Tenth Circuit rules on Oklahoma Bar Association membership and dues challenge  

On June 29, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit ruled on a challenge to the constitutionality of mandatory bar membership and dues, affirming in part and reversing in part the district court’s decision. A majority of states have mandatory bar associations. 

Parties to the suit

The plaintiff is Mark Schell, an Oklahoma attorney. The Goldwater Institute, which describes itself as a “free-market public policy research and litigation organization,” is representing Schell, along with Jones Day and Charles S. Rogers. The defendants are the justices of the Oklahoma Supreme Court and the Oklahoma Bar Association’s board of governors and executive director. Attorneys from Wilmer Cutler Pickering Hale and Dorr LLP, Whitten Burrage, Phillips Murrah P.C., and Maye Law Firm represent the defendants.        

What’s at issue, and how the lower court ruled

Schell’s lawsuit, which was originally filed in March 2019, claimed that the Oklahoma Bar Association’s (OBA) compulsory membership and mandatory dues violated attorneys’ First and Fourteenth Amendment rights. Schell asked the court to “declare Oklahoma’s bar membership requirement unconstitutional and order Defendants to stop forcing attorneys to subsidize the OBA’s speech without their affirmative consent, or, alternatively, to order Defendants to adopt procedures to protect attorneys from being forced to subsidize OBA speech and activities that are not germane to improving the quality of legal services and regulating the legal profession.”

On Sept. 18, 2019, Judge Joe Heaton of the U.S. District Court for the Western District of Oklahoma dismissed two of the plaintiff’s claims. Heaton, a George W. Bush (R) appointee, wrote:   

In light of the Supreme Court’s decisions in [Lathrop v. Donohue (1961)] and [Keller v. State Bar of Calif. (1990)], 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. To the extent that plaintiff contends the recent case of [Janus v. AFSCME (2018)] requires a different result, the court is unpersuaded. Janus involved the payment of agency fees by non-members of a public employee union. While there are some parallels between Janus and the circumstances here, there are also differences. There is also no suggestion in Janus that either Lathrop or Keller were overruled or otherwise called into question. In such circumstances, the court is obliged to follow the cases which most directly control, and therefore declines to speculate as to whether the Supreme Court might reach some different result if it were to revisit either Lathrop or Keller. 

In March 2020, the district court dismissed a third claim as moot and terminated the case. Schell appealed to the U.S. Court of Appeals for the Tenth Circuit. 

How the Tenth Circuit ruled

On June 29, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit unanimously affirmed the district court’s ruling that mandatory bar dues were not unconstitutional and reversed and remanded the district court’s ruling on mandatory bar membership, saying that the lower court “erred by relying upon Lathrop and Keller to dismiss Mr. Schell’s freedom of association claim.”

Judge Carolyn McHugh, a Barack Obama (D) appointee, wrote: 

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. … Thus, the district court was incorrect to conclude Lathrop and Keller necessarily foreclosed Mr. Schell’s Count I claim. …

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 nongermane Oklahoma Bar Journal articles published within the statute-of-limitations period.

Judge Harris Hartz, appointed by W. Bush, and Senior Judge David Ebel, appointed by President Ronald Reagan (R), joined McHugh’s opinion.

The case name and number are Schell v. Oklahoma Supreme Court Justices, et al. (20-6044).  

About the Tenth Circuit  

The U.S. Court of Appeals for the Tenth Circuit hears appeals from the district courts within its jurisdiction, which includes Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. The chief judge of the Tenth Circuit is Timothy Tymkovich, a W. Bush appointee. Of the court’s 10 active judges, W. Bush appointed three, Obama appointed five, and Donald Trump (R) appointed two. The court has two vacancies.  

What we’re reading

• IndyStar, “In win for Indiana teachers unions, federal judge temporarily blocks new state law,” June 30, 2021
• New Jersey 101.5, “Pro-union negotiations expansion stalls in NJ legislature,” June 27, 2021
• Capitol News Illinois, “Chicago Public Schools employees ask U.S. Supreme Court to hear challenge to union dues,” June 25, 2021

The big picture

Number of relevant bills by state

We are currently tracking 96 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue. 

• Delaware HB237: This bill would grant select law enforcement officers the right of organization and representation.
  • Democratic sponsorship.
  • Senate passed June 30. 
• Illinois HB2521: This bill would allow electronic signatures on petitions submitted for selecting an exclusive bargaining representative. It would allow certification elections to be conducted electronically. It would also prohibit an employer from promising or taking action against an employee for participating in a strike.
  • Democratic sponsorship.
  • Sent to Gov. J.B. Pritzker (D) on June 28. 
• Massachusetts H2038: This bill would amend the laws governing public-sector worker strikes.
  • Bipartisan sponsorship. 
  • Joint Labor and Workforce Development Committee hearing July 13.
• Massachusetts H2060: This bill would establish that the personal contact information of public-sector workers cannot be made public. It would allow such information to be disclosed to labor unions.
  • Democratic sponsorship.
  • Joint Labor and Workforce Development Committee hearing July 13.
• Massachusetts H2061: This bill would establish that the personal contact information of public-sector workers cannot be made public. It would allow such information to be disclosed to labor unions. 
  • Democratic sponsorship.
  • Joint Labor and Workforce Development Committee hearing July 13.

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