Justice Samuel Alito Jr. (Photo: Diego M. Radzinschi / ALM)

A North Dakota lawyer who lost a First Amendment challenge to mandatory bar membership won another opportunity Monday to make his case when the U.S. Supreme Court sent his challenge back to the lower court for additional consideration.

In Fleck v. Wetch, the justices granted the petition of Arthur Fleck and vacated the judgment of the U.S. Court of Appeals for the Eighth Circuit. The high court directed the appellate court to reconsider its decision in light of the justices’ ruling last term in Janus v. AFSCME.

The 5-4 decision in Janus, written by Justice Samuel Alito Jr., struck down so-called fair share fees paid by nonunion members to public employee unions representing them in the collective bargaining process. The ruling also rejected the opt-out approach to the requirement for paying the fees.

The Eighth Circuit summarily disposed of Fleck’s First Amendment claim that his rights were violated by mandatory bar membership and dues, and the appellate court affirmed the district court’s grant of summary judgment against Fleck on his opt-out arguments.

Fleck, represented by Timothy Sandefur of the Goldwater Institute in Phoenix, mounted a two-pronged First Amendment attack on the mandatory bar requirement.

In his petition, Fleck argued that it is “possible to regulate the practice of law and protect the public ‘through means significantly less restrictive of associational freedoms’ than mandatory bar association membership. Nineteen states, he says, regulate attorneys without compelling bar membership.

He also attacked opt-out rules that put the burden on attorneys to deduct from their fees that portion supporting political or nongermane activities. Those rules, Fleck argued, “nudge” attorneys into acquiescence and put them at odds with the bar associations that regulate their practice of law.

Opposing Fleck’s petition in the high court, Randall Bakke of Bakke Grinolds & Wiederholt in Bismarck, North Dakota, and Matthew Sagsveen of the North Dakota Attorney General’s Office relied on “long-standing precedent” upholding the constitutionality of mandatory bar associations. Nothing in the justices’ recent union fee decisions, they argued, calls into question mandatory bar membership and payment of dues for germane expenses.


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