November 21, 2019
By Timothy Sandefur
We filed a petition with the U.S. Supreme Court today asking it to decide whether it’s constitutional for states for force lawyers to join bar associations. Bar associations are not to be confused with the bar exam, which is the test lawyers must pass to get a license. Instead, bar associations are trade associations—clubs—that lawyers in some 30 states are forced to join in order to practice their trade.
Government doesn’t force doctors to join the American Medical Association, or force plumbers to join the Plumbing-Heating-Cooling Contractors Association. But states often force lawyers to join bar associations that lobby the government and engage in political speech with which lawyers themselves might disagree. And they do it all with money taken from lawyers in the form of mandatory annual dues. We argue that this violates attorneys’ First Amendment rights.
The plaintiff in this lawsuit is Arnold Fleck, a North Dakota attorney who supported the passage of a ballot initiative relating to family law (he practices family law)—only to find out that the State Bar Association of North Dakota, which he’s forced to be a member of, was spending money on the “no” campaign. That money, of course, was taken from Fleck’s own annual dues.
We sued on his behalf, and the Association changed some of its rules—but it still requires Fleck and all other North Dakota lawyers to be members, and it still spends money on political activities. What’s more, it sends lawyers an annual dues bill that’s designed so as to presume that a lawyer is willing to fund the Association’s political activities unless the attorney takes steps to say no. And that’s unconstitutional, too, under last year’s decision in Janus v. AFSCME, which held that states must get “affirmative consent,” and must do so before they take money for a private organization’s spending on political activities. Although the Janus decision involved labor unions rather than bar associations, the same principles should apply, especially given that the Supreme Court has already said in the 1990 case of Keller v. State Bar of California that unions and bar associations should be considered the same for First Amendment purposes.
The Supreme Court has already taken Fleck’s case up once: Last year, it ordered the Eighth Circuit Court of Appeals to reconsider its previous ruling against him in light of the decision in Janus. But the Eighth Circuit replied that it believes Janus changed nothing, and that there’s no reason the government can’t force lawyers to join a bar association. The Keller case, it said, upheld mandatory bar associations, and Janus’s rules don’t apply to bar associations and attorneys.
That’s wrong. First, the Keller case didn’t actually decide the question of mandatory membership, and even if it did, that case would be obsolete after Janus and should be overruled. Second, the North Dakota Bar Association is violating Janus’s requirements by presuming that lawyers are willing to fund its political activities and forcing them to undertake the burden of objecting and withdrawing their presumptive consent. The Janus ruling forbids the government from presuming consent in that way.
We’re hopeful the U.S. Supreme Court will take this case up a second time and decide whether the First Amendment protections announced in Janus apply to attorneys just as much as to the public sector employees involved in the Janus. Forcing people to join an organization against their will, or to subsidize political speech they disagree with, is wrong—and unconstitutional.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.