[00:00:02] Speaker 04:
The next case is 24-4054, Pomeroy versus Utah State Bar.

[00:00:11] Speaker 04:
Please proceed.

[00:00:15] Speaker 02:
Good afternoon, Your Honors.

[00:00:17] Speaker 02:
Scott Day Freeman on behalf of Appellant Miss Amy Pomeroy.

[00:00:21] Speaker 02:
May it please the Court?

[00:00:23] Speaker 02:
Excuse me.

[00:00:26] Speaker 02:
In its order denying Ms.

[00:00:27] Speaker 02:
Pomeroy's motion for summary judgment and granting the Bar's motion for summary judgment, the district court applied the wrong legal standard.

[00:00:36] Speaker 02:
As the court said in its order, quote, this court is not persuaded by Ms.

[00:00:40] Speaker 02:
Pomeroy's argument that the court should apply exacting scrutiny to the challenged Utah Bar activities, end quote.

[00:00:48] Speaker 02:
That's reversible error.

[00:00:50] Speaker 02:
What the court did is it interpreted Keller and the Abboud case, the case on which Keller stands, to effectively apply a rational basis standard for Ms.

[00:01:01] Speaker 02:
Pomeroy's freedom of association claim.

[00:01:04] Speaker 04:
I mean, that's what those two cases more or less say, isn't it?

[00:01:09] Speaker 02:
With respect to the compelled speech claim, which Keller addressed, it does provide a more liberal standard.

[00:01:21] Speaker 02:
But the district court applied it to the compelled association claim, which Ms.

[00:01:26] Speaker 02:
Pomeroy brings here.

[00:01:28] Speaker 02:
And that's part of our argument.

[00:01:32] Speaker 02:
That's the reversible error.

[00:01:33] Speaker 02:
Right.

[00:01:34] Speaker 04:
And then that brings us to our case, SHILL, I think is the name of it, which relied heavily on killer and seemed to not propose this exacting scrutiny standard that you're wanting to advance.

[00:01:53] Speaker 02:
Well, Shell was postured a little differently.

[00:01:56] Speaker 02:
Shell was at the motion to dismiss stage, the pleading stage.

[00:01:59] Speaker 02:
So what this court did in Shell is it affirmed the dismissal

[00:02:04] Speaker 02:
of the compelled speech claim because it viewed Keller as controlling there.

[00:02:10] Speaker 02:
But it reversed on the plaintiff's compelled association claim because Keller does not address the freedom of association claim.

[00:02:19] Speaker 02:
That is fertile ground.

[00:02:20] Speaker 02:
So it was four years.

[00:02:24] Speaker 04:
Or did it reverse it because there was a need to determine whether the activities were germane?

[00:02:33] Speaker 02:
Well, ultimately, that's what would happen.

[00:02:35] Speaker 02:
I think what this court did is made a preliminary assessment in terms of the pleading standard.

[00:02:40] Speaker 02:
Did the plaintiff in shell put enough in his complaint?

[00:02:44] Speaker 02:
to arguably invoke this freedom of association claim.

[00:02:49] Speaker 02:
And there it was that the plaintiff there had challenged some bar publications and attached a couple of them to that complaint.

[00:02:58] Speaker 02:
And this court reviewed those publications to determine, well, under the motion to dismiss standard, there's enough there to survive dismissal and remanded it to the district court for further proceedings.

[00:03:09] Speaker 04:
OK, let me ask you this, because the analysis on this whole issue, it just seems circular to me.

[00:03:18] Speaker 04:
But so we have a state bar.

[00:03:21] Speaker 04:
They publish a journal.

[00:03:23] Speaker 04:
It publishes a political article.

[00:03:24] Speaker 04:
Let's just, low hanging fruit.

[00:03:28] Speaker 04:
Undisputably political.

[00:03:31] Speaker 04:
Nobody's claiming that it advances the practice of law or relates to the regulation of lawyers.

[00:03:39] Speaker 04:
And the court has to look at it.

[00:03:45] Speaker 04:
And the argument is, it's not germane.

[00:03:49] Speaker 04:
And so how is that decision made?

[00:03:54] Speaker 04:
How closely does it have to relate to the purpose of the mandatory bar?

[00:04:03] Speaker 04:
Does it have to meet an exacting

[00:04:07] Speaker 04:
standard of relation, or can it be more liberal or rational and we can look at it more broadly?

[00:04:16] Speaker 02:
Certainly in the context of an associational claim, it must be exacting.

[00:04:20] Speaker 02:
It must inherently and directly relate to the bar's regulatory purpose.

[00:04:26] Speaker 02:
That's what the Fifth Circuit has said in McDonald, in Boudreau, using those terms.

[00:04:30] Speaker 04:
And I guess, is that part of whether the article is germane analysis, or are they somehow intertwined?

[00:04:41] Speaker 02:
Yeah, we're sort of left with this germaneness construct that flows probably back to the Abboud case, which

[00:04:49] Speaker 02:
Janus overturned.

[00:04:52] Speaker 02:
But courts, even analyzing the freedom of association claim, have nevertheless drawn from Keller for a couple of things.

[00:05:02] Speaker 02:
One is this whole Germaneness construct.

[00:05:04] Speaker 02:
The other is, well, what is the state's interest here?

[00:05:08] Speaker 02:
And Keller did say something about that in the context of the compelled speech claim.

[00:05:13] Speaker 02:
Keller, using the standard that was in place at the time, did note that a bar's activity can range on a wide spectrum.

[00:05:22] Speaker 02:
And it might be very easy to determine conduct and evaluate conduct at either end of that spectrum.

[00:05:29] Speaker 02:
I think the examples were advocating for a nuclear freeze, which was something of note in 1990 when Keller was excited.

[00:05:38] Speaker 02:
That's an easy call while promulgating ethical rules or the disciplinary function of lawyers and the other is another easy call.

[00:05:46] Speaker 02:
But the court kind of said there's going to be some line drawing because there's this broad spectrum.

[00:05:50] Speaker 02:
But when we look at the associational claim, we have this higher standard.

[00:05:56] Speaker 02:
We have at least exacting scrutiny.

[00:05:58] Speaker 02:
That focuses the inquiry at one end of the spectrum.

[00:06:02] Speaker 02:
That's where the line needs to be drawn.

[00:06:04] Speaker 04:
So you want to get rid of whether something's germane, as discussed by Keller?

[00:06:11] Speaker 02:
I don't think that's the... I guess linguistically, it facilitates communication to use that term.

[00:06:22] Speaker 02:
I think it's germane is viewed through the lens of the exacting scrutiny.

[00:06:27] Speaker 04:
OK, so that was you have just landed on where I've been trying to figure out what we're talking about here.

[00:06:34] Speaker 04:
So in this context, when we look at whether something is germane, we look at it with exacting scrutiny.

[00:06:45] Speaker 04:
as opposed to looking at it to determine if there's some kind of rational relationship between the bar's function and the article.

[00:06:52] Speaker 04:
Correct.

[00:06:52] Speaker 04:
Okay.

[00:06:53] Speaker 02:
Correct.

[00:06:53] Speaker 02:
And back to the district court's order, as evidence of the application of the lower, very low bar that was set,

[00:07:04] Speaker 02:
In the court's evaluation of the bar's conduct, the order on page 19 refers to, and this was discussing one of the articles put at issue, well, it's, quote, reasonably related to the advancement of the acceptable goals of the bar, unquote.

[00:07:19] Speaker 02:
There's another example on

[00:07:21] Speaker 02:
on page 16 where, discussing another article, the district court said, well, it relates, quote unquote, relates to, quote, the core function to advance the interest of the profession.

[00:07:33] Speaker 02:
That's the rational basis test here.

[00:07:37] Speaker 02:
And that's where the district court got the analysis wrong.

[00:07:41] Speaker 01:
Counsel, can I ask you about the review that we apply, regardless of the standard, to examples that were given

[00:07:48] Speaker 01:
about activities of the bar, because they strike me as maybe categorically different, meaning that lobbying activities, for example, the bar man, undertake compared to the journal.

[00:07:58] Speaker 01:
And there seems to be a lot of dispute about the journal.

[00:08:01] Speaker 01:
But why would we or any court parse through a whole bar journal to see if there's any particular article or ad or sentence that may not be germane?

[00:08:11] Speaker 01:
and therefore sort of wipes out the journal.

[00:08:13] Speaker 01:
The journal just strikes me as a magazine published by the bar with a disclaimer that says all of the articles published in herein are not necessarily the views of the bar, it's just a forum for ideas.

[00:08:25] Speaker 01:
So why should we or any court engage in this exercise of combing through the journal searching for any germanness or non-germanness?

[00:08:34] Speaker 02:
Well, we're certainly not attempting to burden the court.

[00:08:36] Speaker 02:
I know we've cited a lot of examples in this case.

[00:08:39] Speaker 02:
But our client can look nowhere else than the court for defense of her constitutional right here.

[00:08:45] Speaker 02:
You mentioned the publications in the journal that there's a disclaimer in there.

[00:08:49] Speaker 02:
This is not a compelled speech claim here.

[00:08:52] Speaker 02:
This is a freedom of association claim here.

[00:08:55] Speaker 02:
A disclaimer means nothing.

[00:08:57] Speaker 02:
in that context.

[00:08:59] Speaker 00:
Why not?

[00:09:00] Speaker 02:
Because the bar chooses to publish what it wants to publish.

[00:09:04] Speaker 02:
It chooses the articles that it published, and it's not important for an associational claim that any third party perceives those as Ms.

[00:09:14] Speaker 02:
Pomeroy is in agreement with it.

[00:09:17] Speaker 01:
So it's the exercise of editorial control over the journal itself that means the disclaimer has no function.

[00:09:23] Speaker 02:
Well, it's Miss Pomeroy's personal right of freedom of association.

[00:09:29] Speaker 02:
Membership in the bar, this was said by the Fifth Circuit in McDonald, membership itself is communicative.

[00:09:37] Speaker 02:
And Miss Pomeroy has no choice.

[00:09:38] Speaker 02:
She is compelled to be a member of the bar.

[00:09:41] Speaker 02:
The bar publishes the magazine.

[00:09:43] Speaker 02:
The bar decides what goes in the magazine.

[00:09:46] Speaker 02:
And she has no option.

[00:09:47] Speaker 02:
She has no ability to disassociate with that.

[00:09:50] Speaker 02:
We discussed this a little in our reply brief.

[00:09:55] Speaker 02:
There's a little bit of fundamental difference between the compelled speech right, which in some instances can be redressed with a disclaimer because compelled speech involves communication and debate and whatnot, while the associational claim cannot because of the very nature of the right.

[00:10:17] Speaker 02:
And that's another reason why

[00:10:19] Speaker 02:
it makes perfect sense to apply a higher level of scrutiny with respect to an associational claim than perhaps a compelled speech claim.

[00:10:31] Speaker 02:
And that stems from the fact that when Keller looked at the compelled speech claim, it adopted this Hudson procedure whereby, well, if we say something that goes outside the lines, you can object, and there's a process, and perhaps you'll eventually get your portion of the money that subsidized that speech back.

[00:10:55] Speaker 02:
Refund does not redress an associational injury.

[00:10:58] Speaker 02:
That means we need higher scrutiny with those types of claims.

[00:11:03] Speaker 02:
Another example of that is the Crow case, which was the challenge to the Oregon bar.

[00:11:09] Speaker 02:
In that case, the plaintiffs brought both compelled speech and association claims, and at least one of the plaintiffs did object to the bar

[00:11:18] Speaker 02:
on some of its publications.

[00:11:20] Speaker 02:
The bar, of course, as you would expect the bar to do, says, no, everything we do is okay.

[00:11:27] Speaker 02:
But we don't want to fight with you over it, so we'll refund you your dollar and 17 cents.

[00:11:33] Speaker 02:
And that takes care of, now your compelled speech claim, that redresses it.

[00:11:39] Speaker 02:
We disagree that that's appropriate, because the bar has already used the money.

[00:11:43] Speaker 02:
It's been lent to the bar, effectively.

[00:11:46] Speaker 02:
But that mechanism doesn't exist with an associational claim.

[00:11:51] Speaker 01:
So what I'm hearing is your associational claim

[00:11:53] Speaker 01:
is really your winner, whether it be how you get around Shell, or the examples of the disclaimer in the journal, or even the Hudson procedures.

[00:12:02] Speaker 01:
Because all your answers to all those questions seems to be that doesn't apply to the associational claims.

[00:12:07] Speaker 01:
So that's the one we should be focused on.

[00:12:09] Speaker 02:
Correct, Your Honor.

[00:12:11] Speaker 02:
And Ms.

[00:12:12] Speaker 02:
Pomeroy has put before the district court and this court a raft of examples of where the bar has strayed outside the lines significantly.

[00:12:21] Speaker 02:
on the legislative front, just one, going back to Shell on the legislative front.

[00:12:27] Speaker 02:
This court in Shell, when looking again at that case in the motion to dismiss stage, one of the allegations was, well, the Oklahoma bar engages in non-germane activities with respect to its legislative activities.

[00:12:40] Speaker 02:
And this court found that allegation on a motion to dismiss standard was insufficient because it didn't say

[00:12:46] Speaker 02:
the type of legislative activities.

[00:12:49] Speaker 02:
And this was a footnote in Shell that said what we need to know basically is did the bar oppose the legislation, support it, try to amend it, introduce its own draft.

[00:13:00] Speaker 02:
Ms.

[00:13:00] Speaker 02:
Pomeroy has identified, not only in her complaint but after discovery, numerous instances of legislative very active

[00:13:10] Speaker 02:
Legislative activity with great precision looking to the bars own website where it lists all the bills that Oppose and it says we oppose we support it identifies the bill by bill number in year title of the bill in our papers We've had a little more gloss to sort of help explain the title of the bill But there there are numerous examples there were the bar has gone outside the line the bar is weighed in on bills related to

[00:13:35] Speaker 02:
Utah laws relating to the term of confinement for a juvenile offender to a secure facility and adding a substantive provision that the term of confinement can't be more than what a Adult would get who is similarly charged that has nothing to do with the regulation of lawyers or the lawyers role in improving the quality of legal services and there's

[00:13:59] Speaker 01:
Counsel, I'm sorry, I know you're getting short on time, but is your maintenance a question of fact or a question of law?

[00:14:04] Speaker 02:
It's a question of law.

[00:14:05] Speaker 02:
Ultimately, this court will do what it did in Shell and look at the evidence, will do the same thing that the Fifth Circuit did in McDonald, Goudreau.

[00:14:15] Speaker 02:
In Crow, the court did that.

[00:14:17] Speaker 02:
And in Crow, I should point out, there was also legislative activity at issue there, but the court stopped after evaluating one page published in one issue

[00:14:27] Speaker 02:
of the Oregon Bar Journal published in 2017 and said the content of that page was outside the lines, non-germane, therefore the plaintiff's rights had been violated, requiring reversal and remand to the district court for a remedy.

[00:14:42] Speaker 00:
And with that... May I ask one question?

[00:14:43] Speaker 04:
Of course.

[00:14:46] Speaker 00:
Could plaintiff make a associational claim without regard to the germane-ness question

[00:14:56] Speaker 00:
That is, could she say, I simply do not want to associate with the kinds of lawyers that are involved in the Bar Association, and you are forcing me to associate with people I don't like.

[00:15:11] Speaker 00:
And I'm not talking about any germane statements or non-germane statements, but I disagree with that association, and you can't force me to take it.

[00:15:22] Speaker 00:
I assume she's not making that broad a claim, but could she?

[00:15:28] Speaker 02:
Yes, and I think others have made that claim, and that is not the claim here.

[00:15:33] Speaker 02:
The claim here is that Ms.

[00:15:35] Speaker 02:
Palmer is claiming her associational rights are violated because of the conduct and cites instances of conduct.

[00:15:42] Speaker 00:
But the conduct, then, is I'm only not wanting to associate because they are forcing me to

[00:15:49] Speaker 00:
join substantive statements that I don't agree with.

[00:15:54] Speaker 00:
Because my speech rights, basically, or my associational rights, related to speech content are being violated.

[00:16:01] Speaker 02:
Yes, Your Honor.

[00:16:03] Speaker 00:
But she wouldn't necessarily need to say that's the reason.

[00:16:08] Speaker 02:
Well, I think to perhaps survive a motion to dismiss like this court rolled in shells, she's going to have to give some reasons.

[00:16:16] Speaker 02:
And she has in this case.

[00:16:18] Speaker 00:
The association of rights are not absolute.

[00:16:21] Speaker 00:
They are conditioned upon a reason that your constitutional rights are somehow being violated.

[00:16:27] Speaker 00:
It's what all comes back then to germane-ness, probably.

[00:16:35] Speaker 02:
That is the type of claim that Ms.

[00:16:37] Speaker 02:
Pomeroy has brought here.

[00:16:38] Speaker 00:
If we think that the bar has only acted in a germane way, she loses.

[00:16:48] Speaker 02:
germane way in the context of looking at it with a proper level of scrutiny.

[00:16:53] Speaker 00:
With a proper level of scrutiny.

[00:16:55] Speaker 00:
And does that require 100% purity, even better than ivory soap?

[00:17:02] Speaker 00:
Or could you take any, do you believe in a de minimis exception for an occasional mistake?

[00:17:10] Speaker 02:
No.

[00:17:10] Speaker 02:
There is no recognized de minimis exception.

[00:17:14] Speaker 00:
There is a case that does recognize de minimis.

[00:17:18] Speaker 00:
Not in our circuit, I think, but there is some authority for de minimis.

[00:17:24] Speaker 02:
I'm not aware of it.

[00:17:25] Speaker 02:
I know the Fifth Circuit rejected that argument was made in the Fifth Circuit.

[00:17:29] Speaker 02:
It expressly rejected it.

[00:17:30] Speaker 02:
There is no de minimis exception to the First Amendment.

[00:17:33] Speaker 04:
Not to endanger us of going down the path from last case, but would Lathrop suggest that there could be some kind of de minimis standard?

[00:17:42] Speaker 02:
No.

[00:17:43] Speaker 02:
I mean, Lathrop was a fractured opinion that a lot of courts that are as difficult to divine the ultimate outcome of that.

[00:17:53] Speaker 02:
I think the ultimate thing you can say about that Lathrop said was states can't compel lawyers to pay dues.

[00:17:59] Speaker 02:
That's it.

[00:18:01] Speaker 02:
It would be unmanageable to try, and very difficult for a plaintiff to allege under Rule 11, that

[00:18:07] Speaker 02:
the non-German conduct constitutes a majority of the activities.

[00:18:13] Speaker 02:
How does one determine what the majority of activities are?

[00:18:16] Speaker 02:
And certainly, the Ninth Circuit in Crow, one page of one issue of a journal published years ago.

[00:18:23] Speaker 02:
In Boudreau, that case boiled down to about 15 social media posts.

[00:18:30] Speaker 02:
It would be very easy for either one of those groups, even in Shell, looking at whether it had been played properly,

[00:18:36] Speaker 02:
law journal articles.

[00:18:38] Speaker 02:
I mean, this court could have said, OK, whether they're germane or not doesn't matter.

[00:18:43] Speaker 02:
That's only two.

[00:18:44] Speaker 04:
And you do not allege.

[00:18:46] Speaker 04:
Let's cut it off here and see if Judge Federico has a question.

[00:18:49] Speaker 04:
All right.

[00:18:49] Speaker 04:
I have none further.

[00:18:50] Speaker 04:
Judge Abel said he did what lawyers did.

[00:18:53] Speaker 04:
One more question, Judge, and then you have several afterwards.

[00:18:57] Speaker 04:
But anyway, thank you, counsel.

[00:18:59] Speaker 04:
Mr. Baldwin?

[00:19:06] Speaker 03:
Thank you, Your Honor.

[00:19:08] Speaker 03:
Good afternoon.

[00:19:08] Speaker 03:
Dick Bolden on behalf of the Utah State Bar.

[00:19:12] Speaker 03:
May it please the court.

[00:19:15] Speaker 03:
I do want to get to the points you were just describing, but I think it would help to set the stage a little bit for what is and what is not before the court.

[00:19:22] Speaker 03:
So these integrated bar association challenge cases tend to fall into two camps.

[00:19:28] Speaker 03:
And it falls entirely based on where the germane misdetermination comes out, where there is entirely germane conduct.

[00:19:35] Speaker 03:
Every court concludes that there is no constitutional violation for compelled speech or compelled association because it survives whatever level of scrutiny would apply.

[00:19:45] Speaker 03:
The other cases are where there has been a finding of some non-Germane conduct.

[00:19:51] Speaker 03:
And the Ninth Circuit and the Fifth Circuit have recently faced some of those cases.

[00:19:56] Speaker 03:
And those implicate the unresolved question that Keller identified in light of the shoulders it was standing on, which was the Lathrop decision, and then Keller, that after that, what was undecided was what happens under the First Amendment when a bar association engages in some non-germane conduct.

[00:20:15] Speaker 03:
For the associational purposes, that was the unresolved question.

[00:20:19] Speaker 03:
And just a quick side note before I continue to lay out what is and isn't before the court, Judge Ebell hit right on the point

[00:20:25] Speaker 03:
which is that the association claim really is sort of the key here, but Lathrop expressly decided the association point.

[00:20:33] Speaker 03:
And it concluded that in the abstract, the concept of being compelled to join the bar without non-germane conduct, but just as a general matter, that was Lathrop's holding.

[00:20:43] Speaker 03:
And this court in Shell recognized that.

[00:20:46] Speaker 03:
It said, reading from page 1187 of the opinion,

[00:20:52] Speaker 03:
Although the court did not issue a majority opinion, seven justices agreed that the First Amendment right to freedom of association did not prescribe mandatory bar dues or membership.

[00:21:02] Speaker 03:
So the notion that the association claim is the foot in the door that's going to blow all this apart, we're not writing on fresh snow here.

[00:21:09] Speaker 03:
There's not fresh snow.

[00:21:10] Speaker 03:
The Lathrop decision addressed that question in the general proposition.

[00:21:15] Speaker 03:
Keller relied on that, and all of the courts have recognized that.

[00:21:18] Speaker 03:
So the only question is whether there is

[00:21:20] Speaker 03:
whether a plaintiff can find some non-German conduct.

[00:21:23] Speaker 03:
And that may open the door to deciding, effectively, what's the remedy that's going to be appropriate here?

[00:21:28] Speaker 03:
And that's what the Fifth Circuit and Ninth Circuit have been grappling with.

[00:21:31] Speaker 03:
And that's where the exacting scrutiny really comes into play.

[00:21:34] Speaker 03:
But I want to put a pin in that because I want to continue talking about what is, in fact, before the court.

[00:21:39] Speaker 03:
The opening brief, in trying to figure out what the target was that I was needing to respond to,

[00:21:46] Speaker 03:
was a bit difficult.

[00:21:47] Speaker 03:
And there's a good explanation for that that I would submit explains it.

[00:21:51] Speaker 03:
And that is that significant portions of the argument section were copied and pasted from the opening motion for summary judgment.

[00:21:57] Speaker 03:
And so it's not a surprise that the opening brief doesn't, you don't walk away from the opening brief with any real idea of what the district court decided, what its analysis was, what the evidence was that it relied on.

[00:22:09] Speaker 03:
and how it reaches conclusion and therefore how it actually committed an error other than at the very stratospheric level where there are challenges to only the applicable standard and not in any way the application of that standard.

[00:22:21] Speaker 04:
I presume you're going to tell us.

[00:22:23] Speaker 04:
Well, of how it's... What I don't want to do is I sense some tension in this briefing, and I don't want to get into how bad their briefing was discussion.

[00:22:32] Speaker 04:
I'd like you to go ahead and make your argument on the merits.

[00:22:35] Speaker 03:
No, absolutely.

[00:22:37] Speaker 03:
Fair point.

[00:22:37] Speaker 03:
I'm trying to explain why some things are helpful from their clarification and their responses in the motion briefing to point us at just the standard.

[00:22:46] Speaker 03:
And that's what we've heard today, is we're really talking about what's the germane-ness standard.

[00:22:51] Speaker 03:
That's the thing I want to put opinion.

[00:22:52] Speaker 03:
I really want to just quickly get to the other points are the refund claim, the opt-in, the adequacy of the other information.

[00:22:59] Speaker 03:
Those things all fall into that same bucket of their not being inadequately brief or failing to meet their burden on appeal to be able to challenge the district's reasoning for those, which leaves us with the germane standard.

[00:23:10] Speaker 03:
And what I would address to the court is, in addition to the point that I just made about the Lathrop decision having undermined this point about

[00:23:19] Speaker 03:
the association claim having not been resolved in any context, Shell itself expressly decided this.

[00:23:27] Speaker 03:
There were claims, their May 2018 article that is within the section describing the freedom of association claim, the court looked at, I think it was six different instances of conduct and it remanded based on two of them.

[00:23:44] Speaker 03:
So the other four, under the association claim,

[00:23:47] Speaker 03:
The court evaluated under the Germaneness standard, not under some exotic version of Germaneness or some new version of Germaneness.

[00:23:55] Speaker 03:
It was the Keller standard.

[00:23:57] Speaker 03:
And Schell applied that and affirmed the dismissal based on those.

[00:24:01] Speaker 03:
The May 2018 article specifically is responding to criticism of Oklahoma's merit-based process for selecting judges.

[00:24:07] Speaker 03:
And the Tenth Circuit concluded that even though that had been the basis for a claim for violation of the Freedom of Association,

[00:24:16] Speaker 03:
that based on its conclusion that that was germane, it affirmed the dismissal of that claim.

[00:24:23] Speaker 03:
Secondly, a lot of the argument about what the standard is relies heavily on the Boudreaux decision.

[00:24:33] Speaker 03:
And I would invite the court to take a close look at the second Boudreaux decision.

[00:24:40] Speaker 03:
This is where the court had

[00:24:44] Speaker 03:
at times described that the appropriate question for germaneness is not Keller's description that it should be reasonably related or necessarily or reasonably incurred.

[00:24:56] Speaker 03:
Expenses should be necessarily reasonably incurred in furtherance of the two purposes.

[00:25:01] Speaker 03:
But instead, my friend asserts that the Fifth Circuit teaches that the standard is instead whether the conduct is inherently tied to the legal profession in some way.

[00:25:11] Speaker 03:
But reading Boudreau, it doesn't really say that.

[00:25:16] Speaker 03:
Boudreau at page 631 says that to be germane, Bar Association speech must be reasonably related to the Bar Association's purposes of regulating the practice of law or improving the quality of legal services.

[00:25:29] Speaker 03:
That's precisely the test that we assert applies.

[00:25:33] Speaker 03:
Later, it is talking about

[00:25:35] Speaker 03:
explaining its conclusions and its analysis of how to apply this Keller standard, and at one point it describes the inherent relationship that it acknowledges as a way of describing how it's reaching its conclusion.

[00:25:47] Speaker 03:
Again, towards the end, at page 635, it reiterates that speech must be reasonably related to the regulation or improvement of legal practice.

[00:25:58] Speaker 03:
So even the high watermark that Ms.

[00:26:01] Speaker 03:
Pomeroy has asserted as the basis for concluding that somehow exacting scrutiny

[00:26:05] Speaker 03:
and germaneness interact in some meaningful way, rather than germaneness being a threshold question that leads to the question of what essentially the result will be under the exacting scrutiny framework.

[00:26:17] Speaker 03:
That case doesn't agree with her.

[00:26:18] Speaker 03:
It concludes that the standard that every court has recognized and applied continues to apply, which is Keller's germaneness test, that the conduct must be reasonably related to regulating the practice of law or improving the quality and availability of legal services.

[00:26:37] Speaker 03:
Let's see.

[00:26:49] Speaker 03:
I would also urge the court to review not just Shell and what I just described from Boudreaux, but also Crowe 1, that first decision, also undermines the assertion that exacting scrutiny in some way has displaced the germane standard.

[00:27:06] Speaker 03:
Instead, Crow One seems to contemplate that Germaneness exists within the context of exacting scrutiny, and that really we're talking about a semantic distinction, that exacting scrutiny may be the overarching framework, but the lens that we're looking through is Germaneness, and that hasn't changed because something, so long as the bar has engaged in germane conduct, it would survive exacting scrutiny.

[00:27:29] Speaker 01:
Council, Ms.

[00:27:29] Speaker 01:
Pomeroy had a list of bills that were before the legislature that said the bar took some legislative or lobbying activity towards.

[00:27:38] Speaker 01:
I read your response to say that most of those had not been put before the district court, I think, and so we shouldn't consider them.

[00:27:46] Speaker 01:
Are there only two bills that you would agree are under our review applying whatever test will say Jermain is for purposes of this question or what should we be reviewing in terms of the bars legislative and lobbying activities.

[00:28:00] Speaker 03:
There are only the two that are before the court the district court exercises discretion to not consider the others because there was not adequate notice that those.

[00:28:08] Speaker 03:
were the subject of their claims, and so no discovery was conducted on them.

[00:28:11] Speaker 03:
Even standing here today, I couldn't describe to you what those bills were entirely about.

[00:28:17] Speaker 03:
Or I think more importantly, for purposes of conducting a worthwhile Germaneness inquiry, is I have no concept of what the context was.

[00:28:27] Speaker 03:
I don't know what the district report's specific position was.

[00:28:29] Speaker 03:
I don't know if they did, in fact, like the lobbying relating to taxes on professional taxes.

[00:28:38] Speaker 03:
I don't know if, like in that circumstance, the state bar's conduct was very narrowly and strictly limited to only discussing what was inherent to the legal profession, which is only taxes on legal services.

[00:28:51] Speaker 03:
With all of that laundry list of bills, we had no opportunity to

[00:28:54] Speaker 03:
Create a record and to be able to really describe what the ultimate germanist conclusion would be and that's why the district court Properly exercises discretion to not consider those bills especially the ones that showed up for the first time in the opening brief That's certainly true as well one other point that I would bring up is

[00:29:18] Speaker 03:
The suggestion has been made that we are asserting some sort of rational basis test for Germaneness, and I think that that's inaccurate.

[00:29:24] Speaker 03:
I don't think that the Germaneness inquiry is rational basis.

[00:29:27] Speaker 03:
I think sort of a very high level response to that is that it would be very strange for rational basis to lead to so many determinations in the Fifth Circuit and Ninth Circuit of non-Germaneness.

[00:29:41] Speaker 03:
That's not typically how rational basis would work.

[00:29:44] Speaker 03:
So the output of that test sort of tells us it's clearly not quite that deferential.

[00:29:48] Speaker 03:
But deference does play a role.

[00:29:51] Speaker 03:
We cited to the Seventh Circuit case in our brief.

[00:29:54] Speaker 03:
But again, the Fifth Circuit, the circuit that Miss Pomeroy has been relying on for her argument, it also has expressly said, both in McDonald and Boudreau, that it will defer to State Bar's determinations as to regulating the practice of law.

[00:30:10] Speaker 03:
And so if there are no further questions, I think that would be it.

[00:30:14] Speaker 01:
I have one more.

[00:30:17] Speaker 01:
whether or not germane-ness is a question of law or a question of fact.

[00:30:21] Speaker 01:
I understand that germane-ness test is a legal test.

[00:30:25] Speaker 01:
But here, my recollection is the district court found all the bar's activities that were before it were germane.

[00:30:30] Speaker 01:
When we're reviewing that decision, what standard of review would you say we apply to it?

[00:30:37] Speaker 03:
The determination itself would be a de novo review.

[00:30:39] Speaker 03:
It is a legal question.

[00:30:40] Speaker 03:
There were no disputed facts.

[00:30:42] Speaker 03:
Ms.

[00:30:42] Speaker 03:
Pomeroy presented no facts that would create a factual dispute that would have precluded

[00:30:46] Speaker 03:
summary judgment on a factual dispute basis.

[00:30:50] Speaker 03:
And the courts appear to be uniform in concluding that that determination is a legal one.

[00:30:59] Speaker 04:
Thank you, Council.

[00:31:01] Speaker 04:
Thank you.

[00:31:01] Speaker 04:
Council will be excused.

[00:31:02] Speaker 04:
Oh wait, we have any rebuttal time left?

[00:31:05] Speaker 04:
Okay.

[00:31:05] Speaker 04:
Council will be excused and the case is submitted.