Oklahoma Corrections Professional Association Inc et al v. Doerflinger
Filing
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ORDER granting 105 Motion for Summary Judgment; denying 106 Motion for Summary Judgment; denying 109 Motion to Strike ; denying 119 Motion to Amend/Correct, as more fully set out. Signed by Honorable David L. Russell on 11/3/14. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(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,
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Plaintiffs,
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v.
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PRESTON DOERFLINGER,
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Administrator and Cabinet Secretary for )
the Office of State Finance, in his
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official capacity,
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Defendant.
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Case No. CIV-10-1369-R
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.
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The Court will refer to the 2,000 member requirement as the “numerosity requirement,” and the
requirement that an association be limited to state employees as the “exclusivity requirement.”
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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,
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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 speakerviewpoint 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 requirement
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to “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 speakerbased 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 would
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permit 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.
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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 justification, Plaintiffs argue that
“the administrative burden of ongoing monitoring of membership totals for a single
employee association are greater than simply doing nothing.” Doc. No. 112, at 22. They
also contend that there is no such requirement for numerous other transactions that the
State engages in that “have a greater likelihood to administratively overwork the state
mechanism.” Id. at 35. Plaintiffs note that only four employee associations have ever
applied for VPD, and that two of these organizations have fewer members than OCP, but
are exempt from the numerosity requirement. Id. at 35-36. Finally, they point to the
testimony of the former Director of the agency responsible for VPD, in which he stated
that there would be no increased burden on the agency to continue deducting OCP
membership fees from employees’ payrolls. Doc. No. 107, Attach. 3, at 151.
Plaintiffs’ arguments impose a higher standard on the State than it is required to
satisfy under rational basis review. The “facts” underlying a rational basis for a statutory
classification need not actually be true. The justification “may be based on rational
speculation unsupported by evidence or empirical data.” Cordoba v. Massanari, 256 F.3d
1044, 1049 (10th Cir. 2001) (quoting FCC v. Beach Commc’ns., Inc., 508 U.S. 307, 315
(1993)). Thus, even if the agency administering VPD in 2008 was not actually burdened
by the amount of time it takes to approve or process VPDs, as long as this “fact” is
“reasonably conceivable,” that is sufficient to support a classification under rational basis
review. It is certainly conceivable that an agency would be less burdened with processing
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VPDs if the numerosity requirement were raised from 1,000 to 2,000, because fewer
organizations would qualify for the program. The legislature could have reasonably
concluded that the time saved from the decrease in the number of associations applying
for and participating in VPD would outweigh the time spent ensuring that those currently
participating in VPD maintain at least 2,000 members.
The Court finds a similar Supreme Court case, United States v. Maryland SavingsShare Insurance Corp., 400 U.S. 4 (1970) (per curiam), instructive on this point. In that
case, the plaintiff argued that a tax exemption for nonprofit corporations organized before
a certain date arbitrarily discriminated against nonprofit insurers, like itself, formed after
the specified date. Id. at 4-5. The Court held that the classification was rationally related
to a legitimate government interest. Id. at 6-7. It noted that “[t]he fact that Congress
enacts a statute containing a ‘grandfather clause,’ which exempts from the general
income tax certain corporations organized prior to a specified date, does not of itself
indicate that Congress has made an arbitrary classification.” Id. at 6. Rather, the Court
held that Congress may “refuse[] to exempt from tax newly formed corporations, the
multiplication of which might burden otherwise valid federal programs.” Id. at 6-7.
Similarly, the Oklahoma legislature may refuse to exempt from the numerosity
requirement organizations that had not obtained VPD status prior to January 1, 2008, if
only for the sole purpose of decreasing the potential burden on the State of managing the
VPD program.
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2. As Applied Violation
Plaintiffs also argue that the numerosity requirement violates the First Amendment
as applied to OCP because it is the only statewide association to be denied VPD status,
and this is due to its viewpoint. But they have not produced any evidence linking the
termination of OCP’s VPD status to its viewpoint. The evidence shows that the State’s
decision to terminate had nothing to do with its viewpoint, but rather was based simply
on OCP not maintaining 2,000 members. Doc. No. 107, Attach. 03, at 164, Attach. 04-17.
The Court thus finds that the numerosity requirement does not constitute viewpoint
discrimination either on its face or as applied to OCP.
B. Denying OCP a Limited Forum for Speech
Plaintiffs next argue that the VPD program creates a limited forum for speech, and
the State has denied OCP access to this forum in violation of the First Amendment. They
cite Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 800
(1985), for the proposition that access to the VPD can be restricted only if the restrictions
are “reasonable and [are] not an effort to suppress expression merely because public
officials oppose the speaker’s view.” Id. (citation omitted). In Cornelius, the Court
considered whether the federal government could exclude certain groups from the
Combined Federal Campaign, a program in which nonprofit groups solicit donations
from federal employees by disseminating written statements about their organization.
Cornelius, 473 U.S. at 790-91. But the First Amendment issue in that case was whether
the solicitations were speech, not whether the payroll deductions were speech. Id. at 797;
see also Bailey v. Callaghan, 715 F.3d 956, 958-59 (6th Cir. 2013) (holding that “a
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payroll deduction—the ministerial act of deducting a particular sum from an employee’s
paycheck,” is not speech).
Moreover, the Supreme Court has already held that if a state declines access to a
VPD program to a particular entity, it “does not suppress [ ] speech but simply declines to
promote it through public employers checkoffs.” Ysursa, 555 U.S. at 361. [T]he State is
not constitutionally obligated to provide payroll deductions at all,” id. at 359, and such a
program “requires only viewpoint neutrality,” Walker, 705 F.3d at 645 (citation omitted)
(citing Ysursa, 555 U.S. at 358-59). Plaintiffs have produced no evidence of viewpoint
discrimination underlying the numerosity requirement. Thus, “the Act must be upheld if
there is any rational basis for the law.” Utah Educ. Ass'n v. Shurtleff, 565 F.3d 1226,
1231 (10th Cir. 2009) (citing Ysursa, 555 U.S. at 359). There is a rational basis for this
requirement and thus, Plaintiffs’ First Amendment challenges to the numerosity
requirement fail.
C. Equal Protection
Plaintiffs argue that that the numerosity requirement also violates the Equal
Protection Clause of the Fourteenth Amendment. They do not allege that the State
discriminated against OCP because of its membership in a particular class; they therefore
raise the “class-of-one” theory of equal protection. To succeed on this claim, “a plaintiff
must first establish that others, ‘similarly situated in every material respect’ were treated
differently. A plaintiff must then show this difference in treatment was without rational
basis, that is, the government action was ‘irrational and abusive,’ and ‘wholly unrelated
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to any legitimate state activity.’” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1216 (10th Cir. 2011) (citations omitted).
First, Plaintiffs have produced no evidence that the State is enforcing the
numerosity requirement unequally with regard to organizations not approved for VPD
prior to January 1, 2008. Therefore, any as-applied equal protection claim must fail.
Second, even if OCP is “similarly situated in every material respect” to the organizations
exempted from numerosity, the Court has found that there is a rational basis for such a
distinction. Accordingly, Plaintiff’s equal protection challenge to the numerosity
requirement on its face also fails.
Exclusivity Requirement
Plaintiffs next argue that the exclusivity requirement violates their right of
association under the First Amendment and the Equal Protection Clause of the Fourteenth
Amendment. Plaintiffs lack standing for these claims because their injuries are not
redressible by the Court, and thus such claims are dismissed for lack of subject matter
jurisdiction.2
“Standing ‘is the threshold question in every federal case, determining the power
of the court to entertain the suit.’” Opala v. Watt, 454 F.3d 1154, 1157 (10th Cir. 2006)
(quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). Standing is a jurisdictional
requirement that the Court is required to address sua sponte to ensure that there is an
Article III case or controversy before it. Rector v. City and County of Denver, 348 F.3d
2
Although the Tenth Circuit vacated this Court’s dismissal of Plaintiffs’ claims for lack of subject matter
jurisdiction in Oklahoma Corr. Prof’l Ass’n, Inc. v. Doerflinger, 468 F. App’x 916 (10th Cir. 2012), the
Court considered only Plaintiffs’ standing with regard to their claims challenging the numerosity
requirement, and not Plaintiffs’ claims challenging the exclusivity requirement.
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935, 942 (10th Cir. 2003). There are three “irreducible constitutional minimum”
requirements for standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
First, the plaintiff must have suffered an “injury in fact,” an invasion of a legally
protected interest that is concrete and particularized and actual or imminent, rather than
conjectural or hypothetical. Id. Second, the plaintiff’s injury must be “fairly traceable” to
the defendant’s conduct. Id. Third, it must be likely rather than merely speculative that
the injury will be redressed by a favorable decision of the Court. Id. at 561. Plaintiffs
have the burden of establishing all three elements. Id.
When OCP first applied for VPD in 2009, it was denied because it did not meet
the exclusivity requirement due to its membership levels including retirees, honorary
members, and associate members who were not state employees. Doc. No. 107, Attach.
10-13. OCP then limited its membership exclusively to state employees and was
approved for VPD. Doc. No. 107, Attach. 10-14. Plaintiffs ask the Court to “enjoin
restrictions on membership categories so that OCP can enjoy the same membership
categories as allowed to the other employee associations.” Doc. No. 93, at 24. Thus,
Plaintiffs’ alleged “injury” is being the only organization that is required to satisfy
exclusivity in order to qualify for VPD.
But if the Court were to strike down the exclusivity requirement as
unconstitutional, OCP would still not qualify for VPD because it does not satisfy the
numerosity requirement. There is also no evidence that if OCP were not required to be
exclusive that it would shortly gain enough members to reach 2,000. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 564 (1992) (“Such ‘some day’ intentions—without
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any description of concrete plans, or indeed even any specification of when the some day
will be—do not support a finding of the ‘actual or imminent’ injury that our cases
require.”). Accordingly, Plaintiffs lacks standing to challenge the exclusivity
requirement, and the Court dismisses Plaintiffs’ claims challenging this requirement.
Conclusion
In accordance with the foregoing, the Court finds that the numerosity requirement
of § 34.70 does not constitute viewpoint discrimination in violation of the First
Amendment, is rationally related to a legitimate government interest, and does not violate
the Equal Protection Clause of the Fourteenth Amendment. Further, Plaintiffs lack
standing to challenge the exclusivity requirement because their injuries are not
redressible by the Court.
Because the affidavits at issue in Defendant’s motion to strike [Doc. No. 109] and
Plaintiffs’ motion to supplement [Doc. No. 119] contain no evidence that would change
the Court’s conclusions on the motions for summary judgment, both are DENIED.
Defendant has shown that there is no genuine issue as to any material fact and that he is
entitled to judgment as a matter of law. Thus, Defendant’s Motion for Summary
Judgment [Doc. No. 105] is GRANTED on Plaintiffs’ claims challenging the numerosity
requirement and Plaintiffs’ motion for summary judgment [Doc. No. 106] is DENIED.
Finally, Plaintiffs’ claims challenging the exclusivity requirement are DISMISSED for
lack of subject matter jurisdiction.
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IT IS SO ORDERED this 3rd day of November, 2014.
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