US Supreme Court remands challenge to mandatory bar dues

The U.S. Supreme Court remanded a case Monday challenging mandatory bar membership, potentially calling into question laws in 37 states, including California, that require lawyers to pay bar dues to practice.

In June, the justices struck down a state law requiring public employees to pay fees to support a union. In a 5-4 decision in Janus v. AFSCME, the court said public employee unions charging nonmembers "agency fees" for representing them in collective bargaining is a violation of First Amendment rights. Justice Samuel Alito, who wrote the majority opinion, said agency fees force nonmembers to financially support positions they do not agree with. Janus v. AFSCME, 2018 DJDAR 6308.

North Dakota attorney Arthur Fleck argued mandatory bar fees should be ruled unconstitutional under a similar argument of compelled speech. Though his First Amendment claim was rejected by the 8th U.S. Circuit Court of Appeals last year, the U.S. Supreme Court vacated the judgment, ordering the appellate court to reconsider the case in light of their ruling in Janus. Fleck v. Wetch, 17-886.

The court previously upheld mandatory bar dues. A unanimous 1990 decision affirmed the constitutionality of mandatory dues when the funds are used to regulate the legal profession or improve the quality of legal services. Keller v. State Bar of California, 496 U.S. 1 (1990).

But Fleck, represented by Timothy Sandefur of the Goldwater Institute, argued Keller has been applied too loosely, leading to "egregious First Amendment violations."

Fleck argued in his petition for certiorari that bar associations' "opt-out" rules enabling lawyers to decline donating to the association's political activities violate the First Amendment as they initially presume consent to supporting the bar's causes. He also claimed it's possible to regulate the legal profession through less restrictive means than mandating bar membership, as exemplified by 19 states that don't require it.

The court didn't take up either issue, but it's possible the holding in Keller could be overturned in light of Janus. The unanimous opinion in Keller, written by Chief Justice William Rehnquist, depended on the principle that states could require public employees to pay union fees and drew "a substantial analogy" between the relationship of a bar and its members and that of a union and its members.

The respondents, represented by Randall Joseph Bakke of Bakke Grinolds & Wiederholt and Matthew Arnold Sagsveen of the North Dakota attorney general's office, asserted the court's recent holdings on union fees, including Janus, don't apply to mandatory bar membership.

In fact, during oral argument in Janus, Justice Ruth Bader Ginsburg asked the plaintiffs' lawyer if the rationale for public union fees differ from that of mandatory bar association fees. The attorney, William L. Messenger, said they are distinguishable because bar associations are justified by the state's interest in regulating the legal profession.

Employment lawyer Gina M. Roccanova of Meyers Nave Riback Silver & Wilson PLC said while unions and bar associations have very different nonpolitical functions, the court's main holding in Janus was that simply compelling payment to an organization that engages in political speech is forced association, and therefore suspect, which could potentially be extended to bar associations.

One key difference, however, between unions and bar associations is while public employees can work without joining a union, in the majority of states, lawyers cannot practice without joining and paying dues to the state bar association. The ensuing "headaches" of a ruling in favor of Fleck could be a deterrent, said employment lawyer Colin P. Calvert of Fisher & Phillips LLP. In Justice Elena Kagan's dissent in Janus, she spoke to this very issue, writing, "judicial disruption does not get any greater that what the Court does today."

"In my opinion, the mandatory bar fees at issue in Fleck simply aren't analogous to the union dues at issue in Janus. ... I think the potential for disruption in the legal profession (which the Court is a part of, unlike in Janus) minimizes the likelihood the Court will extend the Janus ruling to Fleck," Calvert wrote in an email.

Roccanova said potential solutions could include forcing bar associations to separate their regulatory and political functions into separate entities or require an opt-in standard for political activities, rather than the existing opt-out.

Fleck sued after finding out North Dakota's state bar was opposing a state ballot measure granting parents in a custody case equal parental rights, a measure he supported.

"Today's victory is a critical step in applying Janus protections. It's wrong to force people to subsidize political statements they disagree with -- lawyers no less than others. We look forward to presenting our case again to the Eighth Circuit -- and, if necessary, to the U.S. Supreme Court again," Sandefur said in a statement.

Bakke could not be reached for comment.