(1) Okla. Corr. Professionals Ass'n, Inc. v. Doerflinger, Case No. CIV-10-1369-R

(1) OKLAHOMA CORRECTIONS PROFESSIONALS ASSOCIATION, INC., a not for profit corporation;(2) DAVID RAMSEY, individually; (3) GLEN COLEMAN, individually;(4) BOB ZAPFFE, individually; and (5) TRAVIS ARY, individually, Plaintiffs, v. PRESTON DOERFLINGER, Administrator and Cabinet Secretary for the Office of State Finance,in his official capacity, Defendant.

Case No. CIV-10-1369-R

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

November 3, 2014

ORDER

Before the Court are the parties' cross motions for summary judgment [Doc. Nos. 105-06], as well as Defendant's motion to strike [Doc. No. 109] and Plaintiffs' motion to supplement [Doc. No. 119]. Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a).

Background

Oklahoma permits state employees to use voluntary payroll deductions ("VPDs") to pay membership dues to "the Oklahoma Public Employees Association ["OPEA"] ... or any other statewide association limited to state employee membership with a minimum membership of two thousand (2,000) dues-paying members." OKLA. STAT. ANN. tit. 62,§ 34.70(B)(5) (West).¹ The numerosity requirement was increased from 1,000 to 2,000 in a 2008 amendment to § 34.7, Doc. No. 107, at 25; Doc No. 111, at 6 (Undisputed Fact 3), but there is an exemption from this requirement for any statewide association approved for VPD prior to January 1, 2008, id. § 34.70(D). The Office of Management and Enterprise Services, the agency responsible for VPDs, Doc. No. 107, at 32; Doc. No. 111, at 9-10 (Undisputed Fact 27), interprets § 34.70 to exempt OPEA from the numerosity and exclusivity requirements, Doc. No. 107, Attach. 03, at 141-42.

The Oklahoma Corrections Professionals Association ("OCP") is an organization devoted to educating and advocating for employees of the Oklahoma Department of Corrections and the Pardon and Parole Board. Doc. No. 107, at 28; Doc. No. 111, at 6, 8 (Undisputed Fact 12). OCP was formed in May 2008. Id. OCP and OPEA are competing employee organizations. Doc. No. 107, at 37; Doc. No. 111, at 6, 13 (Undisputed Fact 42). The State initially approved OCP for VPD, but it later received a complaint from OPEA stating that OCP no longer had 2,000 members. Doc. No. 107, at 37; Doc. No. 111, at 6, 13 (Undisputed Fact 43). After investigating OCP's membership, the State concluded that OCP was no longer eligible for VPD because of its failure to maintain 2,000 members and notified OCP of its intent to terminate its VPD status in December 2010. Doc. No. 107, Attach. 04-17. OCP then brought a 42 U.S.C. § 1983 action to challenge the numerosity and exclusivity requirements to § 34.70.

Numerosity Requirement

A. Viewpoint Discrimination

1. Facial Violation

Plaintiffs argue that § 34.70 constitutes viewpoint discrimination on its face in violation of the First Amendment because OPEA and other associations approved for VPD prior to 2008 continue to qualify regardless of how many members they have, whereas OCP must maintain 2,000 members to qualify. "At the core of the First Amendment is the idea that 'government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" Pahls v. Thomas, 718 F.3d 1210, 1229 (10th Cir. 2013) (quoting Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). Viewpoint discrimination is a subset of content-based discrimination. Id. Content-based discrimination is discrimination "based upon either the content or the subject matter of the speech." Id. (citation omitted) (quoting Consol. Edison Co. of New York, Inc. v. Pub. Serv. Comm'n of New York, 447 U.S. 530, 536 (1980)). Viewpoint discrimination occurs "when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction." Id. (quoting Rosenberger v. Rectors & Visitors of Univ. of Virginia, 515 U.S. 819, 829 (1975)). A viewpoint-based speech restriction is presumptively invalid. Id. But if the State of Oklahoma has not engaged in viewpoint discrimination, it must demonstrate only a rational basis to justify the numerosity requirement. Oklahoma Corr. Prof'l Ass'n Inc. v. Doerflinger, 521 F. App'x 674, 678 (10th Cir. 2013) (citing Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353,359 (2009)). The first question, then, is whether the State has engaged in viewpoint discrimination.

a. Speaker v. Viewpoint

The Tenth Circuit directed this Court to consider, when analyzing this issue, the distinction between speaker-based discrimination and viewpoint-based discrimination. Id. at 678-79. This is because "speaker-based distinctions are permissible when the state subsidizes speech," id. (quoting Wisconsin Educ. Ass'n Council v. Walker, 705 F.3d 640, 646 (7th Cir. 2013)), and a VPD program is a subsidy that the State has no obligation to provide, id. (citing Ysursa, 555 U.S. at 353). In considering Plaintiffs' facial challenge, the Court must determine whether the 2008 amendment to § 34.70, which increased the numerosity requirement from 1,000 to 2,000 and exempted organizations approved for VPD prior to 2008, was enacted with a viewpoint-discriminatory purpose. Pahls, 718 F.3d at 1230. This is a demanding standard that requires proving that the amendment was passed "because of, not merely in spite of, the action's adverse effects upon" OCP. Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009)). Combining the speaker-viewpoint distinction with this standard requires Plaintiffs to prove that the Oklahoma legislature amended § 34.70 with the purpose not just of preventing OCP from qualifying for VPD, but preventing OCP from qualifying for VPD because of its viewpoint.

In support of this argument, Plaintiffs point to the statute, which names OPEA and exempts it from the numerosity requirement because it was approved for VPD prior to 2008. They also point to an affidavit of Oklahoma State Representative Gus Blackwell, in which Blackwell states that OPEA lobbied for the increase in the numerosity requirementto "ensure that OCP would not be formed." Doc. No. 107, Attach. 07-00, at 2, 4. But Plaintiffs have not produced any evidence linking the numerosity requirement to any viewpoint discrimination against OCP. Although the evidence produced supports the claim that the amendment was passed to prevent OCP from qualifying for VPD, thus reducing competition with OPEA for membership dues, this constitutes merely speaker-based discrimination and not viewpoint-based discrimination. "A government subsidy 'that discriminates among speakers does not implicate the First Amendment unless it discriminates on the basis of ideas.'" Doerflinger, 521 F. App'x at 678 (quoting Walker, 705 F.3d at 646-47). The Court is mindful of the Tenth Circuit's observation that "the speaker/viewpoint distinction may as a practical matter be illusory. 'Speech restrictions based on the identity of the speaker are all too often simply a means to control content.'" Id. at 679 (citation omitted) (quoting Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 340 (2010)). But Plaintiffs have not produced any evidence that the legislature had OCP's viewpoint or ideas in mind when increasing the numerosity requirement from 1,000 to 2,000 members or exempting those organizations already approved for VPD.

Plaintiffs argue that the Court should impute the viewpoint discriminatory purpose of OPEA to the State because OPEA is a state actor. But the two cases they cite in support of this proposition, Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288, 294 (2001) and Christian Heritage Academy v. Oklahoma Secondary School Activities Ass'n, 483 F.3d 1025, 1030 (10th Cir. 2007), involved whether the defendants were state actors such that they could be held liable under § 1983. In this case, Plaintiffs are not suing OPEA, and have not cited any authority that wouldpermit the Court to impute the discriminatory purpose of a third party onto a defendant for purposes of § 1983 liability. Indeed, for a defendant to be liable under § 1983, the violation must be "traceable to [the] defendant-official's 'own individual actions.'" Pahls, 718 F.3d at 1225. Accordingly, the Court may not impute OPEA's purpose, even a viewpoint discriminatory purpose, onto Defendant.

b. Rational Basis

Because Plaintiffs have not demonstrated that the State engaged in viewpoint discrimination when it amended § 34.70, the State must demonstrate only a rational basis for the numerosity requirement. Doerflinger, 521 F. App'x at 680. Plaintiffs first argue that "this Court cannot adopt a 'rational basis' inconsistent with the purpose stated by the Oklahoma Supreme Court" in Oklahoma Corrections Professional Ass'n v. Jackson, 280 P.3d 959 (Okla. 2012). Doc. No. 112, at 32-33. In Jackson, the Court held that if this Court finds the numerosity requirement unconstitutional, that provision is severable from the rest of § 34.70. Id. at 962. Contrary to Plaintiffs' contention, however, the rational basis inquiry is not limited to the Oklahoma Supreme Court's conclusion on the severability of the numerosity requirement, or even on that Court's view of the purpose of that requirement. In arguing that there is no rational basis underlying this provision, Plaintiffs have the "heavy burden" of negating "any reasonably conceivable state of facts that could provide a rational basis for the [selective] classification." Doerflinger, 521 F. App'x at 680 (citation omitted). The legislature's actual motivation is irrelevant to this analysis. Powers v. Harris, 379 F.3d 1208, 1217 (10th Cir. 2004). The Court is not even bound by the parties' arguments in this regard. Id.

The Court finds that decreasing the burden on the agency administering VPD is a legitimate government interest, and that the numerosity requirement is rationally related to that interest. In response to Defendant raising this...