Pomeroy v. Utah State Bar
| Decision Date | 04 April 2022 |
| Docket Number | Case No. 2:21-CV-00219-TC-JCB |
| Citation | 598 F.Supp.3d 1250 |
| Parties | Amy POMEROY, Plaintiff, v. UTAH STATE BAR, et al., Defendants. |
| Court | U.S. District Court — District of Utah |
Jacob H. Huebert, Goldwater Institute, Phoenix, AZ, for Plaintiff.
Christine M. Durham, Dick J. Baldwin, Troy L. Booher, Zimmerman Booher LLC, Salt Lake City, UT, for Defendants.
ORDER AND MEMORANDUM DECISION GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
In this civil rights suit, Plaintiff Amy Pomeroy, a licensed attorney in Utah, alleges mandatory membership in the Utah State Bar (USB) and Utah Bar Foundation (UBF) violates her First and Fourteenth Amendment rights. Defendants filed a motion to dismiss Ms. Pomeroy's Complaint. (ECF No. 68.) For the following reasons, the court GRANTS IN PART and DENIES IN PART the motion to dismiss.
The USB is a Utah non-profit corporation which Utah attorneys must join and pay an annual fee in order to practice law in Utah. John C. Baldwin is Executive Director, Heather Farnsworth is President, and Heather Thuet is President-Elect. Marty Moore, John W. Bradley, Chrystal Mancuso-Smith, Michelle Quist, Mark Morris, Mark Pugsley, Traci Gunderson, Andrew Morse, Tom Seiler, Kristin Woods, Rick Hoffman, and Shawn Newell are members of the USB's Board of Commissioners (the Board).2 Baldwin and Farnsworth, along with the members of the Board, are responsible for enforcing the state's requirement that attorneys join the USB and pay annual fees to the USB to practice law in Utah. If an attorney fails to pay the annual fee, "the USB administratively suspends the attorney's license to practice law, which prohibits the attorney from practicing law in the state." (Compl. ¶ 32, ECF No. 2.)
Under the Utah Judicial Council Code of Judicial Administration (CJA) Rules, the USB is "authorize[d]" and "directe[d]" "to study and provide assistance on public policy issues and to adopt positions on behalf of the Board." (Compl. ¶ 38, ECF No. 2) (citing CJA Rule 14-106(a).)3 The USB has advocated for and against substantive Utah legislation, including taxation of legal services, whether the state attorney general can invoke a potential conflict of interest or attorney-client privilege to withhold release of an opinion requested by the legislature, and how Utah selects judges. Additionally, the USB uses member dues to fund the Utah Bar Journal , which "take[s] or publicize[s] positions on current controversies," including by touting the importance of "equity" as distinct from "equality," invoking the concept of implicit bias, calling for courtrooms to be a "safe space" for allegations of unfairness, and reviewing a book that proposes criminal penalties for anyone who protects an institution in which a sexual assault occurs. (Compl. ¶ 50, ECF No. 2.)
Within the Utah Bar Journal , the USB publishes notice of member-attorneys’ right to receive a rebate of the portion of their dues used for lobbying and legislative matters. Members may not prevent their dues from being used for lobbying purposes before the fact, and the USB does not provide information about how it determines which expenditures are classified as lobbying and legislative-related. The USB does not offer a means to object to or receive refunds for other, non-lobbying or legislative USB activities. Nor does the annual budget made available to members identify specific expenditures, only general categories.
Ms. Pomeroy, who lives in Orem, is an attorney duly licensed under the laws of Utah. She is a member of the USB and pays its annual fee solely because it is a mandatory prerequisite to practicing law in Utah. Ms. Pomeroy does not want to associate with the USB or USF and opposes the use of any of her mandatory fees to "fund any amount of political or ideological speech, regardless of its viewpoint." (Compl. ¶ 68, ECF No. 2.) She also objects to the lack of safeguards available to allow attorneys to opt out of paying for political and ideological speech.
On April 14, 2021, Pomeroy filed her Complaint against the USB, Baldwin, Farnsworth, Thuet, and the members of the Board. (ECF No. 2.) The Complaint brings four causes of action under 28 U.S.C. § 2201 and 42 U.S.C. § 1983, alleging the following practices violate her First and Fourteenth Amendment rights to free speech and free association: (1) compelled membership in the USB, (2) the USB's collection of mandatory bar dues, (3) failing to provide safeguards to ensure mandatory dues are not used for impermissible purposes, and (4) compelled membership in the UBF. Defendants now ask the court to dismiss each of Ms. Pomeroy's causes of action. (ECF No. 68.) The court turns to the party's arguments.
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff's complaint "must plead facts sufficient to state a claim to relief that is plausible on its face." Slater v. A.G. Edwards & Sons, Inc., 719 F.3d 1190, 1196 (10th Cir. 2013) (internal quotation marks omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). A claim is facially plausible when the complaint contains "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ). The court must accept all well-pleaded allegations in the complaint as true and construe them in the light most favorable to the plaintiff. Albers, 771 F.3d at 700. The court's function is "not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (quoting Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991) ).
Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction take two forms: facial attacks and factual attacks. Laufer v. Looper, 22 F.4th 871, 875 (10th Cir. 2022). A facial attack challenges the sufficiency of the complaint, while a factual attack presents additional evidence. Muscogee (Creek) Nation v. Okla. Tax. Comm'n, 611 F.3d 1222, 1227 n.1 (10th Cir. 2010). Defendants bring a facial attack. In evaluating a facial attack, the court "must accept the factual allegations in the complaint as true," Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) and "apply a standard patterned on Rule 12(b)(6)." Garling v. EPA, 849 F.3d 1289, 1293 n.3 (10th Cir. 2017).
Defendants argue the Complaint should be dismissed pursuant to Rule 12(b)(1) because the USB is immune from suit under the Eleventh Amendment and Ms. Pomeroy lacks Article III standing because her alleged injury is not redressable. Defendants further argue that even if Ms. Pomeroy establishes standing, she has failed to adequately allege her claims and the Complaint should be dismissed pursuant to Rule 12(b)(6). The court will address the Eleventh Amendment immunity, Article III standing, and Rule 12(b)(6) arguments in turn.
The Eleventh Amendment precludes unconsented suits in federal court against a state or an arm of the state. See, e.g., Wagoner Cnty. Rural Water Dist. No. 2. v. Grand River Dam Auth., 577 F.3d 1255, 1258 (10th Cir. 2009). An arm of the state is an entity created by a state government which operates as an alter ego or instrumentality of the state. See Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 574 (10th Cir. 1996). This court has previously held the USB is an arm of the state because it acts as an alter ego of the Utah Supreme Court. Rose v. Utah State, No. 2:09-cv-695-TC, 2009 WL 5066687, at *4 (D. Utah Dec. 16, 2009). In Rose, to determine the USB's arm of the state status, the court considered how state laws characterize the USB. Id. at *3 (citing Sturdevant v. Paulsen, 218 F.3d 1160, 1164 (10th Cir. 2000) ). The court held that because the Utah Constitution gives the Utah Supreme Court exclusive authority to govern the practice of law, and because the Utah Supreme Court promulgates the Rules under which the USB functions, the USB was an alter ego of the Utah Supreme Court and, therefore, an arm of the state. Id. at *3–*4 (citing Utah State Bar v. Summerhayes & Hayden, Pub. Adjusters, 905 P.2d 867, 870 (Utah 1995) ).
Ms. Pomeroy nonetheless argues that under Watson, the USB is not an arm of the state because it has relative autonomy from the state since the members elect commissioners, and because it is financed independently from the state treasury. (ECF No. 74 at 8.) Defendants respond that despite the fact commissioners are elected, the USB does not enjoy significant autonomy concerning the issues in the suit—mandatory membership and license fee rules—because the Utah Constitution has vested the Utah Supreme Court has "reserved substantial control over the membership and license fee rules challenged in this suit." (ECF No. 78 at 3.) As to the USB's independent funding, Defendants note entities can retain Eleventh Amendment immunity even if a judgment would have no impact on the state's finances. (ECF No. 78 at 3) (citing Regents of the Univ. of Calif. v. Doe, 519 U.S. 425, 431, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997).)
The court agrees with Defendants. The Tenth Circuit has explained that the central inquiry is whether an entity is more like an arm of the state or a political subdivision. See Sturdevant, 218 F.3d at 1164. The factors Ms. Pomeroy relies on, as enumerated in Watson, are simply an "elaborat[ion]" of that central inquiry, which originates from a Supreme Court decision. Id. (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) ).4 As the court previously observed in Rose, the Utah Constitution gives the Utah...
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