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July 22, 2022 Vol. 47, No. 6

The post-Janus world: A look at recent court challenges to mandatory bars

By Marilyn Cavicchia

In June 2018, the Supreme Court of the United States ruled in Janus v. AFSCME that unions could no longer collect mandatory “fair share” fees to cover the costs of collective bargaining, reversing a 40-year precedent.

Several attorneys and organizations took this ruling as a signal that it was a good time to bring new First and/or Fourth Amendment cases against mandatory bars or revive old challenges, in part because of the belief that Janus was relevant to mandatory bars and might overrule the precedent set by the court’s 1990 decision in Keller v. State Bar of California. In short, the Keller decision says that mandatory bars can use dues or membership fees to support political activities with which some members disagree, as long as those activities are “germane” to the bar’s purpose of regulating the profession or improving legal services.

Janet Welch, the recently retired executive director of the State Bar of Michigan and a close observer of challenges to mandatory or integrated bars, says proponents of the mandatory bar model rightfully have taken heart from the U.S. Supreme Court's denial of certiorari in the challenges to post-Janus district and federal court rulings. Those courts have said that only the U.S. Supreme Court can decide whether Janus abrogates Keller.

However, Welch notes, the 9th, 10th, and 5th circuits have “opened the door to an adverse decision to the integrated bar based on a freedom of association rather than freedom of speech claim.” Also, she says, some courts have spoken approvingly of the California model in which the mandatory bar retained only its regulatory functions and a new voluntary bar was formed to carry out all of the others. 

"Mandatory bars that do not continue to take seriously the need to focus their activities and statements on regulation of the legal profession and improvements in the quality of legal services risk adverse decisions in the future," Welch adds. 

Here is an overview of mandatory bar challenges since Janus, with a few observations from Welch where relevant.

(Note: This article will be updated as new developments occur; new information will appear in italics and parentheses at the end of the relevant section of the article.)

Eugster v. Washington State Bar Association

Attorney Stephen K. Eugster filed several lawsuits against the Washington State Bar Association. The first, in 2015, was dismissed. In 2018, after Janus, Eugster tried to amend a separate, subsequent complaint against the bar. The motion was denied, and the underlying complaint was ultimately dismissed. In 2020, the Court of Appeals of the State of Washington denied Eugster’s appeal of the superior court’s dismissal of his claims that the bar and its lawyers had defamed him. The court of appeals granted the WSBA’s cross-appeal, finding that the bar should be paid attorney fees because Eugster’s claims were frivolous.

Fleck v. Wetch

Attorney Arnold Fleck first brought his case in 2015, naming as defendants the president, other officers, and executive director of the State Bar of North Dakota, and the secretary-treasurer of the State Board of Law Examiners. The case was partially resolved via a settlement in which the bar agreed to revise its license fees statement. In 2017, the district court granted summary judgment in favor of the bar, and the 8th Circuit affirmed.

In its ruling, Welch notes, the 8th Circuit said that “Fleck had forfeited his freedom of association claim in the district court and on appeal; that the bar’s revised fee statement and procedures clearly do not force members to pay non-chargeable dues over their objection; and that nothing in the summary judgment record suggested that the bar’s revised fee statement is so confusing that it fails to give members adequate notice of their constitutional right to take the Keller deduction.”

In 2018, after Janus, the U.S. Supreme Court remanded the case to the 8th Circuit; in 2019, the appellate court once again affirmed the district court’s ruling. In 2020, the U.S. Supreme Court denied a writ of certiorari.

Jarchow v. State Bar of Wisconsin and File v. Martin

Attorneys Adam Jarchow and Michael D. Dean first filed a complaint in 2019, naming as defendants the State Bar of Wisconsin and members of its board of governors. The case was stayed pending the outcome of Fleck v. Wetch and was then dismissed, citing Keller. The plaintiffs appealed, but the U.S. Court of Appeals for the 7th Circuit summarily affirmed the decision by the U.S. District Court for the Western District of Wisconsin. On the last day of 2019, the plaintiffs petitioned the U.S. Supreme Court to hear their case. In 2020, the U.S. Supreme Court declined certiorari, with Justices Clarence Thomas and Neil Gorsuch dissenting. In a written opinion, Thomas noted that the court’s decision in Janus had set aside Abood v. Detroit Board of Education, which was foundational for Keller. “Now that Abood is no longer good law,” he wrote, “there is effectively nothing left supporting our decision in Keller.”

Also in 2019, in the U.S. District Court for the Eastern District of Wisconsin, Attorney Schuyler File sued the president and executive director of the state bar and members of the Wisconsin Supreme Court in their official capacities. That same year, in separate motions, the defendants from the state supreme court and from the bar asked for the case to be dismissed; in 2020, these motions were granted for failure to state a claim. The plaintiff appealed to the 7th Circuit; in April 2022, this court affirmed the district court’s ruling.

Boudreaux v. Louisiana State Bar

Attorney Randy Boudreaux filed suit in 2019 in the U.S. District Court for the Eastern District of Louisiana against the Louisiana State Bar Association, the Louisiana Supreme Court, and the justices of the state supreme court. In January 2020, the district court granted the defendants’ motion to dismiss for lack of jurisdiction and failure to state a claim. The following month, the plaintiff appealed to the 5th Circuit; in July 2021, that court reversed the district court’s ruling and remanded the case to the lower court.

Welch notes that the 5th Circuit panel “reversed on the grounds that Boudreaux had successfully pleaded an injury in fact by alleging that the LSBA does not regularly provide notice of its expenditures with sufficient specificity.” In remanding, Welch adds, the 5th Circuit asked the lower court to consider whether the LSBA’s political and legislative activity is beyond what is constitutionally allowed under Lathrop or would be considered “germane” under Keller.

(Update: On August 8, 2022, the lower court dismissed this lawsuit, ruling that the activities to which Boudreaux objected were germane and also that they were not a "'major activity" of the bar such that they could give rise to a constitutional violation. The court also found that the plaintiff's challenges to previous LSBA legislative activities were moot because of subsequent passage of a section of a state Supreme Court rule and measures taken by the bar to ensure compliance with existing precedent. Finally, the court ruled that the LSBA's procedures are sufficient to give members notice of its activities and an opportunity to object. For more information, please see the LSBA website and Bloomberg Law.)

Gruber v. Oregon State Bar and Crowe v. Oregon State Bar

Both cases were filed in the U.S. District Court for the District of Oregon in 2018 after the Janus decision. In Gruber, the plaintiffs are attorneys Diane Gruber and Mark Runnels, and the defendants are the Oregon State Bar, its chief executive officer, and its president at the time the case was filed. In Crowe, the plaintiffs are attorneys Daniel Crowe and Lawrence Peterson, and Oregon Civil Liberties Attorneys. The defendants are the bar; its board; its president and president-elect; and its CEO, director of finance and operations, and general counsel.

Both cases were dismissed in 2019 and then appealed to the 9th Circuit. In both cases, in 2021, the 9th Circuit affirmed the lower court’s dismissal of the plaintiffs’ free speech claim and the adequacy of the bar’s procedural safeguards to protect free speech rights but reversed the dismissal of the freedom of association claim, remanding the case to the district court. “The court remanded for a determination of whether Janus provides the appropriate standard for the free association claim,” Welch explains, “and, if so, whether the bar can satisfy exacting scrutiny.” Also in 2021, plaintiffs petitioned the U.S. Supreme Court to hear each case, but the court declined both.

Taylor v. Heath

In this case from 2019, the plaintiff, attorney Lucille S. Taylor conceded that State Bar of Michigan had complied with Keller but asked the U.S. District Court for the Western District of Michigan to revisit Keller in light of Janus. The defendants in this case were members of the bar’s board of commissioners. In 2020, the court granted the defendants’ motion for summary judgment and entered a judgment in their favor. Judge Robert Jonker wrote that his court had no power to revisit Keller, and that if any “wading” into the issues needed to be done, it would have to occur in a higher court. Taylor appealed, and in July 2021, the 6th Circuit affirmed the district court’s decision, based on similar reasoning. Taylor petitioned the U.S. Supreme Court, but in April 2022, the court declined to hear her case.

Schell v. Oklahoma Supreme Court Justices

Attorney Mark Schell filed this case in 2019 in the U.S. District Court for the Western District of Oklahoma; the defendants are the chief justice and justices of the Oklahoma Supreme Court, the board of governors of the Oklahoma Bar Association, and the bar’s executive director. The court dismissed the first two parts of the plaintiff’s amended complaint—regarding compulsory membership and subsidization of political and ideological speech, respectively—but not the third, which was that the bar did not have adequate safeguards to ensure that mandatory dues were not used for impermissible purposes. The bar instituted new safeguards, and in 2020, the third claim was dismissed as moot.

In June 2021, the 10th Circuit affirmed the district court’s decision in part and reversed it in part, remanding the case to the district court so the plaintiff can conduct discovery on his freedom of association claim. In August 2021, the three-judge panel withdrew its original opinion and replaced it with a revision that partially granted Schell's request for a panel rehearing and denied his request for an en banc rehearing. Schell petitioned the U.S. Supreme Court, which in April 2022 declined to hear this case.

McDonald v. Firth

When they filed this case in 2019, plaintiffs Tony McDonald, Joshua Hammer, and Mark Pulliam cited not only Janus, but also Knox v. Service Employees International Union from 2012, arguing that if membership in the State Bar of Texas remained mandatory, then the system for attorneys to opt out of subsidizing political and ideological activities should instead be an opt-in system. The defendants in McDonald are, in their official capacities, the members of the bar’s board of directors.

The defendants filed a motion to dismiss and a cross-motion for summary judgment because the requirement to join the bar was established not by the board of directors but by Texas Government Code. The plaintiffs filed an amended complaint; the U.S. District Court for the Western District of Texas denied the motion to dismiss but, in 2020, granted the motion for summary judgment. The plaintiffs appealed, and in July 2021, the 5th Circuit overturned the district court’s ruling and remanded the case to the lower court. The plaintiffs also petitioned the U.S. Supreme Court, which in April 2022 declined to hear the case.

Welch notes the following about the 5th Circuit’s decision:

  • The panel did not agree with the plaintiffs that any political or ideological activity of the bar is necessarily non-germane.
  • However, they found some of the bar’s legislative activities, including section lobbying funded primarily by section dues, to be non-germane.
  • The bar’s funding of the Texas Access to Justice Commission was also found to be non-germane.
  • The bar’s CLE and annual meeting programming, diversity initiatives, the bar journal, and the majority of its access to justice initiatives were considered germane.
  • The bar’s procedures were not deemed sufficient to allow members to challenge activities they believe to be non-germane.

The decision gave the bar the option to stop engaging in non-germane activities. It also said the bar cannot continue mandating membership while maintaining its current structure and engaging in all of its current activities. The 5th Circuit remanded to determine the full scope of relief to which plaintiffs are entitled, and it also issued a preliminary injunction preventing the bar from requiring the plaintiffs to join or pay dues pending completion of the remedies phase. The bar decided not to pursue an en banc rehearing.

Pomeroy v. Utah State Bar

In this case, filed in April 2021 in the U.S District Court for the District of Utah, attorney Amy Pomeroy, like some others in similar cases, claimed that the Utah State Bar’s mandatory membership and fees were unconstitutional and that the bar had inadequate safeguards in place to protect attorneys’ First Amendment rights. One difference between this and other cases is that in Utah, attorneys must also join the Utah Bar Foundation, a requirement that Pomeroy argued is also unconstitutional.  

In April 2022, the court dismissed claims against the bar because of immunity under the Eleventh Amendment, as “an arm of the state.” Many news outlets saw this as an unalloyed win for the bar, but Welch says there’s more to it than that: In addition to the bar itself, Pomeroy—as other plaintiffs have done in similar cases—also named various bar officials and staff members as defendants. The court did not dismiss the claims against these individual defendants.

“The court found that Pomeroy had sufficiently alleged defendants had engaged in non-germane activities likely to continue, specifically the publication of certain bar journal articles and advocacy for specific legislation,” Welch notes. “Therefore, the court decided, Pomeroy sufficiently stated a claim for violation of her freedom of speech and freedom of association rights based on mandatory membership.”

Want to learn more?

There’s more to these cases than could be covered in this quick summary; the italicized name of each case links to an article or other resource. Moving forward, there are sure to be developments in the cases that have been remanded—and it seems likely that there will also be some new cases challenging mandatory bars.

To keep up with these developments, make sure to subscribe to Bar Leader Weekly, a free e-newsletter from the ABA Division for Bar Services that offers recaps of bar-related news with links to complete articles. Bar Leader Weekly has reported on most of the cases mentioned above and will continue to track and share new developments.

Also, the 2022 Annual Meeting of the National Conference of Bar Presidents in Chicago will include a breakout focused on mandatory bars on Friday, August 5. Among the speakers will be Welch, who will share further insights and developments in many of the cases covered here.

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