October 16, 2019
By Jacob Huebert and Kileen Lindgren
An attorney
in Michigan has had enough. For 48 years, Lucille Taylor has been forced to be
a dues-paying member of her state’s bar association in order to practice her
profession, and that organization has spoken on her behalf against her will.
That’s a violation of Taylor’s First Amendment rights, and she’s just one
example of Americans who are taking a stand.
With the
help of the Mackinac Center Legal Foundation, Taylor has filed a lawsuit challenging
Michigan’s mandatory bar association. And with good reason: The State Bar of
Michigan uses members’ mandatory dues to engage in political advocacy,
including supporting legislation on issues that aren’t even related to the
Bar’s supposed purpose of regulating the practice of law.
The First
Amendment guarantees our freedoms of speech and association, which allow us to
learn new ideas, share knowledge, and join with others to speak out against
government when it threatens our liberty. It also protects our right not to join with others and not to speak if we don’t want to. One
might expect state bar associations, which are supposed to help attorneys
understand and follow the law, to appreciate this. But in a sad twist of irony,
attorneys in many states are forced to join pay dues to a state bar association—and
the state bar associations all too often use lawyers’ mandatory members’ dues
to take positions on issues, with which members may or may not agree.
Fortunately,
attorneys across the country are increasingly standing up for their rights. The
Goldwater Institute is representing attorneys challenging mandatory bar
membership dues in North
Dakota, Oregon,
Oklahoma,
and Louisiana.
Meanwhile, our allies in liberty at Wisconsin
Institute for Law & Liberty and the Liberty Justice
Center have each filed a lawsuit to protect the free speech and association
rights of Wisconsin attorneys. Another suit is challenging Texas’s
mandatory bar.
As long as attorneys are forced to join and pay it, the State Bar of Michigan should not be in the business of promoting anyone’s political activism or policy ideas. And the State of Michigan shouldn’t be forcing anyone to join or pay money to an advocacy group to work in their chosen profession. Already 18 states, including some of the biggest and some of the smallest, regulate attorneys without forcing them join a bar association. Two more, including California, only allow their mandatory bar association to engage in specified purely regulatory activities—not political speech.
How the Michigan Bar Association Engages in Political Advocacy
“In
order to practice law over the past 48 years, I’ve been compelled to be a
member of an organization that speaks for me, regardless of whether or not I
share its beliefs,” Taylor said. “Lawyers in their personal and professional
capacities hold and articulate a diverse set of opinions, and yet the State
Bar’s policies and positions become attributed to all of Michigan’s 45,000-plus
lawyers.”
There are more than just a few examples of how the State Bar
of Michigan has used member dues for political advocacy.
- The State Bar opposed a bill allowing small limited liability corporations to represent themselves in landlord-tenant proceedings, protecting the legal industry and restricting competition.
- The State Bar supported legislation on issues that aren’t even related to the practice of law, such as a bill to change rules regarding expungement for juvenile offenders and a bill about the charging of minors who commit prostitution-related offenses.
- The State Bar also has member interest groups, known as “Sections,” that vote on and publish policy positions, such as opposing bills regarding the enforcement of certain prenuptial agreements, supporting a bill regulating when a parent may eavesdrop on a child, and advocating for animal rights issues. In many cases, Sections’ decisions on what policies to endorse aren’t even unanimous. Not even all Section members agree about these issues—yet every attorney in the state is forced to support one side over the other by virtue of the State Bar presumably using mandatory dues to publish and promote the Sections’ policy opinions on the Bar’s website and in its Journal and e-subscriptions. The State Bar also employs staff who provide administrative support to these Sections as well as space and services to facilitate meetings at State Bar headquarters.
Another
example of the State Bar using member dues for political speech can be found in
its statement on
the Mackinac Center’s lawsuit itself, which declares it “fundamentally wrong.”
Obviously, that’s a controversial position with which some members—such as the
plaintiff in the lawsuit, a lawyer who has been forced to pay dues to the State
Bar for more than 45 years—disagree. But, again, all are forced to pay.
If other states
can regulate lawyers without making them pay for bar association politics, so
can Michigan. The courts should end Michigan’s mandatory bar and all laws that
force individuals to pay for other people’s political advocacy.
Jacob Huebert is
a Senior Attorney and Kileen Lindgren
is the Legal Programs Manager at the Goldwater Institute.
