Oklahoma Bar sees constitutional dues challenge reinstated
A lawsuit claiming the Oklahoma Bar Association’s mandatory tuition fees violate lawyers’ First Amendment rights to freedom of association has been revived after the Tenth Circuit found out on Tuesday that the group may be engaging in ideological activity unrelated to its main purpose.
The lower court did not analyze whether all of the bar group’s activities “were relevant 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 were not on file, attorney Mark E. Schell plausibly alleges that “the articles deviated from relevant objectives of the OBA and dealt with ideological issues, ”said the United States Court of Appeals for the Tenth Circuit.
One of the articles would criticize “big pennies and special interest groups” who donate to campaigns for judges and elected judges. The other section would argue for the ability of inmates to bring tort actions against prisons and prisons.
The lower court also misinterpreted US Supreme Court precedent by dismissing Schell’s claims challenging the state’s requirement that practicing lawyers join the bar, the court said.
Or Lathrop vs. Donohue or Keller v. California State Bar “Rectified a broad challenge to freedom of association with compulsory contributions” in a context where “at least some of the actions of the state bar might not be relevant to regulate the legal profession and improve the quality of legal services”, said the court of appeal.
Keller still in control despite being called into question in a more recent decision, the Tenth Home said. Keller upheld the constitutionality of membership and compulsory bar membership, as long as the membership fees are used to fund “German” activities for the primary purposes of state bar associations as a professional organization, and not for ” activities of an ideological nature which do not fall within these fields of activity.
The appeals court upheld the dismissal of Schell’s other claims.
In the event of a referral, the district court must allow discovery related to the articles. If the Oklahoma Bar Group and other defendants seek summary judgment, the district court will have to apply. Keller, said the court.
An open question is to what extent a bar should engage in non-German activities in order to support a freedom of association claim based on compulsory bar membership, the court said.
the Lathrop plurality, said compulsory bar membership can be allowed even when the bar engages in certain activities that could fall outside its legitimate functions, the Tenth Circuit said.
Judge Carolyn B. McHugh drafted the opinion with input from Judges Harris L. Hartz and David M. Ebel.
Schell is represented by Jones Day, the Scharf-Norton Center for Constitutional Litigation, and Charles S. Rogers in Oklahoma City. 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.