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September 19, 2019

Recent Court Cases Question Rights of State Bars

Fleck v Wetch -- one of many challenges to mandatory state bars

Does requiring lawyers to join a state bar as a condition of licensure violate their First Amendment rights to freedom of speech and association? This question is increasingly under consideration by the courts, and recent decisions are noteworthy.

In Keller v. State Bar of California (1990), the Supreme Court said no, provided it is done correctly. State bars would not violate the First Amendment by requiring association membership and using the dues collected to fund activities germane to regulating the legal profession and improving legal services. The bars could not, however, use mandatory dues to fund activities of a political or ideological nature that fall outside those areas of activity.

For the past 30 years, state bars have scrutinized their educational programs, publications, and advocacy to ensure they comply with Keller. They have also established ways for members to opt out of paying dues for expenses unrelated to the profession or quality of legal services.

Unsatisfied by the holding in Keller, advocates continued to challenge mandatory bar membership and dues in various states, but to no avail. Then, in 2018, their efforts appeared to get a boost by the Supreme Court in Janus v. AFSCME. The Janus case did not involve mandatory state bar dues, but rather it involved the practice by public-sector unions of charging fees to workers who did not belong to the union. Such fees were to help the union to recover costs associated with their efforts to improve wages and working conditions for all workers, even those who were not members—a practice that was upheld by the Supreme Court in Abood v. Detroit Board of Education (1977). But in Janus, the Court overturned Abood, invalidating the union fee-charging practice. That outcome was of concern to state bars because Keller had relied in part on Abood.

So, did Janus overturn Keller, too?  The majority opinion in Janus did not address the question, although dissenting opinions distinguished unions from state bars. To address the issue, the Supreme Court granted a writ of certiorari in Fleck v. Wetch, a case challenging mandatory bar dues to the State Bar Association of North Dakota; summarily vacated the 8th Circuit’s ruling in favor of the bar; and in January of this year remanded the case to the 8th Circuit for reconsideration in light of the Janus decision.

On August 30, 2019, the 8th Circuit Court of Appeals issued its decision saying that Keller was still valid and therefore controlling, and ruling in favor of the State Bar Association of North Dakota. The 8th Circuit’s decision was not just significant for which side they came down on—the case was going to be appealed back to the Supreme Court no matter who prevailed. The opinion was noteworthy for the legal analysis the court used in affirming the status of Keller post-Janus. Mr. Fleck is expected to appeal.

Fleck v. Wetch is just the tip of the proverbial iceberg, as it is merely the first federal case to make it to the Supreme Court. Five additional suits involving different mandatory state bars (OK, OR, TX, WA, and WI) were filed in four separate federal circuits. Advocates against mandatory state bar membership and dues may hope that these cases result in split decisions among the circuits, which would allow them to select their strongest case for appeal to the Supreme Court. Unless those cases advance quickly, Keller's future may rest solely on Fleck, and if the 8th Circuit Court of Appeals was correct in affirming Keller, Fleck may be the only case the Supreme Court needs to decide. 

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