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Goldwater Institute Sues North Dakota Bar Association for Violating First Amendment Rights of Local Attorneys

February 3, 2015

Bismarck—Today the Goldwater Institute sued officials at the State Bar Association of North Dakota for violating the First Amendment rights of Bismarck attorney Arnold Fleck by failing to follow U.S. Supreme Court-required safeguards on using member dues for political purposes.

In 2014 the Bar Association gave $50,000 to a political committee organized to defeat Measure 6, the North Dakota Parental Rights Initiative. In doing so, it violated U.S. Supreme Court-mandated safeguards that govern how bar associations are allowed to use mandatory member dues to engage in political activity. Because the Bar Association didn’t follow the proper procedures, money that attorneys are required to pay to the Bar in order to practice law in North Dakota was spent to defeat Measure 6 without members’ knowledge or permission. This put Mr. Fleck, who supported Measure 6, in the position of having his own money spent to further a political point of view with which he disagreed. The U.S. Supreme Court has repeatedly ruled that is illegal.

To practice law in North Dakota, an attorney is required to become a member of the State Bar Association—a special interest group tasked with regulating the practice of law. The United States Supreme Court has acknowledged that requiring attorneys to join a bar association has a negative impact on First Amendment rights. So the Court requires mandatory bar associations to institute “Keller” safeguards that limit the use of member dues only to purposes related to the regulation of lawyers.

But the State Bar Association of North Dakota hasn’t listened to the Supreme Court. In 2014, the State Bar spent member dues to oppose Measure 6 in the November election, despite the measure lacking any connection to regulating the practice of law. The Bar contributed $50,000.00 to a PAC opposing the measure. But, the Bar’s support did not stop there. Tony Weiler, the executive director of the Bar, served as a leader of the PAC. The Bar also provided the PAC with an email address and other infrastructure.

This was not an isolated incident. The Bar Association spent $30,000.00 to oppose a similar ballot measure in 2006 and has engaged in lobbying on a number of different bills before the North Dakota Legislature that are not relevant to the practice of law—all without having the required safeguards in place.

The Goldwater Institute is asking a federal court to hold the Bar Association accountable for its illegal actions and to require it to put the proper steps in place to prevent this from happening again.

When mandatory member dues are used for political purposes, a bar association is required to provide advanced notice to members, including an explanation of how much they will spend; allow members to opt-in to having their dues money spent on political purposes; offer a reasonably prompt decision by an impartial decision maker if a member objects to how his dues are spent; and set aside the dues that are in dispute.

The State Bar Association of North Dakota doesn’t have procedures in place that meet any of these requirements. In fact, after performing a survey on the constitutionally-required Keller procedures of each mandatory bar association, Texas law professor Ralph Brock found the Bar’s procedures to be “deficient in almost every respect.”

Mr. Fleck was given no notice, nor the opportunity to opt-in to having his dues money used to further a political message he opposed. Because of this, he has been forced to fund a political opinion he opposes, in violation of his First Amendment rights.

In addition to challenging the Bar’s illegal use of mandatory member dues on politics, the Goldwater Institute is also challenging the requirement that all attorneys must join the Bar Association in order to practice law in North Dakota. In 18 states, attorneys are not forced join a bar association in order to practice law, including: Colorado, Illinois, Indiana, Iowa, Massachusetts, Minnesota, New Jersey, New York, Ohio, and Pennsylvania. Attorneys practicing in those states are still subject to regulation, must be licensed to practice, and must adhere to ethical standards. But because these states do not mandate bar association membership, attorneys’ First Amendment rights are not infringed as a prerequisite to practicing their profession.

“No one, even attorneys, should be forced to pay for a political message they oppose or join a group with which they disagree in order to earn a living,” said Jared Blanchard, an attorney at the Goldwater Institute who is representing Mr. Fleck.

The Goldwater Institute filed this case, Fleck v. McDonald, in federal district court in Bismarck. Click here to read more about Fleck v. McDonald.

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