by Timothy Sandefur
February 18, 2019
We filed our
opening brief
Friday in our challenge to the constitutionality of North Dakota’s rule that
requires attorneys to join the state bar association as a condition of
practicing law. It’s actually our first brief after the U.S. Supreme Court
ordered the Eighth Circuit Court of Appeals to reconsider its previous decision
in light of the Janus ruling.
We represent
Arnold Fleck, a North Dakota lawyer who discovered that the state bar he’s
forced to be a member of spent bar dues he’s forced to pay to subsidize a
campaign against a ballot initiative that Fleck himself supported. In other
words, state law was forcing him to join and to fund an organization that was
publicly opposed to the political views he himself holds. He argued that this
violated the First Amendment, which forbids the government from compelling
people to join political organizations—and bars the government from forcing
people to subsidize political campaigns.
The Eighth Circuit
ruled
against Fleck, upholding both the mandatory membership requirement and the
state bar’s billing practices—which allow members to deduct and withhold the
portion of their annual dues that goes to the state bar’s political activities.
But months ago, the U.S. Supreme Court reversed that decision and ordered the
court to reconsider, given its recent ruling in Janus v.
AFSCME. That decision not only reaffirmed existing rules against
forcing people to join unions against their will, but also made clear that
under the First Amendment, the government can’t compel workers to subsidize
unions unless the workers “clearly and affirmatively consent before any money
is taken from them.”
We argue that if
that’s the rule, it must also be true of bar associations: The government can’t
force a lawyer to join them or to subsidize them unless the lawyer clearly and
affirmatively consent beforehand. Yes, the state can regulate the legal
profession—it can impose a bar exam, and it can punish lawyers who do bad
things—but it can do that without forcing lawyers to join a bar association.
And it can’t presume that lawyers are willing to subsidize that association
without getting the lawyers’ clear and affirmative consent beforehand.
That, however,
isn’t what the North Dakota bar does. First, it forces lawyers to join, and
then it sends them an annual bill that’s carefully designed to nudge lawyers
into subsidizing the bar’s non-regulatory functions. The bill states a total
that lawyers must pay—and then allows them to add certain “optional”
expenses—and then later requires them to deduct
the political expenditures as “optional,” too. By requiring them to add some
optional expenses and deduct others, the bill is fashioned in a way that likely
misleads many people into paying the political expenditures part of the bill—a
highly misleading mechanism that violates the requirement for “clear” and
“affirmative” consent.
In our
brief to the Eighth Circuit, we argue that Janus makes clear why both the billing rules and the membership
requirement violate the First Amendment: Being required to join an
organization—whether a labor union or a bar association—violates freedom of
association, and being required, or pressured, or fooled, into subsidizing that
organization’s political activities isn’t the clear, affirmative, and prior
consent that Janus requires.
The Fleck case matters not only because it
involves the First Amendment rights of people like Arnold Fleck. It’s important
because the organized bar exerts an extraordinary political influence in our society,
at both the state and federal levels, much like government unions do. Yet, as
with government unions, these mandatory bars don’t necessarily represent the
actual views of the lawyers they claim to speak for. Because they can force
lawyers to join, and then spend their annual dues in ways the lawyers
themselves might not agree with, these organizations can distort the democratic
process as well as violating the rights of attorneys.
You can learn more about the Fleck case here.
Timothy Sandefur
is the Vice President of Litigation at the Goldwater Institute.
