Oklahoma Lawyers Get Closer—But Not Close Enough—to First Amendment Freedom

April 13, 2020
By Jacob Huebert and Kileen Lindgren

Oklahoma has long required attorneys in the state to join and pay dues to the Oklahoma Bar Association (OBA)—and the OBA has long used lawyers’ mandatory dues to advocate positions on controversial political issues from tort reform to judicial selection to campaign finance. But now, the OBA has taken an important step to better respect lawyers’ First Amendment rights—thanks to Mark E. Schell, an Oklahoma lawyer who brought a lawsuit against the OBA, represented by the Goldwater Institute and members of its pro bono program, American Freedom Network (AFN).

Like other attorneys across the country who are suing their mandatory bar associations, Schell argues that he shouldn’t have to join or pay a bar association just to be allowed to earn a living practicing law. He also argues that, as long as he’s forced to pay dues, the OBA should provide safeguards to ensure that his money isn’t used to pay for political advocacy that has nothing to do with regulating the legal profession.

The U.S. Supreme Court said mandatory bar associations have to do at least that much in Keller v. State Bar of California. In Keller, the Court said that state bar associations can only use mandatory dues for activities that are related to regulating the legal profession and improving the quality of legal services. The Court ruled that using dues for political and ideological advocacy that isn’t related to those purposes violates attorneys’ right to freedom of speech.

The Court also said that, to ensure that attorneys can protect their rights, bar associations have to provide certain safeguards. Those include: (1) giving attorneys information about how their dues are used so they can object to inappropriate activities; (2) putting some or all of an objecting attorney’s dues in escrow until the objection is resolved; and (3) having objections resolved by a neutral third party.

The Supreme Court issued the Keller decision in 1990, but the OBA apparently didn’t get the message. When Schell filed his lawsuit in 2019, the OBA still hadn’t provided any of the safeguards Keller called for: It didn’t give lawyers specific details of how their dues were used, and if a lawyer objected to the OBA’s use of dues, the OBA didn’t put the lawyer’s dues in escrow and decided for itself whether the use was proper.

After Schell filed his suit, that changed. In September 2019, the federal district court denied OBA officials’ motion to dismiss Schell’s challenge to the OBA’s lack of safeguards, ruling that his allegations, if true (which they were), would “support a successful claim.” Then, in March 2020, the OBA Board of Governors voted to change the OBA’s rules—and the OBA went from having almost no safeguards for attorneys’ First Amendment rights to having some of the strongest of any mandatory bar association in the country.

Under the new rules, Oklahoma attorneys can get details of the OBA’s uses of their money; the OBA will set aside an attorney’s full dues amount until a dispute is resolved, and attorneys’ objections will be decided by a neutral mediator. Better yet, attorneys now can opt out of paying for any of the OBA’s lobbying entirely—even on issues related to legal services and the legal profession.

That’s all good—but it’s still not good enough to really respect lawyers’ First Amendment rights. Attorneys shouldn’t have to join an organization they don’t want to belong to at all, and they shouldn’t have to constantly monitor and police a bar association’s activities to make sure they aren’t being forced to pay for inappropriate political advocacy. Attorneys also shouldn’t have to opt out to avoid paying for bar association lobbying; instead, people who want to pay for it should have to opt in.

That’s why Schell is still challenging Oklahoma’s requirements that he join and pay dues to the OBA. The district court ruled against him on those claims, so now he’s appealing his case to the U.S. Court of Appeals for the Tenth Circuit.

AFN attorney Anthony Dick, a partner at Jones Day in Washington, D.C., who will argue Schell’s appeal, says the “case is important to vindicate the fundamental First Amendment principle that no person should be forced to join or support an organization engaged in political activities that he or she opposes.”

And the issue is of special importance to AFN attorney Charles Rogers, a former Oklahoma Senior Assistant Attorney General who served as Schell’s local counsel in the district court and is co-counsel with Dick and the Goldwater Institute on appeal. “The reason I became involved in Mark Schell’s case is that it involves vindicating both his and my First Amendment liberties,” Rogers says.

Rogers continues: “If we have the right to free speech, we also have the liberty from being compelled by the government to accept its speech of others as our own. If we have the right to freely associate with others, we also have the liberty to be free not to associate or be associated with others under government compulsion. The Oklahoma Bar Association engages in so much more than just those things germane to regulating the competent, honest, and faithful practice of law in Oklahoma, few of which I would either subscribe to or support if not unconstitutionally compelled.”

“Oklahoma’s lawyers deserve our freedom. I am proud to associate with this effort of the Goldwater Institute.”

Thanks to Anthony and Charles for helping us litigate for liberty in Oklahoma!

FACES OF FREEDOM

Anthony Dick’s practice focuses on constitutional, appellate, and complex civil litigation, with a particular focus on challenges to government regulation. He has successfully briefed several cases in the U.S. Supreme Court and has argued cases in multiple U.S. Courts of Appeals, including the Fourth, Sixth, Seventh, and Ninth Circuits. Anthony has worked on several high-profile First Amendment matters, including those involving free speech and Anti-SLAPP laws. His constitutional experience also includes representing the City of Detroit regarding the constitutional issues involved in reducing its public pension obligations in the largest municipal bankruptcy in history.

Before joining the Firm, Anthony served as a law clerk to Justice Samuel A. Alito Jr. of the United States Supreme Court and Judge Thomas B. Griffith of the U.S. Court of Appeals for the D.C. Circuit. Anthony is a member of the Edward Coke Appellate Inn of Court. He also serves as Chairman of the Board of Directors of the Foundation for Individual Rights in Education (FIRE).

Charles Rogers has a distinguished career in both state and county public service, most recently acting as Senior Assistant Attorney General for the State of Oklahoma. His experience includes unique roles as a Deputy Oklahoma Appellate Public Defender and a Municipal Human Rights Commissioner for the city of Norman. He has a distinguished Martindale-Hubbell peer rating and has been featured in Marquis Who’s Who. Charles received his JD at the University of Oklahoma College of Law and has been married to his wife, Nancy, for over 40 years. He is actively involved in his church and as a Unit Commissioner for the Boy Scouts of America.

Jacob Huebert is a Senior Attorney and Kileen Lindgren is the Legal Programs Manager at the Goldwater Institute.