with the supreme court's actual holdings anywhere in the date of the supreme court has been eroded by subsequent holdings of the supreme court so in this case we think that it's quite clear if you read keller at the actual holding of the case is that mandatory bar views and membership are subject to the same constitutional rule under the st amendment that applies to mandatory public sector union dues and so at the time when cal it was decided to boards that was a different  exists now but the reason we think that the clear holding of keller is this equation between our association ends and public sector unions is because that's what was necessary to overturn the decision that heller was actually reviewing in that you have to look at what the posture was as the case came to the supreme court in color and the posture of the case was that the california supreme court had rejected a st amendment challenge just categorically rejected a st amendment challenge to mandatory par untrue that they're exempt from persimmons and then what is the other component of the holding it was the reasoning necessary that result and the reasoning necessary to result was there not government agencies that are analogous to public sector unions that  so that was the whole thing in the sense of that's the reason and that is the result to reverse the lower court's decision exempting the st and they send their analogous so they have to be subject to the same constitutional rule that public sector unions are subject to so we think that's the holding and then there was to be sure some subsequent debt or where they said and here is how we think that same constitutional rule would apply based on the case of her mood which was the case that ben supplied the constitutional rule for public sector unions scrutiny and the state doesn't even try to explain how it can possibly satisfy the months what do you think do you find it surprising that janice didn't indicate that it was overwhelming kalar no you about what courts should do when applying the constitutional it didn't even say what the constitutional rule is it just said it has to be the same punch disenroll so we're asking you to apply the holding of color which is to say that must apply the same constitutional or more that s very strong interest in having the bar educated and having disciplinary actions taken against the bar against members that are violated and part of the principle reason for requiring attorneys to join a bar association is to pay for these activities that rather than imposing that on the public at large those who benefit from being members of the or most should pay that do you have any concern if say  you didn't have to belong to the bar association that you had to pay a fee every year which goes to those activities to other states that regulate the profession and serve those goals without requiring mandatory garments and without requiring an enduring barges so we think if you have a licensing fee for example you want to be licensed to practice law and state hey licensing  regulatory agency can use that the over the costs of its regulatory functions there's no need to make this join a private organization agents to a private organization that engages in political and ideological i'd say so so yes we think that it probably would be permissible to require wealthy conservative libertarian whatever that means talks about oil and gas regulation there's no need it's it it's agree just st amendment violation and completely unnecessary under under the arrangements in oklahoma that's all you actually have to pay for with your dues you don't have to pay for any of the it is a logical activity you did and so your problem is you don't want to be considered a member are germane what they can compel people to pay for and it includes things like talking about judicial selection tort reform and publishing a bar journal that talks about al gore and his environmental costs so if that's offensive offensive to the  instead of partisan elections is inappropriate that's a geological and you shouldn't have to pay if you prevail on that is it still your position that you shouldn't have to be a member that being a separate injury we think that the heller case clearly reserved this question when it said it you know there's a separate question about whether membership forcing you to join an organization that engages a non germane one argument would be permissible and we think that's clearly the ca and all of the stuff that you claim to be you know about al gore and about about various policy issues creasy that you used as to limitations so that the only statements that you cite about what the oklahoma bar journal reported in the two year time frame appear to me very germane to the practice of the law so i don't know i mean this case has some very difficult legal issues in it but it seems to me this particular case that you brought may suffer a real problem because on the record we can only consider a few of the oklahoma par and they all clearly appear to me to be germane to the practice of law well so i could get your comment on that yesterday we're not seeking retrospective relief of course in the way that we need to do it we are attacking previous expenditures for being unconstitutional we're merely obviously change so you know truth has to be within the statute limitations what are their policies and the policies of the articles ringback far as i can tell are all quite dreamy and anon offensive to legal practice y we can make statements about who want to be the next president deputy i just simply see statements alleged here of things that were published that were offensive that low life and those things some of them were it legal related or legal court and which which is again are they related again but that's that's the precisely the type of thing that even if it is legally related would be unconstitutional still to force us to support under the rule of  overturns and prevents the bar from doing that we're just saying a pencil far from forcing us to pay for it which is a very important stench and and sue i think if you look at article eight section four of your b s bylaws they provided that you give me endorse any proposal for the improvement of did not uphold any particular practices because the court said it wasn't clear enough on the record there what practices were engaged in by our so you know i face if it were just engaged in regulating the bar and not doing any political had lots of live so that's i think the bare minimum that they were talking about they were talking about the issue presented here of political ideological  those issues were raised weren't they they were raised but the court didn't address them because it found out the record wasn't clear enough and there had been you know judicial notice of a bunch of things so it wasn't like the present case where we our money i'd like to pursue this issue of the offense that might be taken from being a member of an organization that takes positions and the the opinion he says i do i do not think a subsequent decision by the representatives of the majority of the bar members to devote some part of the organization's funds to the further are in the barnett realm of quote asserted power to force an american citizen publicly to profess any statement of belief or to engage in any ceremony of assent to one end of quote which i take to knew you shouldn't take offense at something the bar does that you might disagree with because you're not going to be tarnished with that no one's going to assume that you believe that at how would you respond to that statement so i think you can certainly recognize that it's not as significant of an infringement on someone's st amendment rights as it would be to force them to actually  you got to join the republican party to be a practicing member of the bar then that of course is going to be a significant impingement on your st amendment rights even if you don't have to do anything else even if you don't have to say anything just that we're seeing you're joining an organization you just heard plaintiff says of that language and other similar lines of the opinion is not keller's holding and he has two basic arguments so st he says the whole thing in keller you heard it is only what was necessary to reverse the california supreme court but plenty of sites no authority for the proposition that a case is holding is only what was necessary to reverse and i submit we know that that's wrong for example this court sometimes addresses issues that a district court didn't reach at all it's surely not the case that whenever this court does that everything the court says on an issue the district court didn't reach is dicta again if i offer is no authority for that now there is a story saying that a holding is only what was necessary to the result but the result and reversal are not the same thing but keller itself shows that they are not the same the result in keller was not just that the california supreme court was reverse the result was that the st amendment challenge to the dues requirement failed plaintiff tries mightily in his briefing not to say that but he finally does on page twenty nine of his opening brief so the result was that the barbies were constitutional that plaintiff again tries to avoid this by saying repeatedly and said again this morning that the u s supreme court rules for the plaintiffs i'm quite sure that any teller on the other plaintiffs in keller disagree with that they won on the threshold question of whether bar speech is the government's but they have lost on the underlying issue of whether bar dues are constitutional as long as a bar has the teachers vs hudson procedures in using its name its political and ideological causes or beliefs this request for belief for relief appears to implicate a much broader freedom of association claim and was that issue and l petitioners challenge not only their compelled financial support group activities but heard that they cannot be compelled to associate with an organization that engages in political or your logical activities beyond those for which mandatory financial support is justified under the principles of lay through and abood become a foreigner courts did not address this claim and we declined to do so in the st instance the state courts remain free of course to consider this issue and remain is  isn't that at least one of the issues raised in this case so a threshold response judge hearts what i was talking about at the outset of my argument was the point just challenge to the jews requirement then graf you read goes the membership requirement and i'm happy to address that now i hope to get back to the dues i'm sorry i wanted to make sure you can you can talk about the do thing that we can switch to membership if you like very good your honor i will then proceed with what i can argue about keller's holding and why it is not foreclose his dues challenge that is his free speech challenge so he says you heard it that what color hell is that the st amendment rule for mandatory barred use blocking the tracks for ever the st amendment rule for mandatory union dues now there are several fatal problems with that characterization of keller's old st there is no case support for a child has been cited about two hundred and fifty times by courts yet plaintiff doesn't cite one case in bracing his reading of kell hold so no case saying that the holding was a st amendment rule for mandatory barred use tracks forever the st amendment rule for mandatory union dues there is no authority for that reading and there's ample contrary authority including cases from the supreme court there's a southworth case that we cite there is the harris versus quinn case that we cite both of those scribed keller's holding as we do in fact southworth said that in keller quote we held that lawyers admitted to practice you decided in our brief and in the reply brief as well your honors yes i just didn't have the case written down yeah so you want to play his responses to all the cases we cite including southworth and harris i disagree with the responses on their merit but the point is what questions what was the holding southworth and and paris vs quinn both describe the holding the way we describe it as did for that matter if you want to look at beyond majority opinion see the most recent supreme court opinion of any kind discussing the  rather than adopting a specific substantive immutable st amendment rule for mandatory bargains he said held that the rule just tracks forever the rule for union dues i submit that is not how courts decide cases they do not when they are presented with this particular scenario or particular set of circumstances say the rule for this scenario tracks the rule for another scenario and plaintiff cites no other case with such a hold so his position would apparently make keller unique in all of american history and your honors if you want to see just how odd the holding that he posits would be under his position if heller itself that same case came before the supreme court today the court under his position would say we add here to the holding in color and therefore reach the just say the same constitutional rule as unions it says the same constitutional rule applies as public and private union dues now pledge of said this morning in his argument just public union a sentence he relies on and is with unions representing public and private employees so his position is that the bar dues rule tracks to other rules public union and private you know of course that raises the problem of what if those two other rules diverged which just tell is holding track or it's not a hypothetical scenario your honour's it has happened janus over ruled abood and change the rule for public union dues but it did not overrule a different case called ls which is discussed in color which set the rule for private union dues in fact janus made clear janus a very different st amendment question arises and quote with public union dues and private union that's page two for seventy nine of the jainist opinion in the supreme court reporter now your honour's the point is not that this court should decide whether the rule for  cited by no authority and under tellers actually holding i southworth as described by harris versus quinn his deuce challenge is for clothes now judge charts i want to turn to the membership challenge and if i can just lay a little bit of groundwork supreme court in later projected the same challenge plaintiff in that case said he did not want to be forced to associate with the state bar that he said engaged in what he called political and propaganda activities so plaintiff's argument this morning that later it was just about membership in a bar that engaged in activities everyone agrees is proper and not political or ideological speech is flatly ripped refuted by the by the opinion itself and as to the membership claim later said quote we are unable to find any impingement on protected asking so let me go to that one st i do want to good the good you want to go to his argument probably premised on later but south but he says as judge hart read parts read the court left open in keller a question at the end now there are two reasons that that doesn't oklahoma bar association certainly not within the statute of limitations right as was being discussed what's alleged is two categories of things really be the engagement in lobbying lobbying activity regarding legislation which we know from keller later is ok as long as the subject matter is germane here it is because the two pieces of legislation discussed in the complaint are about tort reform and about the selection of members of the judicial nominating commission so that's the st category that's all germane nd category is the oklahoma bar  association journal articles and all of them certainly again within the two your limitations period as was being discussed are all germane they're mostly about campaign finance which is germane because oklahoma's judges and justices stand for election so there is no the allegation in this complaint the oklahoma bar association engages in non germane expression so even if keller reserve the claim the plaintiffs says it doesn't matter he has not alleged that claim here he might point to paragraph one  action is not enough to plead a plausible claim for relief now i do want to go to his argument based on later up because you also heard it this morning he says lee threw didn't fully resolve the membership challenge because of the gap in the record about whether the state bar used the mandatory dues to fund the expressive activity two reasons i submit you know that argument is wrong st of all the language he's pointing to comes from the courts discussion about the deuce challenge about the free speech challenge it is true pointed to that gap in the record as a reason not to address the dues challenge which is what keller later addressed in keller says all this but later it did fully resolved later fully resolved the membership challenge the challenge the free association challenge that was presented there so the st reason is that he's drawing language from a totally different part of the opinion to say that it didn't resolve the membership challenge the nd reason you know he's wrong your honour's is that it would not have made any sense for the court to point to that gap in the record as a reason not to address the free association challenge right again the gap in the record was did the state bar use the mandatory dues to fund the expressive activity that doesn't bear on a membership challenge that bears on a free speech challenge  challenge plaintiffs says this himself on page ten of his reply brief and he said it again this morning when he talked about being forced to join the republican party right if there were a free association challenge here it would not be a defense to say well you're forced to join  expressive activity but we're not using your money to pay for that would not be a defense that would be a defense to a free speech challenge a challenge to the dues requirement it would not make sense to point to that gap in the record as a reason not to address the membership challenge plurality did not point to that gap in the record as a reason to not address the membership challenge it did address the membership challenge it fully resolved that it is the same chair that point if brings here on the last point i'll make i said there were two reasons on the on the keller paragraph number one is that he doesn't allege non germane activity the other is i submit that is not what keller was reserving and it would have been odd for the court to do that because it said in color itself lawyers practicing in the state may be required to join and pay dues to the state bar that's the opening paragraph of the opinion and it said the same thing later on page thirteen talking about the reasons for the compelled association what color was addressing her color was reserving i should say was a claim that went beyond later that's what the paragraph bulk was the phrase the plurality used the bulk of the bars activities were germane were legitimate for a bar in other words and later also said this it was not a case in which the bar was alleged to be a sham quote unquote sham was the paralyses words so to make a claim that goes beyond later to make the claim that keller reserved a plaintiff must allege that a bar is essentially a sham or at least that the will name a way but don't mention let me read that sentence one sentence from that paragraph and i don't think that's you fairly characterized but the court was reserving so as petitioners challenge not only their compelled financial support group activities but urged that they cannot be compelled to associate with an organization that engages in political or ideological activities beyond those for which mandatory financial support is justified under the principles of play for in a boom that's much narrower than saying it's a sham organisation much much n reserved as i said a moment ago if the american plate does not make any such allegation and the last point i'll make my time to finish my answer it would be quite odd if that were what color reserved given the language i read a moment ago quite clearly how you feel in the merits of the issue but let's assume it's preserved do you think that you can compel a lawyer to belong to a bar association t positions on your logical and political issues other than don't go beyond the edge educating the bar making sure members are ethical and things like yes and i want to expand on that direct answer judge hearts but i have to give a threshold answer which is that our position is that if the court disagrees that later bank teller foreclose this claim it should remain to the district court that was all that the court decided and those are the only issues that plaintiff presented in his opening preferred feel so we have not argued this but i want to address your question fully answer is yes it goes in part because what was asked of plaintiffs counsel the observation from justice harlan's concurrence in later up which is that free association principles show and this is in later cases like roberts vs us jaycee's that point to cites is only a free association violation if one could reason if the public if an observer could reasonably attribute the objected to expression to the person who is objecting and that's clearly not the case here as justice harlan said no one thinks that every member of the bar agrees with everything that was expressed by a state bar including it wasn't talking about this but including in its bar journal so yes that can be done and in fact that  we think harris confirms that because harris said applying the same exacting scrutiny it said that its decision in kalar which upheld the sort of compel the socit feel fit quite comfortably within the scheme that harris was applying that is exacting scrutiny of the last point i'll make that next year question if i can judge hearts is that plate that says we know the challenge would succeed here if it got to the merits because there are twenty other bars that use a different system well that of course is not enough the question is do those other bars serve the relevant government interests to the same degree as the oklahoma system it may well be the case that those bars do not do as good job at regulating the r v not us good job at improving the quality of legal services in the state i don't know that it's not a lake even alleged in the complaint so it wouldn't matter but if this case if we ever got to the merits that is a question that would require some further development which is another reason the court shouldn't address it let me give you  a not so hypothetical hypothetical the american bar association lot of judges believe the american bar association does a lot of great things for the law educating people good things twenty years ago a number of i think the great majority of appellate judges who were active in the a b a felt uncomfortable disagreeing with any of those positions they did not want to be associated with that unfair their consideration a number of judges decided you know what i think it's probably better that i don't belong and i'm not a member of the a v a because too many people think that as a member of the a p a i'm part of this i mean dorsey timid freedom of association clean how do you deal with that but just hard i want to sort of separate out the different parts of that question so to the  extent we're talking about the state bar and to extent we are talking about is that is our submission is the claim that later up address and rejected and essentially said look what is being required here you are required to join to the extent of paying d oklahoma bar association and you are free to disagree with that and the court and later a plurality plus the concurring justices took the position that the degree of required association is such that it can be justified by the state bars and the state interests in regulating the bar and improving the quality of legal services in the state now there may be room but they don't justify that just when you have to make a pretty good showing that you need to allow the state bar to do that had for a time been a voluntary organization in wisconsin supreme court ultimately decided it was not working it was there were many attorneys were not participating in the wisconsin supreme court's view was that the requisite intelligent active  widescale membership are that was necessary was not being achieved now this would have to be litigated again if this is not foreclosed by later being held these issues would have to be litigated but they don't have to be because they are foreclosed  just to finish the answer your question if i may judge are the aviators of course somewhat differently situated it is not a state organization it is not backed up by the power of the state and not claiming to be furthering state interest so it's in a little bit of a different box but certainly as helpful to the court one with respect to what the result of color was i think it's just clear what the result was the plaintiffs got everything they were asking for the plaintiffs in that case were arguing for the abboud rule and to overturn the california supreme court's decision they got exactly what they want i don't know why mister walczak says any color thought he lost the case he got everything he wanted he got relief in overturning the california supreme court he got the boot rule that he asked for given that he prevailed in all of his arguments there couldn't have been any holding rejecting any portion of his  amendment claim on the nd point he says it would be odd to tie together the rule between mandatory bar associations and union dues in particular because public sector and private sector dues have had different rules that's wrong i mean what what it's happening is you're just saying that the usual st amendment rule applies to all of these different contexts there's nothing odd about that saying because it's a private entity the usual st minute rule should apply and it with respect to the st amendment that is when you force somebody to join and pay money to an organization engaged in advocacy you have to justify that under exacting scrutiny there's not a different rule for private and public sector unions it's the same st amendment rule which is if there is state action involved forcing you to do this then exacting certain applies the difference between public and private sector unions is there is no state action in the private sector context and that's why you don't get the exact answer you know lives but it's the same st amendment rule in the presence of state action you do have to do so satisfied exacting scrutiny there's no question that his state action in this case just as there is in the public sector union case finally mister walczak says that did not address the member of the membership issue scuse me he said that it's not addressed the dues she would only address the membership issue but the reason that argument doesn't work is because what the court said it wasn't addressing was whether you can force someone to pay money to support and organization gauged in these other activities which was the dues question but the membership question is tied to that because the membership question is whether you can force someone to join an organization to engage that engages in the type of activities that the court said it wasn't going to address whether the organization was engaged in there so in other words that question was not resolved