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Oklahoma Bar Argues Mandatory Dues Are Constitutional in Lawyer's First Amendment Suit

Oklahoma City
Oklahoma City

Downtown Oklahoma City. Credit: Gerson Repreza/Shutterstock.com

The Oklahoma Bar Association—like counterparts in Texas, North Dakota and Oregon—is facing a lawsuit alleging it’s unconstitutional to force lawyers to join the bar and pay dues, only to have that money spent on alleged political and ideological speech.

Oklahoma attorney Mark Schell in late March sued Oklahoma Bar executive director John Morris Williams, who responded Wednesday with a motion to dismiss the case.

William's pleading argued that the bar’s compulsory membership and mandatory dues are constitutional, and there are already safeguards in place to ensure that lawyers’ dues only pay for regulating attorneys and improving legal services.

Lawyers have made similar claims in cases in three other states, relying on a 2018 U.S. Supreme Court case, Janus v. AFSCME, that ruled that public sector nonunion workers cannot be required to pay union dues as a condition of employment.

“Since the Supreme Court’s decision in Janus, they shouldn’t be spending money on any sort of political speech unless a member has given affirmative consent in advance,” said Jacob Huebert, senior attorney with the Goldwater Institute, which is supporting similar litigation in North Dakota, Oregon and Oklahoma. He said Schell “thinks on principal, his bar fees shouldn’t go to any political speech, whether he agrees with it or not.”

Oklahoma Bar president Charles Chesnut wrote in an email that he feels good about the law at issue and hopes the court sees it that way, too.

"I believe that the OBA has done nothing wrong and certainly has the right to exist under its present structure. Secondly, it appears that Mr. Williams is not a proper party," Chesnut said.

Schell claimed in his March 26 complaint in Schell v. Williams, in the U.S. District Court for the Western District of Oklahoma, that he opposes and doesn’t want to associate with the bar’s alleged political and ideological speech and making him do so violates the First and Fourteenth Amendments. He also claimed that the bar opposed legislation on tort reform and judicial selection methods and that the Oklahoma Bar Journal has published articles critical of campaign finance law, oil and gas regulations, and more. Schell claimed that the bar has failed to use safeguards to ensure dues aren’t spent on such activities.

The lawsuit recommends that the state could regulate lawyers without requiring them to join the bar association, or the state could ensure the bar uses dues only for core functions. Another way would be creating an “opt-in” system for lawyers to give affirmative consent when they do want to subsidize the bar’s speech.

Williams argued in his April 24 motion to dismiss that all the speech Schell has complained about counts as protected government speech because the Oklahoma Supreme Court has significant control over the bar’s activities over budgeting, which ensures its expenditures all advance the bar’s purpose.

According to the motion, there is well-settled case law that it’s constitutional for states to require lawyers to become bar members and pay dues in order to become licensed.

Williams argued that Janus pertains to unions charging dues to nonmembers, and it shouldn’t become controlling case law for bar associations and lawyers. Other cases, Lathrop v. Donohue and Keller v. State Bar of California, apply specifically to the bar and lawyers. Williams argues that the Oklahoma Bar maintains an open, public budget process, and it does have an opt-out procedure for lawyers to object to spending they disagree with, which follows requirements in Keller.

Williams added in the motion that the court should dismiss Schell’s case, since he never mentioned whether he participated in the bar’s budget process, or whether he sought a dues refund then was denied.

The motion also said that Schell has sued the wrong person because Williams doesn’t have the enforcement power that’s necessary to provide relief. The Oklahoma Supreme Court has power over licensing requirements and the bar’s board of governors has authority over dues.