On Friday, the Eighth Circuit’s three-judge appellate panel ruled that the mandatory dues collected by the State Bar Association of North Dakota (SBAND) do not violate the First Amendment. Attorneys in the state of North Dakota pay dues to what’s called an “integrated bar.”
The SBAND Dual Status
The State Bar Association of North Dakota, or SBAND, is both the official regulatory body for the legal industry in the state, administering the licensing and discipline of lawyers who work in the state, and an advocacy group for the legal industry. As you can imagine, this becomes problematic, because like any group of people, lawyers have diverse viewpoints when it comes to politics and public policy.
SBAND’s dual status first became an issue back in the 2014 election cycle when it spent a significant amount of money opposing a ballot measure aimed at reforming state custody laws. Many lawyers objected, arguing that the fees they’re required to pay to operate as lawyers in the state were being used in pursuit of political positions they didn’t support.
That’s where North Dakota attorney, Arnold Fleck became involved, filing his lawsuit and watching it ultimately dismissed by the 8th Circuit Court of Appeals in 2017.
The JANUS Case
After his case’s dismissal by the 8th Circuit Court of Appeals, Fleck appealed to the U.S. Supreme Court (SCOTUS) which vacated the 8th Circuit’s ruling and remanded the case for reconsideration under the brand new Janus v. American Federation of State, County and Municipal Employees precedent.
Janus requires organizations like SBAND to only collect fees for non-regulatory activities if members gave consent before an attempt to collect, Fleck argued. By forcing attorneys to opt out instead of opting into the optional fees, SBAND was violating members First Amendment rights and making it all too easy for them to waive those rights by accident.
The Supreme Court found that particular situation to be unconstitutional.
Addressing SBAND, Fleck argued that the state’s mandatory bar dues were unconstitutional under Janus. While Fleck lost his case at the 8th Circuit back in 2017, he was able to convince the high court to revive it, with the court ruling that the 8th Circuit should rehear the case in light of Janus.
Fleck’s argument here is the same—that mandatory bar association dues are no different, believing them to be in violation of the First Amendment because they are “confusing” and “traps for the unwary.”
“To force all attorneys in the state to join and pay dues, the bar association had to show it was regulating the practice of law in a way that posed the fewest possible restrictions on lawyers’ free speech rights while still allowing the association to accomplish its mission,” Fleck said back in his reply brief in April. However, North Dakota’s Bar has not met that requirement, according to Fleck.
“The member’s right to pay or refuse to pay dues to subsidize non-chargeable expenses is clearly explained on the fee statement and accompanying instructions, in advance of the member consenting to pay by delivering a check to SBAND,” the opinion reads. “Doing nothing may violate a member’s obligations to pay dues, but it does not result in the member paying dues that he or she had not affirmatively consented to pay.”
The panel looked back to SCOTUS precedent, “concluding that the record is inadequate as the result of Fleck forfeiting the issue in the district court and on appeal,” the opinion reads. “Accordingly, we decline to invoke our discretion to take up this claim for the first time on remand.”
Does Michigan Agree?
Just last month, attorney Lucille Taylor, of Laingsburg, who was chief legal counsel to then-Gov. John Engler and later a special assistant attorney general, filed a lawsuit in federal court claiming that the State Bar of Michigan’s membership requirement violates hers and other attorneys’ constitutional rights to free speech and free association. With more than 40,000 members, Michigan’s bar requires $315 a year for most attorneys.
It is most certain that Fleck and his counsel, Timothy Sandefur of the Goldwater Institute, will be returning to the Supreme Court to ask it to take this case and uphold the First Amendment right of attorneys not to be forced to join bar associations against their will.
The question remains to how many other states will follow North Dakota and Ms. Taylor, believing the U.S. Supreme Court decision, Keller v. State Bar of Michigan, which upheld mandatory bar dues, to be unconstitutional.
Could Keller also be overruled just as the 1977 decision, Abood v. Detroit Board of Education?
Will the SCOTUS take this case and follow the rationale of Janus?
Editor’s Note: This article was originally published on September 9, 2019.