In Fleck v. Wetsh, review by the Supreme Court was sought of an 8th Circuit decision denying a challenge to North Dakota’s mandatory Bar Association dues, some of which went to political activities not directly related to Bar membership.

Note that this has nothing to do with licensing of attorney, as such. Rather, a majority of states require that in addition to registering with the state licensing authority (often the state Supreme Court), bar members also must register with the private Bar Associations. That’s the way it is in Rhode Island, I’m required to pay my annual dues both to the state Supreme Court and separately to the Rhode Island Bar Association.

The problem with this forced membership is that Bar Associations frequently engage in various forms of political activity.

This is a problem which the Supreme Court addressed in the union dues context in Janus v. AFSME. We wrote in June 2018 regarding the Janus ruling:

The Supreme Court handed another victory to free speech with Janus vs. AFSCME (American Federation of State, County, and Municipal Employees). In a 5-4 decision, the justices determined government unions cannot require non-members to pay union dues.

A quick history of the case: Mark Janus worked as a child support specialist for the Illinois Department of Healthcare and Family Services. He was not a member of the union but was required to pay “fair share” dues. The state of Illinois took $50 from his paycheck to cover the cost of the union dues.

Janus argued that these dues “violate his free speech rights because he disagrees with many positions taken by AFSCME and that everything the public employee union does is inherently political.”

Justice Samuel Alito wrote “that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”

The Pacific Legal Foundation describes the importance of the Fleck case as follows:

Do states require drinkers to buy their scotch and sodas at a government-run bar? Well, no. But 31 states do require all attorneys to belong to a government-run bar association as a condition for practicing law. Arnold Fleck, a North Dakota lawyer, is asking the U.S. Supreme Court to free him from his forced association with the State Bar Association of North Dakota. PLF, which has long supported attorneys’ efforts to refrain from subsidizing the political and ideological activities of state bar associations, filed an amicus brief supporting the petition in Fleck v. Wetch.
The Petition for a Writ of Certiorari in Fleck challenged North Dakota’s practice of requiring attorney’s to opt out of the poltical portion of dues, and framed the Questions Presented as follows:

This case involves compelled association and compelled speech in ways that are similar to Janus v. American Fed’n, 851 F.3d 746 (7th Cir. 2017), cert. granted, 138 S. Ct. 54 (U.S. Sept. 28, 2017) (No. 16- 1466), but different in an important respect. Unlike Janus, this petition addresses both of the legal issues this Court considered in Friedrichs v. California Teachers Ass’n, 136 S. Ct. 1083 (2016):

1. Does it violate the First Amendment for state law to presume that Petitioner consents to subsidizing non-chargeable speech by the group he is compelled to fund (an “opt-out” rule), as opposed to an “opt-in” rule whereby Petitioner must affirmatively consent to subsidizing such speech?

2. Should Keller v. State Bar of Cal., 496 U.S. 1 (1990), and Lathrop v. Donohue, 367 U.S. 820 (1961), be overruled insofar as they permit the state to force Petitioner to join a trade association he opposes as a condition of earning a living in his chosen profession?

The Supreme Court granted review today, but simultaneously issued an Order vacating the lower court judgment and remanding the case for further review in light of Janus:

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Janus v. State, County, and Municipal Employees, 585 U. S. ___ (2018).

The Pacific Legal Foundation describes what comes next:

In Fleck v. Wetch, North Dakota lawyer Arnold Fleck seeks to be free from his forced association with the State Bar Association of North Dakota. After considering his petition for writ of certiorari at eight consecutive conferences, the Supreme Court today granted the petition, vacated the decision below, and remanded for reconsideration in light of Janus v. AFSCME. This is a very important development because Fleck raises issues that were alluded to, but not decided, in Janus, and it does so in the context of a mandatory bar association rather than a public sector union….

The bar association cases and the union subsidization cases are closely bound and frequently cite each other. Janus cannot be distinguished simply because it arose in the union context. Therefore, the Fleck remand requires the Eighth Circuit Court of Appeals to determine how the overall principles enunciated in Janus apply to the concept of exclusive representation as it manifests in the mandatory bar context. Janus did not directly address the non-union employees’ challenge to the exclusive representation statute, which requires the union to bargain on behalf of both members and nonmembers and prevents nonmembers from negotiating the terms and conditions of their employment directly with their employer. The First Amendment principles outlined in Janus, however, demand that no one should be required to forfeit their political autonomy as the price of earning a living, including attorneys.

While the Supreme Court did not rule against mandatory Bar Association dues, by accepting the case and vacating the judgment pending reconsideration, the Supreme Court sent a clear signal that an opt-out structure may not suffice. This would force Bar Associations to get member consent to having a portion of dues spent on political activities, with the reality that many if not most attorney’s will choose not to opt-in and not to pay the extra amount.

The Goldwater Institute, which represents the plaintiff, has all the case documents on its website.


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