Schell v. OK Supreme Court Justices ( 2021 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 29, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
MARK E. SCHELL,
Plaintiff - Appellant.
v.
THE CHIEF JUSTICE AND JUSTICES No. 20-6044
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,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:19-CV-00281-HE)
_________________________________
Anthony J. Dick, Jones Day, Washington, D.C. (Jacob Huebert and Timothy Sandefur,
Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute, Phoenix
Arizona; and Charles S. Rogers, Oklahoma City, Oklahoma, with him on the briefs), for
Plaintiff -Appellant.
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.
_________________________________
McHUGH, Circuit Judge.
_________________________________
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.
2
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
The OBA
The Supreme Court of Oklahoma created the OBA, dubbed it “an official arm”
of the Court, and promulgated rules governing its operations. Okla. Stat. tit. 5, ch. 1,
3
app. 1, art. I, § 1. The OBA is governed by a seventeen-person Board of Governors,
all of whom must be OBA active members. Id. art. IV, § 1. The Board of Governors
selects an Executive Director and approves the disbursement of OBA funds. Id.
art. VI, § 1; art. VII, § 2.
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.
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
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the “Legislative Program” entity may draft proposed legislation. Third, the OBA is
permitted to “endorse ‘any proposal for the improvement of the law, procedural or
substantive . . . in principle.’” Id. (quoting art. VIII, § 4 of the OBA Bylaws)
(alteration in original).
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
5
industry (1) called for increased regulation of injection wells, (2) praised Al Gore for
his stances on climate change and against fossil fuels, (3) praised an author who
accused the industry of using “big money” to “takeover” government, and (4) urged
OBA members to “take action” and stand up against the oil and gas industry’s
takeover of the government. Id. at 29. And an article discussing tribal law accused
the state attorney general of advancing arguments before the United States Supreme
Court that were “‘disingenuous’ and the product of ‘uninformed bias.’” Id. (quoting
May 2016 Oklahoma Bar Journal article entitled “State Attorney General Argues
Against Tribal and State Interests”). Additionally, articles called pending legislation
regarding the judicial selection process an attack on the OBA and the Oklahoma
courts, with one article entitled “We Don’t Want to Be Texas.” Id.
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
6
groups [would] elect judges and justices and campaign contributions [would] buy
court opinions.’” Id. at 30–31 (alterations in original). Second, a May 2017 article
encouraged OBA members to warn the public about the harms of politics in the
judicial system. Third, a May 2018 article responded to criticism of Oklahoma’s
merit-based process for selecting judges. Fourth, a November 2018 article advocated
for allowing prisoners to bring tort claims against prisons and jails. Fifth, and finally,
articles in February and March of 2019 defended and advocated for the role of
lawyers in the state legislature.
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 28 U.S.C. §§ 2201, 2202 and 42 U.S.C. §§ 1983, 1988.
Count II raised First and Fourteenth Amendments free speech and freedom of
association challenges to the OBA’s use of mandatory bar dues to subsidize political
speech, without obtaining OBA members’ affirmative consent. Count II contended
the OBA, in accord with Janus, needed to create an opt-in dues system for the
7
subsidization of political and ideological speech not germane to the goal of regulating
the practice of law. To enforce his constitutional rights asserted in Count II,
Mr. Schell once again sought declaratory and injunctive relief through 28 U.S.C.
§§ 2201, 2202 and 42 U.S.C. §§ 1983, 1988. Count III, relying on Keller, raised a
First Amendment challenge to the OBA’s failure to adopt constitutionally adequate
safeguards to prevent the impermissible use of mandatory bar dues.
The defendants moved to dismiss in separate motions. The Chief Justice and
Associate Justices of the Oklahoma Supreme Court sought dismissal under Federal
Rule of Civil Procedure 12(b)(1) and (6), arguing (1) the individual Justices were not
proper parties as no individual Justice could grant Mr. Schell relief; (2) the Justices
were immune from suit; and (3) the federal court lacked jurisdiction over the action
or, in the alternative, should abstain from reviewing a matter of state law. The
Justices also adopted the forthcoming arguments “regarding the constitutionality of
the Oklahoma Integrated Bar and Dues” advanced by the other defendants. The
Justices, however, did not advance or adopt any argument, in either their motion to
dismiss or their reply brief on their motion to dismiss, based on the statute of
limitations. Next, Mr. Williams moved to dismiss under Rules 12(b)(1) and (6),
arguing (1) the OBA was immune from suit under the Eleventh Amendment; (2) the
district court lacked Article III jurisdiction because Mr. Williams could not provide
Mr. Schell any relief; (3) Lathrop and Keller upheld the constitutionality of
mandatory bar membership and dues; and (4) the OBA offers procedures for
segregating funds that comply with Keller. Within his lack-of-Article-III-standing
8
argument, Mr. Williams contended the statute of limitations governing § 1983 actions
barred considerations of most of Mr. Schell’s allegations regarding the Oklahoma
Bar Journal articles:
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
1
In his responses to the motions to dismiss, Mr. Schell, although citing the
pre-March 2017 article in support of his claim, did not address the statute of
limitations argument raised by Mr. Williams and the members of the OBA Board of
Governors.
9
Lathrop and Keller foreclosed Mr. Schell’s challenges to membership and mandatory
dues. 2 App. at 51 (“In light of the Supreme Court’s decisions in Lathrop and Keller,
plaintiff’s claims directed to compelled membership in the OBA and to the collection
and use of mandatory bar dues to fund activities germane to regulating the legal
profession and improving legal services fail.”) But the district court denied the
defendants’ motions to dismiss Count III—the OBA’s alleged failure to adopt
constitutionally adequate safeguards to prevent the impermissible use of mandatory
bar dues.
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 12(b)(6) motion to dismiss for failure
to state a claim.” Emps.’ Ret. Sys. of R.I. v. Williams Cos., 889 F.3d 1153, 1161 (10th
2
In reaching this conclusion, the district court did not address the statute of
limitations argument raised by Mr. Williams and the members of the OBA Board of
Governors.
10
Cir. 2018) (quotation marks omitted). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. Finally, “we
may affirm on any ground[] supported by the record” so long as the plaintiff has had
an opportunity to address the alternative ground. Bixler v. Foster, 596 F.3d 751, 760
(10th Cir. 2010) (quotation marks omitted).
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
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embraces freedom of speech.” N.A.A.C.P. v. Alabama, 357 U.S. 449, 460 (1958).
Thus, the Supreme Court “has repeatedly held that rights of association are within the
ambit of the constitutional protections afforded by the First and Fourteenth
Amendments.” Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539, 543
(1963). “[A]t the heart of the First Amendment is the notion that an individual should
be free to believe as he will, and that in a free society one’s beliefs should be shaped
by his mind and his conscience rather than coerced by the State.” Abood v. Detroit
Bd. of Educ., 431 U.S. 209, 234–35 (1977). “Freedom of association therefore plainly
presupposes a freedom not to associate.” Roberts v. U.S. Jaycees, 468 U.S. 609, 623
(1984).
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.
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
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legislative activity: (1) its executive director was a registered lobbyist and spent 5%
of his time on legislative activities; (2) the Bar took positions on pending legislation
involving matters such as compensation for judges and attorneys, making attorneys
notaries public, court reorganization, allowing for personal jurisdiction over non-
residents, laws governing federal tax liens, issues of curtesy and dower, and
jurisdiction of county courts over inter vivos trusts; (3) a state legislative committee
worked with legislators on some of the legislative matters on which the Bar took
positions; (4) a federal legislative committee worked on legislation “‘affecting the
practice of law, or lawyers as a class, or the jurisdiction, procedure and practice of
the Federal courts and other Federal tribunals, or creation of new Federal courts or
judgeships affecting [Wisconsin] and comparable subjects’”; (5) the formation of
special committees to focus and hold discussions on some legislative items, as well
as world peace initiatives; and (6) the publication of Wisconsin Bar Bulletins
suggesting changes in state and federal law and discussing progress of legislative
items. Id. at 835–39 (quoting Wisconsin Bar Board of Governors Minutes, Dec. 11,
1959).
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
13
“substantial unanimity” among its members. Id. at 833–34. And the plurality found
no meaningful distinction between mandatory bar membership and “union-shop
agreements between interstate railroads and unions of their employees[,] conditioning
the employees’ continued employment on payment of union dues, initiation fees and
assessments” that the Court had previously upheld. Id. at 842. Additionally, despite
the significant legislative activities of the Wisconsin Bar, the Lathrop plurality noted,
“legislative activity [was] not the major activity of the State Bar.” Id. at 839. The
plurality concluded the Supreme Court of Wisconsin and the Wisconsin Bar, “to
further the State’s legitimate interests in raising the quality of professional services,
may constitutionally require that the costs of improving the profession . . . be shared
by the subjects and beneficiaries of the regulatory program . . . even though the
organization created to attain the objective also engages in some legislative activity.”
Id. at 843. Thus, the plurality held mandating financial support for the Bar did not
infringe an attorney’s First Amendment, freedom of association right. Id. But,
concluding the plaintiff’s complaint lacked sufficiently specific allegations, the
plurality declined to reach the question of whether the structure of the Wisconsin Bar
violated an attorney’s First Amendment right to free speech. Id. at 845–46.
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.
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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).
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.
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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
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expenditures 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.’” Id. (quoting Lathrop, 367 U.S. at 843). Along these lines, the Supreme
Court noted
[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. at 17. 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.
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
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“countenanced . . . free speech violations.” Id. at 2460, 2465. The Supreme Court
held “the compelled subsidization of private speech seriously impinges on First
Amendment rights [and] cannot be casually allowed.” Id. at 2464. Concluding Abood
overemphasized the importance of “labor peace” where that compelling state interest
could be advanced without imposing a mandatory dues system, the Supreme Court
held public employees could not be forced to subsidize union collective-bargaining
activities as a condition of employment. Id. at 2465–66, 2486. And since Janus, two
Justices have stated they would reconsider Keller in light of Janus:
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
3
Justice Gorsuch joined Justice Thomas’s dissent. Jarchow v. State Bar of
Wis., 140 S. Ct. 1720, 1720 (2020).
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associational freedoms.’” Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298,
310 (2012) (alterations in original) (quoting Roberts, 468 U.S. at 623).
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
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for its analysis of the analogous—but not identical—expenditures by bar
associations. That discussion was not dicta. Keller’s holding is meaningfully distinct
from Abood’s holding for the same reason that bar associations are meaningfully
distinct from unions, despite the “substantial analogy” between the two types of
entities. Keller, 496 U.S. at 12. Specifically, the analysis conducted in Janus, which
drew into question the furtherance of the state’s interest in “labor peace” through
“agency shop” agreements, is not directly in play for “regulating the legal
profession” and “‘improving the quality of the legal service available” were the
interests identified in Keller in support of mandatory bar dues. Keller, 496 U.S. at 14(quoting Lathrop, 367 U.S. at 843).
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
4
The defendants argue some or all of Mr. Schell’s appeal is unripe and non-
justiciable because he does not allege the OBA has engaged in political or ideological
activities since the OBA adopted its new “Keller policy.” Yet, there is no reason
Mr. Schell must challenge the new policy to challenge the ongoing requirements of
mandatory membership and dues still in effect.
20
(10th Cir. 2015) (internal quotation marks omitted). That is particularly true when the
“dicta squarely relates to the holding[] itself, and therefore is assuredly not
gratuitous.” Id. For the reasons already explained, Keller’s discussion of
germaneness is related to, but distinct from, its discussion of the analogy between
unions and bar associations. And to the extent Janus enfeebled parts of Keller by
overruling Abood, we are nevertheless bound to “follow the case which directly
controls.” Rodriguez de Quijas, 490 U.S. at 484. Here, that case is Keller, unless and
until the Supreme Court tells us otherwise.
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 § 1983 claim is
21
dictated by the personal injury statute of limitations in the state in which the claim
arose.” McCarty v. Gilchrist, 646 F.3d 1281, 1289 (10th Cir. 2011). Oklahoma law
provides a two-year statute of limitations for “an action for injury to the rights of
another, not arising on contract.” Okla. Stat. tit., 12 § 95(A)(3). 5 Where Mr. Schell
initiated this action on March 26, 2019, only allegations occurring on or after
March 26, 2017, fall within the statute-of-limitations period. 6 Based on this
conclusion, neither of the direct examples of the OBA engaging in legislative activity
5
Although the appellees argue for application of a two-year statute of
limitations, they incorrectly cite Section 95(2) of Title 12 of the Oklahoma Statutes
as the governing provision of law. Because appellees identify the proper two-year
time period, we overlook the typographical error in their citation to authority.
6
In reaching this conclusion, we are aware that it remains an open question in
this circuit whether the continuing violation doctrine applies in the § 1983 context.
See Vasquez v. Davis, 882 F.3d 1270, 1277 (10th Cir. 2018) (“The continuing
violation doctrine was developed in the Title VII employment law context . . . and
this court has not yet decided whether it should apply to § 1983 claims.”). Assuming
the continuing violation doctrine applies, the burden was on Mr. Schell to raise an
argument under that doctrine and show similar violations occurred both before and
within the statute-of-limitations period. See Bruno v. W. Elec. Co., 829 F.2d 957, 961
(10th Cir. 1987) (placing burden on plaintiff to show and establish continuing
violation); see also Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th
Cir. 1980) (“While the statute of limitations is an affirmative defense, when the dates
given in the complaint make clear that the right sued upon has been extinguished, the
plaintiff has the burden of establishing a factual basis for tolling the statute.”). By not
responding to the statute-of-limitations argument raised by defendants/appellees
before the district court and on appeal, Mr. Schell never attempted to satisfy the
continuing violation doctrine standard. Furthermore, although the Chief Justice and
Associate Justices of the Oklahoma Supreme Court failed to raise a statute of
limitations defense in the district court, Mr. Schell, by not addressing the issue on
appeal, has waived the waiver. See United States v. Heckenliable, 446 F.3d 1048,
1049 n.3 (10th Cir. 2006) (failure of party to argue waiver results in waiver of initial
waiver argument).
22
alleged in Mr. Schell’s Amended Complaint falls within the statute-of-limitations
period, for those instances occurred in 2009 and 2014. Further, we do not consider
the publication of the 2016 Oklahoma Bar Journal articles. 7 Rather, only the six
articles published after March 2017 fall within the applicable limitations period.
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
7
These articles we do not consider based on the statute of limitations include
(1) a January 2016 article about Citizens United v. FEC, 558 U.S. 310 (2010); (2) a
February 2016 article about super PACs and the judiciary; (3) a March 2016 article
about the regulation of the oil and gas industry; (4) April 2016 articles about the
judicial selection process; (5) May 2016 articles touching on Citizens United, climate
change, the oil and gas industry, and tribal law; (6) a September 2016 article about
the influence of dark money in politics; and (7) a November 2016 article about
judicial branch funding. We also do not consider the September 2016 advertisement
in the Oklahoma Bar Journal for the keynote speech at the OBA’s Annual Meeting.
23
association claim merely by identifying activities by the OBA such as discussion of
reorganizing the judicial system or matters impacting the practice of law.
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
24
political or ideological in nature. Rather, they promote the important role of the
OBA’s attorney members in using their professional skills to interpret and advise on
pending legislation. And, the role of attorneys in legislatures is hardly a new concept
as, according to the Congressional Research Service, 214 members of the 116th
Congress held law degrees, with more than half the members of the United States
Senate holding law degrees. SEE JENNIFER E. MANNING, CONG. RSCH. SERV.,
R45583, MEMBERSHIP OF THE 116TH CONGRESS: A PROFILE, at 5 (Dec. 17, 2020).
Accordingly, the articles are germane to the OBA’s core function to advance the
interests of the profession.
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
8
Mr. Schell’s Amended Complaint also alleges that “[t]he OBA continues to
support and oppose state legislation” and that “OBA committees also draft and
promote state legislation.” App. at 28. These allegations lack the level of specificity
necessary to advance a First Amendment claim because they neither identify the type
of legislation the OBA supports, opposes, and drafts, nor allege that Mr. Schell
personally opposes any particular legislative activity undertaken by the OBA since
commencement of the statute-of-limitations period in March 2017. See Lathrop, 367
U.S. at 845–46 (plurality opinion). Finally, the “Legislative Program” aspect of the
OBA, as described by the Amended Complaint, is entirely in accord with those
legislative activities discussed in Lathrop as insufficient to support a First
Amendment claim. Compare App. at 27 (citing art. VIII, §§2, 3 of the OBA Bylaws),
with Lathrop, 367 U.S. at 835–39.
25
Mr. Schell from advancing a freedom of association claim, particularly to the extent
the OBA had engaged only in activities germane to the recognized purpose of a state
bar. The district court erred in two respects.
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 Federal Rule of Civil
Procedure 8, he did not attach the articles to his Complaint or his Amended
Complaint. And none of the defendants attached any of the articles in question to
their motions to dismiss. Thus, the articles were not in the record before the district
court, and subsequently are not in the record before us. Yet, Mr. Schell’s allegations
about the April 2017 and November 2018 publications make it plausible the articles
strayed from the germane purposes of the OBA and discussed matters in an
ideological manner.
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
9
If the district court conducted such an analysis, it did not express why it
believed all the OBA’s activities were germane.
26
tinge, because a few months earlier the OBA allegedly hosted a program speaker who
accused “wealthy conservative libertarians” of “paying for judicial junkets” through
judicial elections. Id. at 30. Thus, without viewing the article, it is impossible to
conclude the OBA did not advance a non-germane, ideological position through its
April 2017 publication of the Oklahoma Bar Journal. The same is true for the
November 2018 article about increasing the ability of prisoners to sue prisons and
jails. While the article might have promoted the potentially germane purpose of
encouraging attorneys to represent prisoners in such litigation, it is equally plausible
the article advocated for policies eliminating bars on a prisoner’s ability to advance
suits against prisons and jails, see Barrios v. Haskell Cnty. Pub. Facilities Auth., 432
P.3d 233, 235–41 (Okla. 2018) (holding the Oklahoma Governmental Tort Claims
Act is an invocation of state sovereign immunity against constitutional tort claims
against prisons). Bottom line, without the articles in the record, it is not possible to
conclude whether the OBA only furthered speech germane to the recognized
purposes of a state bar.
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
27
Lathrop and Keller necessarily foreclosed Mr. Schell’s Count I claim. See Crowe v.
Oregon State Bar, 989 F.3d 714, 727–29 (9th Cir. 2021) (concluding district court
erred in relying on Lathrop and Keller to foreclose broad freedom of association
claim based on mandatory bar membership where plaintiff alleged bar engaged in
activities not germane to its purpose).
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. 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. 10
10
A potential open issue is to what degree, in quantity, substance, or
prominence, a bar association must engage in non-germane activities in order to
support a freedom-of-association claim based on compelled bar membership. The
Lathrop plurality, in concluding that compelled membership in the state bar did not
“impinge[] upon protected rights of association,” thought it important that “the bulk
of State Bar activities serve[d]” the legitimate functions of the bar association. 367
U.S. at 843. The plurality concluded that “[g]iven the character of the integrated bar
shown on th[e] record,” compelled membership was constitutionally permissible
“even though” the bar “also engage[d] in some legislative activity.” Id. The plurality
also observed that “legislative activity [was] not the major activity” of the bar. Id. at
839. But because this issue was not adequately argued before us, we do not address it
now.
28
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.
29