June 6, 2019
By Timothy Sandefur
The U.S. Supreme
Court’s decision last year in Janus v. AFSCME—striking down laws that force
government employees to pay annual fees to support public-sector unions—has set
the stage for a round of lawsuits challenging the constitutionality of laws
that force attorneys to join and to subsidize bar associations. Just like the
law at issue in Janus, these
mandatory bar association rules force lawyers to become members of, and to send
hundreds of dollars a year to, organizations that often take political
positions that their own members disagree with. That’s a violation of the First
Amendment—and it’s politically important, too, given the strong influence that
bar associations have in state and federal legislatures. The U.S. Supreme Court
indicated its interest in that argument last year,
when it reversed a federal appeals court that had ruled against us in our case
on behalf of North Dakota attorney Arnold Fleck. The Justices ordered the court
to reconsider the case in light of the Janus
decision—and we’ll be arguing that case next Thursday in St. Paul.
Since the Supreme Court’s order, we’ve filed lawsuits in Oregon and Oklahoma challenging the constitutionality of their mandatory bar associations, and in other states, including Arizona, we’ve filed petitions asking that mandatory bars be made voluntary. If lawyers want to join these associations, that’s fine, but forcing them to do so is unconstitutional and wrong. As we put it in our filing with the Arizona Supreme Court:
Even aside from the question of legal precedent, the voluntary route is best. It is both wrong and unwise to force people to join an association against their will. First, it is wrong because it inflicts an injustice on a person to force that person to become a member of an organization that the person does not wish to join. Freedom of association is a right distinct and separate from freedom of speech, though often related to it…. Freedom of association is best understood as “associational autonomy,” a right that is “neither expressive nor intimate, but one largely of privacy.” People who simply wish to have nothing to do with the activities of an association have that right, even aside from concerns about speech.
The voluntary
model isn’t anything new or radical. Twenty states, including New York and
California (which have the largest populations of lawyers in the country)
already have voluntary bar associations. They regulate lawyers the same way
they regulate doctors—by enforcing laws that protect people, but not compelling
doctors to join an organization and pay it annual dues. There’s no reason to
think other states can’t do the same.
Next Thursday,
we’ll be arguing Arnold Fleck’s case once more. We contend that the Janus case makes two important points: Not
only is it unconstitutional to compel people to join unions or similar
organizations against their will, but it’s also illegal for the government to
presume that people are willing to subsidize such an organization, and force
them to “opt out” if they aren’t. Instead, people should be presumed not to support an organization, unless
they say so.
That rule is just
common sense. It would be wrong to take someone’s money, and then claim that
you hadn’t harmed them because you gave them an opportunity to get it back. And
it’s more than common sense—it’s constitutional law. The Supreme Court has long
said, “we do not presume
acquiescence in the loss of fundamental rights.” Assuming people are okay with
supporting a union or a bar association unless they actively “opt out” violates
that rule. That’s why Janus said that
public-sector unions can’t take money from people unless those people “clearly
and affirmatively consent before any money is taken from them.”
But the North
Dakota bar association, and others, violates this rule not only by forcing
people to join the association, but also by sending them an annual dues bill
that lists the total amount they must pay, including the amount spent on
political activities—and then in fine print, telling people they can deduct a
small amount if they want to “opt out” of subsidizing the bar’s lobbying. That
unfair billing practice violates the Janus
rule because it doesn’t ensure that lawyers “clearly and affirmative consent
before” they’re required to pay—and because it presumes lawyers are willing to
support the union unless they take action to “opt out.”
You can learn more
about our work in support of freedom of speech and freedom of association—in North Dakota, Arizona, Texas, Oregon, Oklahoma, and elsewhere—here.
Timothy Sandefur
is the Vice President for Litigation at the Goldwater Institute.
