Mandatory bar dues are under attack in at least three court challenges that rely on the recent U.S. Supreme Court decision striking down the requirement that nonunion public sector employees pay their “fair share” costs for collective bargaining.
The Supreme Court’s ruling in Janus v. AFSCME revived one challenge and inspired others that confront whether state bar groups can require lawyers to pay annual fees. The justices in December remanded the case Fleck v. Wetch to the U.S. Court of Appeals for the Eighth Circuit, a challenge to the mandatory fees that attorneys pay to the state bar of North Dakota.
“You should expect to see similar lawsuits in more states in the near future,” said Jacob Huebert of the Goldwater Institute in Arizona, which is at the forefront of two of the pending cases.
Two separate challenges have been filed in the U.S. District Court for the District of Oregon. The Janus ruling also has triggered concerns among other state bars about its effect on their operations. Central to the cases are First Amendment speech and association questions.
Last month in Texas, Joe Longley, president of the state bar, requested an opinion from Texas Attorney General Ken Paxton on whether the bar “may legally and constitutionally collect compulsory dies from Bar members under Janus and Fleck.” In September, Washington Supreme Court Chief Justice Mary Fairhurst directed the state bar’s board of governors to delay action on proposed bylaws until a comprehensive review was done of the bar’s structure in light of Janus.
The 5-4 Janus decision overruled a decades-old precedent, Abood v. Detroit Board of Education, in which a unanimous high court had found no First Amendment violation in requiring nonunion members to pay their “fair share” of the costs of collective bargaining by public sector unions. The Janus ruling also held that no fees could be collected without the affirmative consent of nonunion members, in effect, invalidating union opt-out procedures.
The justices in Janus did not question Lathrop v. Donohue (1961) or Keller v. State Bar of California (1990), two rulings that upheld integrated bars and mandatory dues. “The Keller opinion applied Abood, notwithstanding the fact that, unlike the government employees in Abood, the bar association involved private-sector employees,” according to a congressional research service report.
In the case Wetch v. Fleck, pending in Eighth Circuit court, the Goldwater Institute’s Timothy Sandefur and Huebert, representing Arthur Fleck, argue that under Janus, mandatory membership in the North Dakota Bar Association and its dues procedures violate the First Amendment association and speech rights of attorneys in the state.
The appeals court earlier affirmed the district court’s dismissal of Fleck’s speech and association claims as barred by the Supreme Court’s Keller decision. The panel also held that the state bar’s revised license fees procedures complied with Keller and later Supreme Court rulings.
Now, the Eighth Circuit has ordered briefing on the effect of Janus and has scheduled oral arguments for June 13 in St. Paul, Minnesota. Randall Bakke of Bismarck’s Bakke Grinolds Wiederholt Attorneys at Law represents the state bar.
“Our situation is very different from a union,” Bakke said. “The mandatory bar in North Dakota is an effective way to regulate the profession and protect the public. We hope the Eighth Circuit will find Keller and Lathrop are directly on point on the issue of bar membership and compelled funding of the core functions of the bar.”
In the Oregon case Gruber v. Oregon State Bar, lawyers Diane Gruber and Mark Runnels, represented by Michael Spencer of Klamath Falls, contend mandatory bar membership and dues violate their First Amendment speech and association rights.
“The question here is whether the means by which the State of Oregon has chosen, compulsory membership and compelled subsidization, could be achieved ‘through means significantly less restrictive of associational freedoms,’” Spencer wrote in his summary judgment motion.
The Oregon Attorney General, in an amicus brief, and counsel for the state bar, Steven Wilker of Tonkon Torp, contend the challengers are asking the court to “dramatically extend” the reach of Janus. The Supreme Court’s decision “does not overrule Keller, and does not provide a basis for this court to depart from its binding precedent,” Attorney General Ellen Rosenblum said in the brief.
READ: Oregon attorney general defends bar membership and fees
The fact that the Supreme Court “concluded that Illinois’ state interests are not sufficient to justify ‘agency fees’ in the public employee union context does not mean that the Supreme Court has—or would—reach a similar conclusion with respect to integrated bars,” Rosenblum wrote. “Indeed, the Supreme Court itself has rejected that proposition.”
The challengers’ arguments boil down to a request that the district court recognize an implied overruling of Keller, Wilker wrote.
The Goldwater Institute’s Jacob Huebert and Adi Dynar represent attorneys Daniel Crowe and Lawrence Peterson, and the Oregon Civil Liberties Attorneys, in their suit against the Oregon State Bar and Oregon State Bar officials.
The Crowe and Gruber lawsuits are before the same magistrate judge, and oral arguments are scheduled for March 13.
The Goldwater Institute may file other challenges in one or more states “in the near future,” said Huebert. He said he is hopeful the “Supreme Court will declare that states can’t make attorneys join or pay fees to a bar association.”