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Schell v. Oklahoma Supreme Court Justices

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Schell v. Oklahoma Supreme Court Justices
Case number: 5:19-cv-00281
Status: Pending
Important dates
Filed: March 26, 2019
District court decision:
March 25, 2020
Appeals court decision:
Aug. 25, 2021
Supreme Court decision:
April 4, 2022
District court outcome
The district court ruled that the Oklahoma Bar Association membership requirements do not violate the Constitutional rights of members.
Appeals court outcome
The Tenth Circuit affirmed in part and reversed in part the district court's decision.
Supreme Court outcome
Certiorari denied.

This case is one of over a hundred public-sector union lawsuits Ballotpedia tracked following the U.S. Supreme Court's 2018 decision in Janus v. AFSCME. These pages were updated through February 2023 and may not reflect subsequent case developments. For more information about Ballotpedia's coverage of public-sector union policy in the United States, click here. Contact our team to suggest an update.

Schell v. Oklahoma Supreme Court Justices is a case pending in the U.S. District Court for the Western District of Oklahoma. The case was remanded to the Western District of Oklahoma by the U.S. Court of Appeals for the Tenth Circuit. On August 25, 2021, the Tenth Circuit denied the plaintiff's request for an en banc rehearing of the June 2021 decision in which a three-judge panel affirmed in part and reversed in part the Western District of Oklahoma's March 2020 decision in favor of the defendants. In light of the U.S. Supreme Court's 2018 ruling in Janus v. AFSCME, the plaintiff challenged the constitutionality of the Oklahoma Bar Association's (OBA) membership and fee requirements. The Supreme Court denied review of the case on April 4, 2022.[1][2][3][4][5][6][7]

HIGHLIGHTS
  • The parties to the suit: The plaintiff is Mark Schell, a lawyer in Oklahoma. The defendants are the Chief Justice and Justices of the Oklahoma Supreme Court, the Oklahoma Bar Association’s Board of Governors, and Oklahoma Bar Association Executive Director John M. Williams.
  • The issue: In light of Janus v. AFSCME, do the Oklahoma State Bar Association membership and fee requirements violate First and Fourteenth Amendment rights?
  • The presiding judges: Judge Joe Heaton presided over the district court proceedings. The three-judge appellate panel included Tenth Circuit Judges Carolyn McHugh, Harris Hartz, and David Ebel.
  • The outcome: The case is pending before the U.S. District Court for the Western District of Oklahoma.

    • Procedural history

    The plaintiff is Mark Schell, a lawyer in Oklahoma. He is represented by counsel from the Goldwater Institute, Jones Day, and the Oklahoma Attorney General's Office. The defendants are the Chief Justice and Justices of the Oklahoma Supreme Court, the Oklahoma Bar Association’s Board of Governors, and Oklahoma Bar Association Executive Director John M. Williams. The defendants are represented by counsel from Maye Law Firm, Miller Dollarhide, Phillips Murrah, Whitten Burrage, and WilmerHale.[2][3][1]

    Below is a brief procedural history of the lawsuit:[2][3][4][5][6][7]

    • March 26, 2019: The plaintiff filed his lawsuit on March 26, 2019, in the U.S. District Court for the Western District of Oklahoma. The complaint stated the following three claims: 1) “Compelled membership in the OBA violates attorneys’ First and Fourteenth Amendment rights to free association and free speech;” 2) “The collection and use of mandatory bar dues to subsidize the OBA’s speech— including its political and ideological speech—violates attorneys’ First and Fourteenth Amendment rights to free speech and association;” and 3) “The OBA violates attorneys First and Fourteenth Amendment rights by failing to provide safeguards to ensure mandatory dues are not used for impermissible purposes.”[4]
    • May 15, 2019: The plaintiff filed an amended complaint.
    • June 21, 2019: The defendants filed a motion to dismiss the plaintiff’s amended complaint.
    • July 19, 2019: The plaintiff filed a response to the defendants’ motion to dismiss.
    • September 18, 2019: The district court dismissed parts one and two of the plaintiff’s claim, but did not dismiss the third part.
    • March 25, 2020: The plaintiff’s third claim was dismissed as moot and the court case was dismissed.
    • April 2, 2020: An appeal was docketed with the U.S. Court of Appeals for the Tenth Circuit.
    • June 29, 2021: A three-judge panel of the Tenth Circuit affirmed in part and reversed in part the district court’s decision. The panel remanded the case to the district court to allow the plaintiff to conduct discovery on his freedom of association claim.
    • August 25, 2021: The same panel withdrew its June 2021 opinion and replaced it with a revised opinion. The panel partially granted the plaintiff's request for a panel rehearing and denied the plaintiff's request for an en banc rehearing.
    • November 22, 2021: The plaintiff filed a writ of certiorari to the U.S. Supreme Court.
    • April 4, 2022: The Supreme Court denied review of the case.

    For a list of available case documents, click here.

    Decision

    District court decision

    On September 18, 2019, Judge Joe Heaton partially granted the defendants’ motion to dismiss. The plaintiff’s first two claims were dismissed, but the third was not. Heaton ruled that compulsory membership was not unconstitutional, but additional safeguards might be necessary to ensure membership fees did not fund activities beyond those related to the regulation of the profession. Heaton wrote the following in the court's opinion:[5]

    “

    In light of the Supreme Court’s decisions in [Lathrop v. Donohue (1961)] and [Keller v. State Bar of Calif. (1990)], 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. To the extent that plaintiff contends the recent case of [Janus v. AFSCME (2018)] requires a different result, the court is unpersuaded. Janus involved the payment of agency fees by non-members of a public employee union. While there are some parallels between Janus and the circumstances here, there are also differences. There is also no suggestion in Janus that either Lathrop or Keller were overruled or otherwise called into question. In such circumstances, the court is obliged to follow the cases which most directly control, and therefore declines to speculate as to whether the Supreme Court might reach some different result if it were to revisit either Lathrop or Keller. [...]

    Plaintiff’s first and second claims will be dismissed.

    The court reaches a different conclusion as to the third claim, which challenges whether appropriate safeguards are in place to meet Keller standards, i.e., whether the procedures appropriately protect the rights of members who do not wish to subsidize activities beyond those germane to improving legal services and regulating the profession. The complaint alleges that the OBA’s proposed budget does not identify planned expenditures with sufficient specificity for members to make a meaningful decision as to whether or how to challenge a proposed expenditure or category of expenditures. It alleges that the OBA’s procedures do not permit resolution of a member’s objections by an impartial decision maker. It also alleges the OBA does not require any portion of an objecting member’s dues to be placed in escrow. ... Those allegations potentially support a successful claim under the standards set out in Keller. The motions will be denied as to the third claim.[8]

    		”

    Heaton dismissed the third claim as moot and terminated the case on March 25, 2020.[2]

    Heaton was appointed by President George W. Bush (R).

    Appellate court decision

    On June 29, 2021, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit—Judges Carolyn McHugh, Harris Hartz, and David Ebel— affirmed the district court’s ruling that mandatory bar dues were not unconstitutional and reversed and remanded the district court’s ruling on mandatory bar membership, saying that the lower court “erred by relying upon Lathrop and Keller to dismiss Mr. Schell’s freedom of association claim.” McHugh wrote:[6]

    “

    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.” ... 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.

    [...]

    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.[8]

    		”

    On August 25, 2021, the same panel withdrew its June 2021 opinion and replaced it with a revised opinion. The panel partially granted the plaintiff's request for a panel rehearing and denied the plaintiff's request for an en banc rehearing. McHugh wrote:[7]

    “

    Mr. Schell moves for rehearing en banc and panel rehearing, contending (1) Keller does not authorize mandatory bar dues and (2) the panel should clarify the scope of discovery permitted on remand. We grant the motion for the limited purpose of addressing Mr. Schell’s second argument. “The district court has broad discretion over the control of discovery.” [SEC v. Merrill Scott & Assocs., Ltd., 2010]. Thus, in identifying the April 2017 and November 2018 Oklahoma Bar Journal articles as matters for discovery, we set a floor on the record the parties will need to develop before the district court can consider a dispositive motion.[8]

    		”

    McHugh was appointed by President Barack Obama (D). Hartz was appointed by President George W. Bush (R). Ebel was appointed by President Ronald Reagan (R).

    Legal context

    Janus v. AFSCME (2018)

    See also: Janus v. AFSCME

    On June 27, 2018, the Supreme Court of the United States issued a 5-4 decision in Janus v. American Federation of State, County, and Municipal Employees (Janus v. AFSCME), ruling that public-sector unions cannot compel non-member employees to pay fees to cover the costs of non-political union activities.[9]

    This decision overturned precedent established in Abood v. Detroit Board of Education in 1977. In Abood, the high court held that it was not a violation of employees' free-speech and associational rights to require them to pay fees to support union activities from which they benefited (e.g., collective bargaining, contract administration, etc.). These fees were commonly referred to as agency fees or fair-share fees.[9]

    Justice Samuel Alito authored the opinion for the court majority in Janus, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch. Alito wrote, "Abood was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for the past 41 years. Abood is therefore overruled."[9]

    Related litigation

    To view a complete list of the public-sector labor lawsuits Ballotpedia tracked between 2019 and 2023, click here.

    Number of federal lawsuits by circuit

    Between 2019 and 2023, Ballotpedia tracked 191 federal lawsuits related to public-sector labor laws. The chart below depicts the number of suits per federal judicial circuit (i.e., the jurisdictions in which the suits originated).

    Public-sector labor lawsuits on Ballotpedia

    See also: Public-sector union policy in the United States, 2018-2023

    Click show to view a list of cases with links to our in-depth coverage.

    v • e
    Public-sector labor lawsuits
    Federal lawsuits

    Adams v. Teamsters Union Local 429 • Akers v. Maryland State Education Association • Aliser v. SEIU California • Allen v. Ohio Civil Service Employees Association • Allen v. Santa Clara County Correctional • Anderson v. SEIU Local 503 • Babb v. California Teachers Association • Baisley v. International Association of Machinists and Aerospace Workers • Belgau v. Inslee • Bennett v. AFSCME • Bermudez v. SEIU Local 521 • Bierman v. Dayton • Boudreaux v. Louisiana State Bar • Boyle v. SEIU California • Brice v. California Faculty Association • California v. Azar • Campos v. Fresno Deputy Sheriff’s Association • Carey v. Inslee • Casanova v. IAM Local 701 • Chandavong et al. v. Fresno Deputy Sheriff's Association et al. • Cook v. Brown • Cooley v. California Statewide Law Enforcement Association • Crowe v. Oregon State Bar • Cruz v. Union Independiente Autentica de Empleados de la Autoridad de Acueductos y Alcantarillados • Danielson v. Inslee • Diamond v. Pennsylvania State Education Association • Doughty v. State Employees Association of New Hampshire, SEIU, Local 1984 • Durst v. OEA • Few v. United Teachers Los Angeles • File v. Hickey • Fischer v. Murphy • Fisk v. Inslee • Fizer v. Ohio Association of Public School Employees • Fleck v. Wetch • Grega v. Council of New Jersey State College Locals • Grossman v. Hawaii Government Employees Association • Gruber v. Oregon State Bar • Guppy v. City of Los Angeles • Halloran v. AFSCME Council 5 • Hamidi v. SEIU • Hannay v. Kent State • Hartnett v. Penn. State Education Association • Hendrickson v. AFSCME Council 18 • Hernandez v. AFSCME California • Hoekman v. Education Minnesota • Hough v. SEIU Local 521 • Imhoff v. California Teachers Association • Jackson v. Napolitano • James v. SEIU Local 688 • Janus v. AFSCME • Jarchow v. Wisconsin • Kabler v. United Food and Commercial Workers Union, Local 1776 Keystone State • Wenzig v. SEIU Local 668 • Kopie v. International Federation of Professional and Technical Employees • Kurk v. Los Rios Classified Employees Association • Lamberty et al. v. Connecticut State Police Union et al. • LaSpina v. SEIU Pennsylvania State Council • Lee v. Ohio Education Association • Leitch v. AFSCME • Littler v. Ohio Association of Public School Employees • Loescher v. Teamsters Local 320 • Lutter v. JNESO • Mandel v. SEIU Local 73 • Marsh v. AFSCME Local 3299 • Martin v. California Teachers Association • Masuo v. AFSCME AFL-CIO • Matthews v. United Teachers of Los Angeles • Mattos v. AFSCME Council 3 • Mayer v. Wallingford-Swathmore School District • McCain v. Ventura County Federation of College Teachers, AFT Local 1828 • McCollum v. NEA-Alaska • McCutcheon v. CWA Local 7076 • McDonald v. Firth • Mendez v. CTA • Miller v. Inslee • Misja v. PSEA • Molina v. SEIU Local 668 • Mooney v. Illinois Education Association • Nearman v. SEIU Local 503 • Neely v. AFSCME Council 13 • Nguyen v. Admin. and Residual Employees Union • Nichols v. Home Care Providers Union • O'Callaghan v. Drake • Ochoa v. Public Consulting Group • Ocol v. Chicago Teachers Union • Ogle v. Ohio Civil Service Employees Association, AFSCME, Local 11 • Oliver v. SEIU Local 668 • Pellegrino v. New York State United Teachers • Penning v. SEIU Local 1021 • Polk v. Yee • Popp v. ALPAI • Piekarski v. AFSCME Council 5 • Quirarte v. UDW AFSCME Local 3930 • Reisman v. Associated Faculties of the University of Maine • Rizzo-Rupon v. International Association of Machinists and Aerospace Workers, District Lodge 141 • Routh v. Inslee • Schaszberger v. AFSCME Council 13 • Schell v. Oklahoma Supreme Court Justices • Schumaker v. Inslee • Seager v. UTLA • Seidemann v. Professional Staff Congress • Smith v. AFSCME Council No. 8 • Smith v. New Jersey Education Association • Smith v. Bieker • Solomon v. AFSCME District Council 37 • Stroeder v. Service Employees International Union, Local 503 • Sweeney v. Raoul • Sweet v. California Association of Psychiatric Technicians • Taylor v. Heath • Thompson v. AFSCME Council 89, Local 4013 • Thompson v. Marietta Education Association • Thulen v. AFSCME • Uradnik v. Inter Faculty Org. • Utke v. University of Connecticut American Association of University Professors • Weyandt v. PSCOA • Wholean v. CSEA SEIU Local 2001 • Wilford v. National Education Association • Williams v. PSEA • Wolf v. University Professional & Technical Employees • Yates v. Hillsboro Unified School District • Yohn v. California Teachers Association

    See also

    External links

    Case documents

    Supreme Court

    Appeals court

    Trial court

    Footnotes

    1. ↑ 1.0 1.1 Supreme Court of the United States, "No. 21-779," accessed April 5, 2022
    2. ↑ 2.0 2.1 2.2 2.3 PacerMonitor, "Schell v. Williams,” accessed August 12, 2020
    3. ↑ 3.0 3.1 3.2 PacerMonitor, "Schell v. Williams, et al” accessed August 12, 2020
    4. ↑ 4.0 4.1 4.2 Court Listener, "Complaint,” March 26, 2019
    5. ↑ 5.0 5.1 5.2 Court Listener, "Order,” September 18, 2019
    6. ↑ 6.0 6.1 6.2 U.S. Court of Appeals for the Tenth Circuit, "No. 20-6044: Appeal from the United States District Court for the Western District of Oklahoma," June 29, 2021
    7. ↑ 7.0 7.1 7.2 U.S. Court of Appeals for the Tenth Circuit, "No. 20-6044: Order," August 25, 2021
    8. ↑ 8.0 8.1 8.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    9. ↑ 9.0 9.1 9.2 Supreme Court of the United States, Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al., June 27, 2018
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