Schell v. OK Supreme Court Justices

2 F.4th 1312

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 29, 2021
• Docket: 20-6044
• Status: Published

Opinion

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

4 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

11 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

12 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.

14 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.

15 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

16 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

17 “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).

18 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

19 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.