The U.S. Supreme Court’s decision in June striking down union “fair share” fees has energized a new attack on mandatory bar association dues.
Two Oregon lawyers filed a federal lawsuit that relies on the high court’s 5-4 ruling in Janus v. AFSCME to mount a First Amendment challenge to mandatory bar dues. In Janus, the conservative majority overruled 41-year-old precedent that upheld fees paid by nonunion members for their share of collective bargaining costs.
The justices already have one case—scheduled for the Sept. 24 conference—that presents a First Amendment challenge to North Dakota’s mandatory bar association dues. In the case Fleck v. Wetch, the Arizona-based Goldwater Institute urges the high court to overrule two decisions that form the foundation for the constitutionality of those fees—Lathrop v. Donohue (1961) and Keller v. State Bar of California (1990)—and to end the requirement that members opt out of payments for non-germane activities.
Georgia, like Oregon and North Dakota, is one of the 37 states where state bar membership is mandatory to practice law, according to the American Bar Association.
Ken Hodges, the current Georgia bar president, said, “While we are certainly aware of the challenges to the unified bar in other states, we are confident that the mandatory bar in Georgia serves an important role.”
“Not only do we regulate the practice of law and protect the public, we provide programming to lawyers which improves the practice of law,” Hodges added.
“Oregon is a mandatory bar like Georgia; however, other than that similarity, I understand the remaining issues are unique to Oregon,” said Hodges. “We are monitoring the issue and will continue to do so.”
In the Oregon lawsuit, Michael Spencer of Klamath Falls, counsel to attorneys Diane Gruber and Mark Runnels, contended the state bar engages in political and ideological activities with which his clients disagree.
“Plaintiffs object to being required to be a member of an organization as a condition of their being able to engage in their state regulated profession,” Spencer wrote in the lawsuit. “Other options exist, such as the licensing system utilized by the state of Oregon for all other professions regulated by the state of Oregon.” Those other options, he argued, are “significantly less restrictive” of First Amendment associational freedoms.
The Oregon lawyers, citing the Janus decision, are asking the U.S. District Court for the District of Oregon to issue an injunction prohibiting the collection of compulsory fees and to award damages for fees seized from them in violation of the First Amendment.
“When I looked into Janus and the theories behind it, I thought this could have an impact on the bar,” said Spencer. “The whole concept of an integrated bar is unconstitutional.”
Questions about the constitutionality of mandatory bar dues arose during February arguments in the Janus union case.
If the challenger to the union fees were correct about the First Amendment, Justice Ruth Bader Ginsburg asked his lawyer, William Messenger of the National Right to Work Legal Defense and Education Foundation, what about mandatory bar association payments?
Messenger said state bar association fees are justified by different interests. “The state bar associations are justified by the state’s compelling government interest in regulating the practice of law before its courts,” he said.
But the effect on bar dues of a ruling against the union fees did worry others at the time. Twenty-four past presidents of the District of Columbia Bar filed an amicus brief in Janus raising that concern.
“If this court were to overrule Abood [ v. Detroit Board of Education], it would very likely spawn additional time-consuming and expensive lawsuits by bar members who do not want to pay their bar dues,” wrote John Nields Jr. of Covington & Burling, counsel to the former bar presidents. “Such lawsuits would severely distract this country’s 32 integrated bars from their critical work serving the ‘state’s interest in regulating the legal profession and improving the quality of legal services.’”
The Goldwater Institute in its North Dakota petition told the high court that 19 states regulate attorneys without compelling bar association membership: Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New York, Ohio, Pennsylvania, Tennessee and Vermont.
North Dakota Bar officials, represented by Randall Bakke of Bakke Grinolds Wiederholt in Bismarck, in June urged the high court to reject the attempt to “yoke this case” to Janus, which was decided after briefs were filed in the North Dakota case.
“Nothing in this court’s recent public-union decisions calls into question its earlier cases upholding state laws requiring membership in and payment of dues to an integrated bar,” wrote Bakke. “In fact, the court recently went out of its way to distinguish integrated-bar cases from public-union cases.”
Bakke noted that the high court last year declined to hear a similar challenge to the Washington State Bar Association.
Jonathan Ringel of the Daily Report contributed to this version of this article, which first appeared in the National Law Journal.