Oklahoma Bar Sees Constitutional Challenge to Dues Reinstated

A lawsuit claiming the Oklahoma Bar Association’s mandatory bar dues violate attorneys’ First Amendment rights to freedom of association was revived after the Tenth Circuit found Tuesday the group might engage in ideological activities unrelated to its core purpose.

The lower court failed to analyze whether all the bar group’s activities “were germane to regulating the legal profession and improving the quality of legal services in Oklahoma,” the appeals court said.

Although two articles cited in support of the challenge and published by the Oklahoma Bar Journal weren’t in the record, lawyer Mark E. Schell plausibly alleges “the articles strayed from the germane purposes of the OBA and discussed matters in an ideological matter,” the U.S. Court of Appeals for the Tenth Circuit said.

One of the articles allegedly criticizes “big money and special interest groups” donating to campaigns for elected judges and justices. The other article allegedly advocates for the ability of inmates to bring tort claims against prisons and jails.

The lower court also misconstrued controlling U.S. Supreme Court precedent in dismissing Schell’s claims challenging the state’s requirement that practicing attorneys join the bar group, the court said.

Neither Lathrop v. Donohue nor Keller v. State Bar of California “addressed a broad freedom of association challenge to mandatory dues” in a context where “at least some of the state bar’s actions might not be germane to regulating the legal profession and improving the quality of legal services,” the appeals court said.

Keller still controls despite being called into question in a more recent decision, the Tenth Circuit said. Keller upheld the constitutionality of mandatory bar membership and dues, so long as the dues are used to fund activities”germane” to state bar associations’ primary purposes as a professional organization, and not for “activities of an ideological nature which fall outside of those areas of activity.”

The appeals court affirmed dismissal of Schell’s other claims.

On remand, the district court must allow for discovery related to the articles. If the Oklahoma bar group and other defendants seek summary judgment, the district court will need to apply Keller, the court said.

An open question is to what extent a bar association must engage in non-germane activities in order to support a freedom-of-association claim based on mandatory bar membership, the court said.

The Lathrop plurality said compelled bar membership may be permissible even where the bar engages in some activities that might fall outside of its legitimate functions, the Tenth Circuit said.

Judge Carolyn B. McHugh authored the opinion with Judges Harris L. Hartz and David M. Ebel joining.

Schell is represented by Jones Day, the Scharf-Norton Center for Constitutional Litigation, and Charles S. Rogers in Oklahoma City. The state bar defendants are represented by Wilmer Cutler Pickering Hale and Dore LLP, Whitten Burrage, Phillips Murrah PC, and the Maye Law Firm.

The case is Schell v. Williams, 10th Cir., 20-6044, 6/29/21.