10th Circuit: Utah State Bar Mandatory Membership Upheld in First Amendment Challenge

• The 10th Circuit Court of Appeals affirmed the dismissal of attorney Amy Pomeroy's civil rights challenge against the Utah State Bar's mandatory membership.
• Pomeroy argued that mandatory membership and the use of her dues for stances she opposed violated her First and 14th Amendment rights.
• The court upheld the constitutionality of mandatory bar membership, citing the 1961 Supreme Court case *Lathrop v. Donohue*.
• Pomeroy's appeal failed primarily because she did not adequately brief her arguments or follow procedural requirements.
• The ruling confirms that while mandatory dues can fund regulatory activities, members can object to and seek refunds for 'nongermane' political or ideological expenditures through established bar procedures.

The court's decision reinforces the constitutionality of mandatory state bar membership within its jurisdiction.

The 10th Circuit Court of Appeals recently affirmed the dismissal of a civil rights challenge brought by attorney Amy Pomeroy against the Utah State Bar. Pomeroy had initiated a lawsuit in 2021, contending that the mandatory membership requirement for practicing law in Utah, coupled with the bar's use of her dues to support positions she opposed, violated her First and 14th Amendment rights. The court's decision reinforces the constitutionality of mandatory state bar membership within its jurisdiction.

The Utah State Bar, which requires membership for all attorneys practicing in the Beehive State, collects dues from approximately 12,000 lawyers and judges. Pomeroy's 30-page complaint, filed in federal court in Utah, specifically cited instances where the bar took stances on issues such as opposing a proposed legal services tax and designating courtrooms as a "safe space," arguing these actions were rooted in ideologies she disagreed with. The lower court had previously granted summary judgment to the Utah State Bar, referencing the 10th Circuit's 2021 ruling in *Schell v. Chief Justice of Oklahoma*, prompting Pomeroy's appeal.

In its review of Pomeroy's appeal, the 10th Circuit delved into the historical context of challenges to integrated bars, tracing back to the 1961 U.S. Supreme Court decision in *Lathrop v. Donohue*, which upheld the legality of compulsory enrollment systems. The appellate panel, led by U.S. Circuit Judge Joel Carson, applied a "germaneness" test, stipulating that mandatory dues can be utilized to advance the state's interests in regulating the legal profession and enhancing the quality of legal services. However, it clarified that a state bar cannot fund political or ideological activities with a dissenting individual's dues unless those activities are reasonably related to these core interests.

Despite Pomeroy identifying seven specific issues where her views diverged from the bar's, the court ultimately found that she had not adequately briefed her arguments, either in her initial complaint or on appeal. Judge Carson's 26-page opinion highlighted Pomeroy's failure to sufficiently develop her argument, cite the appropriate standard of review, address the District Court's rationale for dismissal, or differentiate her claim from the one dismissed in *Schell*. This procedural deficiency led the court to conclude that Pomeroy had waived her argument. The panel, which included Senior U.S. Circuit Judge David Ebel and U.S. Circuit Judge Richard Federico, also noted that the Utah State Bar provides clear mechanisms for members to object to and seek refunds for dues allocated to "nongermane" activities.

This ruling by the 10th Circuit reaffirms the constitutional standing of mandatory membership in the Utah State Bar, aligning with established precedent. It underscores that while attorneys are generally required to join and pay dues to practice in the state, they retain the right to challenge and seek refunds for portions of their dues used for political or ideological activities deemed "nongermane" to the bar's core regulatory functions.

However, the decision also serves as a critical reminder that attorneys must meticulously follow established bar procedures and adequately brief their objections to such expenditures. Judge Carson's opinion explicitly stated that Pomeroy could have identified and challenged a "plethora of allegedly nongermane activity" and sought a refund through the Utah State Bar's existing procedures. A spokesperson for the Utah State Bar expressed satisfaction with the decision, which upholds the constitutionality of its structure.

This ruling reinforces the constitutionality of mandatory state bar membership in the 10th Circuit, but reminds lawyers of their right to object to and seek refunds for dues used for 'nongermane' political or ideological activities, provided they follow established bar procedures for such objections.

Source: Original reporting via Courthouse News