Attorney strikes out in challenge of Utah State Bar lobbying

An attorney sued the Utah State Bar in 2021, challenging the requirement that attorneys join the organization to practice in the state and asking her money not be spent to support stances on issues she opposed.DENVER (CN) — The 10th Circuit affirmed on Monday the dismissal of a Utah attorney’s civil rights challenge to the state bar, which she claimed violated her First and 14th Amendment rights by mandating membership and then taking positions on issues she disagreed with.“As this case demonstrates, plaintiff has been able to identify and challenge a plethora of allegedly nongermane activity,” U.S. Circuit Judge Joel Carson wrote in a 26-page opinion. “She could do the same following Utah State Bar’s procedures and seek a refund if she desired. We conclude that USB provides an adequate basis for members to identify and object to its allegedly nongermane, nonlegislative activities."The Utah State Bar mandates membership to practice law in the Beehive State and collects dues from roughly 12,000 lawyers and judges.In recent years, the bar took several stances on issues ranging from opposing a proposed legal services tax to declaring courtrooms a “safe space.” According to attorney Amy Pomeroy in the 30-page complaint filed in federal court in Utah in 2021, such stances were grounded in an ideology she opposed and thus violated her First Amendment rights.Citing the 10th Circuit’s 2021 decision in Schell v. Chief Justice of Oklahoma, the lower court granted the Utah State Bar summary judgment. Pomeroy appealed.In reviewing Pomeroy’s appeal, the 10th Circuit revisited the history of attorney-led challenges to integrated bars dating back to Lathrop v. Donohue in 1961, in which the U.S. Supreme Court declared such compulsory enrollment systems above board.How the Utah State Bar spends mandatory dues collected from dissenters like Pomeroy raises a bigger question, one the panel sought to review under a test of germaneness.Collected dues may be spent to advance “the state’s interests regulating the legal profession and improving the quality of legal services,” Carson wrote. “But a state bar may not use a dissenting individual’s dues to fund political or ideological activities unless they are reasonably related to the advancement of these interests.”Although Pomeroy listed seven issues on which her stance differed from the bar, the Donald Trump appointee found she didn’t adequately brief the issue in her complaint or on appeal.“Plaintiff has not adequately developed this argument in her opening brief. Plaintiff does not dedicate a section or subsection of her brief to addressing the District Court’s dismissal,” Carson wrote. “She also fails to cite the standard of review we apply to motions to dismiss, does not address the District Court’s reasoning for dismissing this claim, and does not attempt to distinguish her claim from the one dismissed in Schell. By failing to adequately brief this issue on appeal, plaintiff has waived it.”Nevertheless, the panel found the bar association did provide Pomeroy a means to opt out of paying dues that would be spent on nongermane activities and that members are also entitled to rebates for unspent dues.Ronald Reagan-appointed Senior U.S. Circuit Judge David Ebel and Joe Biden-appointed U.S. Circuit Judge Richard Federico joined Carson on the opinion.Attorney Dick Baldwin of the Salt Lake City firm Parr Brown represented the bar association. A spokesperson from the bar association told Courthouse News they were pleased by the decision.“We are pleased that the 10th U.S. Circuit Court of Appeals affirmed the district court’s decision, upholding the constitutionality of the Utah State Bar’s structure and procedures,” the spokesperson said over email. “We remain committed to our charge to impose mandatory fees responsibly and ensure those fees are used to regulate the legal profession and improve legal services.”Attorney Scott Freeman of the Goldwater Institute represented Pomeroy on appeal.“Although our client respects the court’s opinion, she disagrees with it,” Freeman told Courthouse News over email. “Utah lawyers should not be forced to join a bar that publishes political and ideological material and lobbies the legislature — activities that go beyond the narrow regulatory purpose of a mandatory bar association. Compelling Ms. Pomeroy to associate with that speech violates her First Amendment rights.”Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads