                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    June 29, 2012
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                                     TENTH CIRCUIT


 OKLAHOMA CORRECTIONS
 PROFESSIONAL ASSOCIATION,
 INC., a not for profit corporation;
 DAVID RAMSEY, individually;                            No. 11-6137
 GLEN COLEMAN,                                   (D.C. No. 5:10-CV-01369-R)
                                                        (W.D. Okla.)
          Plaintiffs - Appellants,

 v.

 PRESTON DOERFLINGER, Finance
 Secretary and Director, Oklahoma
 Department of Human Services,

          Defendant - Appellee.


                              ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges.


      Plaintiffs-Appellants sought declaratory and injunctive relief barring the

Defendant-Appellee from terminating the Oklahoma Corrections Professional

Association’s participation in the state’s voluntary payroll-deduction program.

Plaintiffs sought a declaration that Okla. Stat. tit. 62, § 34.70(B)(5), requiring a



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
minimum membership of 2,000 dues-paying members in order to participate in the

program, was unconstitutional under the First and Fourteenth amendments. They

also pressed a supplemental state law claim. The district court concluded that the

Plaintiffs lacked Article III standing because of a lack of redressability. Okla.

Corr. Prof’ls Ass’n v. Jackson, No. 5:10-cv-01369-R, Doc. 28, at 10 (W.D. Okla.

Apr. 19, 2011). It dismissed the federal claims and declined to exercise

jurisdiction over the supplemental state law claim. Id.

      The district court, assuming the provision’s unconstitutionality for purposes

of standing analysis, reasoned that it could strike § 34.70(B)(5) in its entirety, but

that this would eliminate the very program to which OCP seeks access. At the

same time, the court rejected severance under Okla. Stat. tit. 75, § 11a (the state’s

general severance statute), which provides that severance is not proper when the

court finds (as it did) that the legislature would have declined to enact the law

without the voided clause. To sever the numerosity requirement alone, the

district court concluded, would be to “rewrite” the law.

      On appeal, we certified two questions to the Oklahoma Supreme Court:

      (1) Is a court authorized by Okla Stat. tit. 75, § 11a to sever the numerosity

requirement in §34.70(B)(5) if found to conflict with freedom of speech?

      (2) If so, when a provision, as here, has been altered but not added anew,

does severance of the altered version restore the old, superseded one? The

Oklahoma Supreme Court reformulated the questions thus: “Whether the two

                                         -2-
thousand (2,000) membership numerosity requirement of 62 O.S.2011

§ 34.70(B)(5), if determined to conflict with constitutional guarantees of free

speech, may be severed pursuant to 75 O.S. 2011 § 11a?” The court answered

that it was in fact severable, and declined to answer the second question. In

response to the state’s argument that the legislature would not have enacted the

provision without the minimum-membership clause, the court noted that

numerous other payroll-deduction provisions in the Oklahoma code contain no

such requirements; that subsections (B)(5) and (6) appear unique in their specific

numerosity requirement; that §34.70 contains no legislative statement forbidding

severance; and that voiding this numerosity requirement would not affect the clear

intent of the statute at large. Oklahoma Corrections Professional Ass’n v.

Jackson, — P.3d —, 2012 WL 2107978, at *2-3 (Okla. 2012).

      In light of the Oklahoma Supreme Court’s resolution of the reformulated

question, we must vacate the district court’s judgment and remand for further

proceedings.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




                                        -3-
