Goldwater’s Next Steps in Protecting the Freedom of Association

September 6, 2019
By Timothy Sandefur

As part of our project challenging laws that force lawyers to join bar associations against their will, we’ve brought lawsuits in several states and filed petitions asking state courts to eliminate these rules. Last week, the Eighth Circuit Court of Appeals and the Arizona Supreme Court both turned away our efforts to protect individual rights—so we’re getting ready to take the next step.

The Eighth Circuit ruling is the latest stage in Fleck v. Wetch, our lawsuit challenging North Dakota’s compulsory bar association. Last year, after that court ruled against our constitutional arguments, the U.S. Supreme Court reversed their decision and ordered them to reconsider the question in light of the Janus decision, which held that states may not force government employees to join public sector unions, or to subsidize those unions out of their paychecks. Instead, the government must ask first.

We contend that the same principles apply to mandatory bar associations: The government can’t force people to join them, or to pay them annual dues. The Eighth Circuit, however, simply declared that “Janus does not alter our prior decision,” and that forcing attorneys to join a bar association is okay because “[t]hough membership is mandatory, it still involves a relatively comfortable relationship in which the member is encouraged to raise issues or seek information from his or her organization.” We believe that this does not resolve the constitutional concerns. The Supreme Court has certainly never held that the First Amendment allows the government to violate people’s freedom of association as long as it does so in a “relatively comfortable” way or lets people whose rights are violated “raise issues.” We’ll be petitioning the Supreme Court again—that petition is due in November.

Meanwhile, we also filed a petition with the Arizona Supreme Court asking it to change rules that force attorneys to join the Arizona Bar. The court denied that petition without comment, and we’ll be looking at our next steps in protecting the freedom of association in Arizona.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.