Pomeroy v. Utah State Bar

1

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

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

United States District Court, D. Utah

August 29, 2022

Jared C. Bennett, Magistrate Judge.

ORDER AND MEMORANDUM DECISION DENYING MOTION FOR CERTIFICATE OF APPEALABILITY

TENA CAMPBELL, United States District Judge.

After the court dismissed some of the claims in Plaintiff Amy Pomeroy's Complaint, ECF No. 2, the remaining Defendants^[1] moved to certify the court's memorandum decision and order for interlocutory appeal, ECF No. 105. For the following reasons, the court DENIES the Defendants' motion.

BACKGROUND

In its Order and Memorandum Decision Granting in Part and Denying in Part Defendants' Motion to Dismiss (the Order), ECF No 94, the court found Ms. Pomeroy had adequately pleaded two causes of action against the Utah State Bar President President-Elect, and Commissioners (Defendants) in their official capacities: violation of the First and Fourteenth Amendments arising from (1) compelled membership in the Utah State Bar and (2) failure to provide procedural safeguards to ensure mandatory dues are not used for impermissible purposes.^[2]

The court explained that under Keller v. State Bar of California, conditioning the right to practice law on membership in a state bar association does not violate the First Amendment rights of free speech or association where the state bar uses mandatory bar dues to fund “germane” activities: that is, those activities pertaining to “regulating the legal profession” or “improving the quality of the legal service available to the people of the State.” ECF No. 94 at 10 (citing Keller v. State Bar of California, 496 U.S 1, 14 (1990)). The court accordingly evaluated whether Ms. Pomeroy had alleged the Defendants had conditioned the practice of law on membership in an organization that conducted non-germane activities using mandatory dues. In applying this standard, the court also relied on Schell v. Chief Justice and Justices of Oklahoma Supreme Court, a recent Tenth Circuit case which held that a district court had erred in dismissing a freedom of association claim brought by an attorney who alleged that the Oklahoma Bar Association used mandatory member dues to “publish political and ideological speech in its Oklahoma Bar Journal publication.” 11 F.4th 1178, 1183, 1194 (10th Cir. 2021). In Schell the Tenth Circuit explained that based on the attorney's allegations, and without the articles in the record, the attorney had plausibly alleged “the articles strayed from the germane purposes of the [Oklahoma Bar Association] and discussed matters in an ideological manner.” Id. at 1194.

The court noted Ms. Pomeroy had alleged two categories of potentially non-germane activities: lobbying activities and articles published in the Utah Bar Journal. ECF No. 94 at 10- 11. Viewing the allegations in the light most favorable to Ms. Pomeroy, the court concluded that she had plausibly alleged both categories of activity were not germane to the Utah State Bar's purpose. Accordingly, Ms. Pomeroy had adequately alleged a freedom of association claim based on those two theories. The court also found that Ms. Pomeroy had adequately pleaded that the Defendants failed to provide adequate procedural safeguards to refund those allegedly nongermane activities.

In making this determination, the court recognized that the Defendants' Motion to Dismiss relied on a recent Fifth Circuit decision, McDonald v. Longley. ECF No. 94 at 13 n.9 (citing McDonald v. Longley, 4 F.4th 229 (5th Cir. 2021)). The court noted that McDonald arose in a different procedural posture (summary judgment) and did not feature an in-depth discussion of the potential germaneness of bar journal articles as Schell had. Consequently, the court went on to explain, it found the case less persuasive for purposes of adjudicating the motion to dismiss.^[3]

Defendants now seek a certificate of immediate appealability. They argue that the court's Order “mistakenly interpreted Tenth Circuit precedent contrary to longstanding First Amendment principles concerning speech in a forum,” and that the court “rejected the Fifth Circuit's formulation of the germaneness test” in finding that Ms. Pomeroy has sufficiently alleged certain activities were not germane. ECF No. 105 at 3.

LEGAL STANDARDS

Most district court orders are interlocutory and as a result not immediately appealable. But a court can certify an order as appealable when the order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Even if the order was initially silent about appealability, the court can later certify its order by amending it. Fed. R. App. P. 5(a). The court of appeals ultimately decides whether to permit the appeal. Id.

First, a controlling question of law is “a question of the meaning of a statutory or constitutional provision, regulation, or common law doctrine.” Ahrenholz v. Bd. of Trustees of Univ. of Ill., 219 F.3d 674, 676 (7th Cir. 2000). Such a question is “controlling” if “reversal of the district court's order would terminate the action.” Century Pac., Inc. v. Hilton Hotels Corp., 574 F.Supp.2d 369, 372 (S.D.N.Y. 2008) (citing Klinghoffer v. S. N.C. Achille Lauro, 921 F.2d 21, 24 (2d Cir. 1990)). Second, substantial ground for difference of opinion exists

if a trial court rules in a manner which appears contrary to the rulings of all courts of appeals which have reached the issue, if the circuits are in dispute on the question and the court of appeals of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel and difficult questions of first impression are presented.

XTO Energy, Inc. v. ATD, LLC, 189 F.Supp.3d 1174, 1194 (D.N.M. 2016) (citing 2 Fed. Proc., L.Ed. § 3:218 (footnotes omitted)). Additionally, the “contention that one precedent rather than another should apply does not merit interlocutory appeal.” Id. (citations omitted). Third, for an immediate appeal to materially advance the ultimate termination of the litigation, it must “(1) eliminate the need for trial, (2) eliminate complex issues so as to simply the trial, or (3) eliminate issues to make discovery easier and less costly.” Id. at 1195 (quoting Coates v. Brazoria Cnty., 919 F.Supp.2d 863, 867 (S.D. Tex. 2013)).

Even if all three § 1292(b) elements are met, the court still has discretion to deny certification. In re Roman Cath. Diocese of Albany, N.Y., Inc., 745 F.3d 30, 36 (2d Cir. 2014). Indeed, § 1292(b) “is meant to be used sparingly and interlocutory appeals under this section are rare.” United States v. Corps. for Character, L.C., No. 2:11-CV-419-RJS, 2015 WL 12780592, at *1 (D. Utah July 1, 2015) (citation omitted); see also State of Utah by and Through Utah Dep't of Health v. Kennecott Corp., 14 F.3d 1489, 1495 (10th Cir. 1994) (citing Note, Interlocutory Appeals in the Federal Courts Under 28 U.S.C. § 1292(b), 88 HARV. L. REV. 607, 609-11 (1975) (observing avoidance of wasted trial court time is “sole policy” of § 1292(b))).

ANALYSIS

Defendants argue all three requirements for the certification of interlocutory review are satisfied: they argue that the Order involves two controlling questions of law, that there is a substantial ground for difference of opinion on each question, and that an immediate appeal from the Order would materially advance the termination of the litigation. They begin by arguing that the Order involves two controlling legal questions: “(1) whether statements published in the Utah Bar Journal are attributable to the Utah State Bar and (2) whether Pomeroy has alleged any nongermane conduct under the test for germaneness.” ECF No. 105 at 5.

As to the second question, the court agrees with Defendants. Whether Ms. Pomeroy has alleged any non-germane conduct under the test for germaneness is a controlling question of law. If Ms. Pomeroy failed to allege any non-germane activities on the part of the Defendants, the remainder of the Complaint would have been dismissed and the litigation terminated. But the court disagrees with Defendants on the first question. Whether statements published in the Utah Bar Journal are attributable to the Utah State Bar is not a controlling question of law at this stage. Ms. Pomeroy's Complaint contains two theories of non-germaneness: that statements made in the Utah Bar Journal were allegedly non-germane and that the Defendants participated in allegedly non-germane lobbying activities. ECF No. 2. The court's Order found both theories were adequately pleaded. Accordingly, a determination from the Tenth Circuit that statements published in the Utah Bar Journal are not attributable to the bar association would not terminate the action, because the lobbying activities theory would remain.^[4] Accordingly, the court only considers Defendants' Motion to the extent it is based on the germaneness issue.

As to the second element, Defendants have failed to show that the question of whether Ms. Pomeroy has adequately alleged non-germane activities presents a substantial ground for difference of opinion. Defendants argue this court “disregarded the Fifth Circuit's application of the Keller germaneness standard to bar journals and lobbying” and that in doing so, it “suggested there is conflict between the Fifth and Tenth Circuits as to the proper reach of the germaneness test.” ECF No. 105 at 11. Defendants also argue that because Schell was initially issued before McDonald was decided, “there is no Tenth Circuit decision specifically addressing the issues raised in this motion.” Id. at 11-12.

The court disagrees...