Pomeroy v. Utah State Bar

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AMY POMEROY, Plaintiff, v. UTAH STATE BAR, et al., Defendants.

No. 2:21-cv-00219-TC-JCB

United States District Court, D. Utah, Central Division

April 25, 2024

Jared C. Bennett, Magistrate Judge.

ORDER AND MEMORANDUM DECISION ON MOTIONS FOR SUMMARY JUDGMENT

TENA CAMPBELL, United States District Judge

Plaintiff Amy Pomeroy sued Defendant Utah State Bar (Utah Bar) and officers and members of the Utah Bar under 42 U.S.C. § 1983 and 42 U.S.C. § 1988. Ms. Pomeroy contends that the Utah Bar has violated her First and Fourteenth Amendment rights to free speech and association by compelling her membership in the Utah Bar and engaging in activities that are not germane, that is, relevant or connected to regulating the legal profession or improving the quality of legal services available in Utah. She also argues that the Utah Bar has violated her free speech rights for failing to provide safeguards to ensure members' mandatory dues are not used for impermissible purposes.

Both parties have moved for summary judgment. (Pomeroy Mot. Summ J., ECF No. 127; Utah Bar Mot. Summ. J., ECF No. 128). For the reasons stated below, the court denies Ms. Pomeroy's motion for summary judgment and grants the Utah Bar's motion.

BACKGROUND

The Utah Bar is an integrated bar, meaning that attorneys must join and pay compulsory dues to the Utah Bar if they want to practice law in Utah. See Utah Sup. Ct. R Prof'l. Prac. 14-102(d)(1) (“A person may only practice law in Utah if that person is a licensed lawyer and an active [Utah] Bar member in good standing[.]”). The Utah Supreme Court has authorized the Utah Bar to “administer rules and regulations that govern the practice of law in Utah” and “assist the Court in governing admission to the practice of law.” Rule 14-102(a)(1), (2). Purposes and responsibilities of the Utah Bar include: “advancing the administration of justice[,]” “fostering and maintaining integrity, learning competence, public service, and high standards of conduct among those practicing law[,]” “providing a service to the public, to the judicial system, and [Utah] Bar members[,]” and “assisting [Utah] Bar members in improving the quality and efficiency of their practice[.]” Rule 14-102(b)(1), (4), (8), (10).

The Utah Bar also has authority to engage in legislative activities. It may “study and provide assistance on public policy issues and .. adopt positions on behalf of the [Utah Bar] Board on public policy issues.” Rule 14-106(a). The Board of Commissioners to the Utah Bar is “authorized to review and analyze pending legislation, to provide technical assistance to the Utah Legislature . and to adopt a position in support of or in opposition to a policy initiative, to adopt no position on a policy initiative, or to remain silent on a policy initiative.” Id.

Among its various activities, the Utah Bar uses member dues to publish the Utah Bar Journal six times each year and operate social media accounts. The Utah Bar's mission and vision is that “[t]he lawyers of the Utah . Bar serve the public and legal profession with excellence, civility, and integrity. [The Utah Bar] envision[s] a just legal system that is understood, valued, and accessible to all.” Mission & History of the Bar, Utah State Bar, https://www.utahbar.org/about/.

The Utah Bar has established procedures through which members who object to the expenditure of their fees on activities-legislative or otherwise-can apply for a rebate and, possibly, receive a refund. Utah State Bar Keller Refund Request Policieis [sic] and Procedures, https://www.utahbar.org/wp-content/uploads/Keller-Refund-and-Objection-Procedures.pdf. Utah Bar members who object to expenditures on legislative activities must apply for a rebate in writing to the Executive Director after the Utah Bar Journal publishes its annual notice of rebate. Id. “Any member of the Bar who objects to the expenditure of funds by the Board may apply for a license fee rebate in an amount representing that member's pro rata portion of the amount of the lawyer's licensing fees spent on legislative activities .. for the preceding 12-month period.” Id. Members objecting to “the use of any portion of the licensee's license fees for activities he or she considers promotes or opposes political or ideological causes which are not already included in the rebate may request the Board to review the licensee's objections.” Id. Within 45 days of the publication of the notice of rebate, members must object in writing and submit their objections by mail to the Executive Director. Id. The Board will then review each written objection, respond to each, and, if the Board agrees with the objection, “immediately refund the portion of the licensee's dues that are attributable to the activity, with interest paid on that sum of money from the date the licensee's fees were received to the date of the refund.” Id. “The Board's response[s] [to each objection] will include an explanation of the Board's reasoning in agreeing or disagreeing with each objection.” Id.

Ms. Pomeroy, as a Utah lawyer, “is compelled to [be] a member of the [Utah Bar] and to pay an annual fee to the [Utah Bar] as a condition of engaging in [the legal] profession.” (Compl., ECF No. 2 at ¶ 33.) She challenges those requirements because the Utah Bar has used her dues to engage in what she alleges are objectionable non-germane activities, including lobbying, publishing the Utah Bar Journal, and making statements on Utah Bar social media accounts. She also argues that “[b]ecause the U[tah Bar] refuses to implement adequate procedures to allow [her] to avoid funding objectionable non-germane activities with her membership dues, [the Utah Bar] has violated its obligation to implement procedural safeguards as [required and laid out by] the Supreme Court[.]” (ECF No. 127 at 2.^[1])

LEGAL STANDARD

A court “shall grant summary judgment 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). Material facts are those that might affect the outcome of the case. See Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”).

Once the movant shows there is an absence of a genuine dispute of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citation omitted), the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. “[W]hile [courts] draw all reasonable inferences in favor of the non-moving party, ‘an inference is unreasonable if it requires a degree of speculation and conjecture that renders [the factfinder's] findings a guess or mere possibility.'” GeoMetWatch Corp. v. Behunin, 38 F.4th 1183, 1200 (10th Cir. 2022) (quoting Pioneer Ctrs. Holding Co. Emp. Stock Ownership Plan & Tr. v. Alerus Fin., N.A., 858 F.3d 1324, 1334 (10th Cir. 2017)).

“The standard for cross-motions for summary judgments is the same as for individual motions for summary judgment.” Cannon v. State Farm Mut. Auto. Ins. Co., No. 2:13-cv-186, 2013 WL 5563303, at *1 (D. Utah Oct. 7, 2013) (citation omitted). “[The court] must view each motion separately, in the light most favorable to the non-moving party, and draw all reasonable inferences in that party's favor.” Boyz Sanitation Serv., Inc. v. City of Rawlins, 889 F.3d 1189, 1195 (10th Cir. 2018).

ANALYSIS

I. Scope of Challenged Utah Bar Activities.

Before reaching the merits of Ms. Pomeroy's claims, the court must first determine what material it should examine to decide the parties' motions. This issue is of particular importance because Ms. Pomeroy challenged many Utah Bar activities in her motion for summary judgment that she did not reference in her complaint. (See Defs.' Opp'n to Pomeroy Mot. Summ. J., ECF No. 134 at 1; see also ECF No. 2 at ¶¶ 42-50.)

“[T]he liberal pleading standard for ... complaints under [Fed. R. Civ. P.] 8(a) ... [typically] does not afford plaintiffs with an opportunity to raise new claims at the summary judgment stage.” Navajo Nation Hum. Rights Comm'n v. San Juan Cnty., 281 F.Supp.3d 1136, 1149 (D. Utah 2017) (citation omitted). But “failure to set forth in the complaint a theory upon which the plaintiff could recover does not bar a plaintiff from pursuing a claim.” Rodriguez v. Cascade Collections LLC, 532 F.Supp.3d 1099, 1112-13 (D. Utah 2021) (quoting McBeth v. Himes, 598 F.3d 708, 716 (10th Cir. 2010)). A court may allow a plaintiff to “constructively amend the [complaint] by means of [a] summary-judgment motion,” by applying the same standard that governs motions to amend. Id. at 1113 (citation omitted). Federal Rule of Civil Procedure 15 directs that “[t]he court should freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2). “If the new theory prejudices the other party in maintaining its defense, however, courts will not permit the plaintiff to change her theory.” McBeth, 598 F.3d at 716. Courts finding “undue delay, bad faith, or dilatory motive” may also prevent the plaintiff from adding new claims. Rodriguez, 532 F.Supp.3d at 1113 (citing Ahmad v. Furlong, 435 F.3d 1196, 1202 (10th Cir. 2006)).

The court finds that the new allegations are unduly delayed. Ms Pomeroy filed her complaint on April 13, 2021. (See ECF No. 2.) She filed her summary judgment motion nearly two years later. (See ...