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Schell v. Chief Justice and Justices of the Oklahoma Supreme Court.

No. 20-6044.  W.D.Okla. Judge McHugh. Freedom of Speech—Freedom of Association—Mandatory Bar Membership—Impermissible Use of Funds—Statute of Limitations.

June 28, 2021


The Supreme Court of Oklahoma created the Oklahoma Bar Association (OBA), deemed it “an official arm” of the court, and promulgated rules governing its operation. Oklahoma law provides that persons who are not OBA active members may not practice law in Oklahoma, absent narrow exceptions. OBA members must pay annual dues. Plaintiff is a licensed OBA attorney who filed suit to invalidate Oklahoma’s requirement that practicing attorneys join the OBA and pay mandatory dues. Plaintiff alleged that the OBA used members’ mandatory dues to engage in speech, including political and ideological speech, by publicly opposing a controversial tort reform bill and publishing certain articles that he contended were political and ideological, rather than merely informative, in its Oklahoma Bar Journal. Plaintiff also alleged that the OBA did not use adequate safeguards to protect against the impermissible use of funds.

The district court dismissed plaintiff’s First and Fourteenth Amendment free speech and freedom of association challenges to membership and dues for failure to state a claim. The court permitted the challenge as to the spending procedures to proceed, but when the OBA enacted new safeguards consistent with plaintiff’s demands, the parties agreed the new procedures mooted plaintiff’s remaining claim.

Plaintiff appealed the dismissed rulings as to membership and dues. The First Amendment permits mandatory bar dues, but they may not be used to fund activities that are ideological in nature and fall outside activities germane to the association’s goals. In accordance with US Supreme Court precedent, the Tenth Circuit considered the germaneness of the alleged activities to the OBA’s goals and purposes. Plaintiff’s allegations about improper legislative activity and publication of certain articles fell outside this statute of limitations period. Of the six Oklahoma Bar Journal articles appearing within the appropriate time period, four appear germane to the goal of improving the quality and availability of legal services in Oklahoma and are thus permissible non-attorney-disciplinary activities. However, the remaining two may fall outside activities germane to the OBA’s mission because one criticized “big money and special interest groups” making campaign contributions and electing judges and justices, and the other advocated for the ability of prisoners to bring tort suits against prisons and jails. Therefore, plaintiff’s allegations as to these articles are plausible, and the district court erred by dismissing them.

The dismissal of one count of plaintiff’s amended complaint was affirmed. The dismissal of the freedom of association claim was reversed and the case was remanded to permit discovery relative to the two potentially non-germane Oklahoma Bar Journal articles.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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