Janus doesn't block mandatory bar association dues - 10th Circuit

People hold signs outside the U.S. Supreme Court, waiting for the Janus v. American Federation of State, County, and Municipal Employees case, June 25, 2018. REUTERS/Toya Sarno Jordan
  • 10th Circuit is third appeals court to rule that 2018 Supreme Court ruling on union dues doesn't apply to compulsory bar membership
  • But the court revived claims that the Oklahoma Bar Association improperly spent dues on publishing politically charged articles

(Reuters) - A U.S. appeals court on Tuesday said U.S. Supreme Court precedent precludes an Oklahoma lawyer's claim that a state law requiring lawyers to join the state bar association and pay dues violates his free-speech rights, but revived claims that the organization improperly spent dues on political activities.

A unanimous three-judge panel of the 10th U.S. Circuit Court of Appeals said the Supreme Court's 2018 decision in Janus v. AFSCME, which stipulated that public-sector unions cannot collect fees from nonmembers, did not overturn the high court's 1990 ruling in Keller v. State Bar of California that allowed state bar associations to require members to pay dues.

The court, however, said an Oklahoma federal judge must take a closer look at claims by lawyer Mark Schell that the state bar association used compulsory dues to publish articles criticizing campaign contributions by special interest groups and lobbying in favor of a bill to allow prisoners to bring tort claims against state prisons.

The 7th and 9th Circuits came to the same conclusion regarding Janus in cases involving compulsory bar association dues in Wisconsin and Oregon. The Supreme Court last year declined to take up the Wisconsin case.

Jacob Huebert of the conservative Goldwater Institute, who represents Schell, said he expects the Supreme Court will ultimately have to resolve the dues issue.

Schell, who is senior vice president and general counsel at Tulsa-based oil and gas company Unit Corp, is also represented by Jones Day.

The Oklahoma Bar Association, which is represented by Wilmer Cutler Pickering Hale and Dorr, did not respond to a request for comment.

At least 30 states require lawyers to join their state bar associations and pay dues in order to practice. The Supreme Court in Keller upheld those requirements, ruling that states have a compelling interest in regulating the legal profession, but said dues could only be spent on activities germane to that purpose.

The court in Keller relied in part on its 1977 ruling in Abood v. Detroit Board of Education, which said public-sector unions could compel nonmembers to pay fees toward collective bargaining.

The justices overturned Abood in the 2018 Janus ruling, finding that so-called "agency fees" violated non-union members' free-speech rights because bargaining with the government is inherently political.

Schell in a 2019 lawsuit argued that the Supreme Court in Keller found that the same rule applies to unions and bar associations, and as a result, Janus also rendered compulsory bar association dues unconstitutional.

Schell also claimed the Oklahoma Bar Association violated members' free-speech rights by lobbying on controversial legislation and publishing politically charged articles in its Oklahoma Bar Journal.

U.S. District Judge Joe Heaton in Oklahoma City dismissed the case last year, saying the challenge to compulsory membership was foreclosed by Keller and the remaining claims were moot after the bar association adopted new spending safeguards.

The 10th Circuit on Tuesday agreed that Keller could not be implicitly overruled in the Janus case.

"The Supreme Court may reexamine its precedent on mandatory bar dues, but it did not do so in Janus," Circuit Judge Carolyn McHugh wrote.

But the court said that because the record in the case did not contain copies of the journal articles cited by Schell, those claims should proceed to discovery.

The panel included Circuit Judges Harris Hartz and David Ebel.

The case is Schell v. Oklahoma Supreme Court Justices, 10th U.S. Circuit Court of Appeals, No. 20-6044.

For Schell: Anthony Dick of Jones Day; Jacob Huebert of the Goldwater Institute

For the Oklahoma Bar Association: Daniel Volchok of Wilmer Cutler Pickering Hale and Dorr

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.