolitical branch of government, and promotion of the public‘s view of the judicial system as independent enhances public trust in the judicial system and associated attorney services.
Second, Mr. Schell highlights a May 2018 article responding to criticism of Oklahoma‘s merit-based process for selecting judges. Again, this article involves the structure of the court system and falls within those activities accepted in Lathrop and Keller. Further, while other allegations in Mr. Schell‘s Amended Complaint identify specific Oklahoma Bar Journal articles as advancing political or ideological views, he advances no similar contentions with respect to the May 2018 article.
Third, Mr. Schell identifies February and March 2019 articles as advocating for the role of attorneys in the state legislature. But these articles are not inherently
Mr. Schell‘s claim, therefore, rests on two Oklahoma Bar Journal articles: (1) the April 2017 article criticizing “big money and special interest groups” making campaign contributions and “elect[ing] judges and justices“; and (2) a November 2018 article advocating for the ability of prisoners to bring tort suits against prisons and jails.8 App. at 31. The district court concluded Lathrop and Keller foreclosed
First, it is not apparent the district court analyzed whether all of the OBA‘s activities were germane to regulating the legal profession and improving the quality of legal services in Oklahoma.9 Nor was the district court in a proper position to conduct such an analysis. While Mr. Schell provided short and plain descriptions of the April 2017 and November 2018 articles so as to satisfy
As to the April 2017 article, views on the appropriateness of “big money and special interest groups” in elections and the ability of donors to “buy court opinions,” App. at 31, often break along political lines. And other allegations in Mr. Schell‘s Amended Complaint support the plausibility of this article having an ideological
This leads us to the second error by the district court. Neither Lathrop nor Keller addressed a broad freedom of association challenge to mandatory bar membership where at least some of a state bar‘s actions might not be germane to regulating the legal profession and improving the quality of legal services in the state. See Keller, 496 U.S. at 17 (remanding case for consideration of broader freedom of association claim than raised in Lathrop because California Supreme Court had not addressed claim). Thus, the district court was incorrect to conclude
On remand, the district court shall allow for discovery into the April 2017 and November 2018 Oklahoma Bar Journal articles that Mr. Schell identifies in his Amended Complaint.10 Once the discovery is complete, if defendants seek summary judgment, the district court will need to apply the test from Keller to determine whether the articles are germane to the accepted purposes of the state bar. See Keller, 496 U.S. at 14. And, if the articles are not germane, the district court will need to assess whether Mr. Schell may advance a freedom of association claim based on these two articles.11
III. CONCLUSION
We affirm the district court‘s dismissal of Count II of Mr. Schell‘s Amended Complaint but reverse the district court‘s dismissal of Mr. Schell‘s Count I freedom of association claim. On remand, the district court shall permit Mr. Schell an opportunity to conduct discovery on that claim relative to the two potentially non-germane Oklahoma Bar Journal articles published within the statute-of-limitations period.