December 26, 2019 / 8:12 PM / a month ago

Next stop for first post-Janus challenge to mandatory state bar dues: Supreme Court

(Reuters) - The 7th U.S. Circuit Court of Appeals has cleared the way for two Wisconsin lawyers to head to the U.S. Supreme Court with their First Amendment challenge to the state bar association’s structure, which requires lawyers to join the bar group and pay mandatory dues in order to practice in Wisconsin.

The U.S. Supreme Court held in 1961’s Lathrop v. Donohue that states can require lawyers to join bar associations. And in 1990’s Keller v. State Bar of California, the court concluded that mandatory bar association dues comport with the First Amendment as long as the bar association uses money from dues to regulate the legal profession and improve the quality of legal services.

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But Wisconsin lawyers Adam Jarchow and Michael Dean, represented by Baker Hostetler and the Wisconsin Institute for Law and Liberty, contend that Keller precedent cannot stand under the Supreme Court’s 2018 decision in Janus v. American Federation of State, County and Municipal Employees, which struck down a law requiring workers to pay mandatory “agency fees” to the union. They argue that mandatory bar association dues are just like the union “agency fees” the justices struck down in Janus.

Earlier this month, U.S. District Judge Barbara Crabb of Madison granted the State Bar of Wisconsin’s motion to dismiss the suit, noting that both sides agree the bar association can compel lawyers to join and pay dues under Keller precedent. Baker Hostetler asked the 7th Circuit for summary affirmance of Judge Crabb’s opinion, arguing that litigation before the circuit court would be pointless because the case seeks to overturn Supreme Court precedent. On Monday, the 7th Circuit granted the motion, freeing Jarchow and Dean to petition for Supreme Court review.

Their case, according to their lawyer Andrew Grossman of Baker Hostetler, will be the first purely post-Janus First Amendment challenge at the Supreme Court to mandatory bar association membership and dues. (The pending Supreme Court petition in Fleck v. Wetch, contends that North Dakota’s mandatory bar association dues and membership violate the First Amendment, but that case predates the Supreme Court’s Janus ruling and may, according to Grossman, have procedural flaws.)

Wisconsin state bar counsel Roberta Howell of Foley & Lardner did not respond to an email requesting comment.

Wisconsin is one of 32 states with an “integrated” bar association, in which lawyers must belong to bar association and pay dues in order to practice. To comply with the Supreme Court’s decision in Keller – which specifies that mandatory bar dues cannot be used for political or ideological activities – the Wisconsin group sends its members an annual statement itemizing which of its expenses can be covered by mandatory dues and which can only be paid by “voluntary” dues. Wisconsin lawyers are entitled to withhold from their annual dues a pro rata share reflecting bar association activities that cannot, under Keller, be sponsored by mandatory dues. The bar association calls that process the “Keller dues reduction.”

Jarchow and Dean nevertheless argued that they are forced to be associated with and to fund the bar group’s views on matters far afield from regulating the profession or improving the quality of legal services, including “the death penalty, gender identity, gun rights and regulation, criminal justice initiatives, policies towards suspected sex offenders, President Trump’s tweets, immigration policies and public education.” In Janus, they maintain, the Supreme Court acknowledged that the public employees’ union could not draw a line between political speech and non-ideological speech that directly affects workers because all of the union’s activities were a matter of public interest. That’s even more true, they said, of the bar association’s speech.

“The Wisconsin Bar does not engage in any speech that even arguably confers a direct financial or material benefit on Wisconsin attorneys,” Jarchow and Dean said in their 7th Circuit brief. “The line that Janus concluded is impossible to draw in the labor union context between political and non-political speech is equally untenable in this context.”

It does not matter, they said, that the bar association allows lawyers to reduce their dues to avoid funding speech outside of the Keller parameters. The Supreme Court’s Janus opinion held that the union agency fee was unconstitutional unless an employee affirmatively assented to pay it. The same, they said, is true of bar association dues. “After all, no one would seriously contend that Wisconsin may pass a law diverting portions of its citizens’ paychecks to a political party with the citizens’ only having the ability to opt out of subsidizing portions, but not all, of the political party’s speech — and then receiving only half a reduction in the compulsory subsidization,” their 7th Circuit brief said. “The same principle controls here.”

“Wisconsin lawyers are forced to join a group that spends their money on all kinds of political activities,” said Grossman, who said that one of the reasons for targeting the Wisconsin group is that the bar association is not even ultimately responsible for regulating the profession. The Wisconsin Supreme Court’s Office of Lawyer Regulation determines attorney misconduct and imposes discipline on lawyers who have acted unprofessionally. The bar association, Grossman said, “is gratuitous.”

I expect the Wisconsin bar association to oppose the lawyers’ inevitable Supreme Court petition by insisting that Keller remains valid despite the court’s Janus opinion. The group previewed its argument in its motion to dismiss the lawyers’ case when it was before Judge Crabb. The Janus majority, that brief pointed out, did not mention Keller. Janus’ only citation of Keller precedent came in a dissent in which Justice Elena Kagan said, in an aside, that the majority had not addressed “cases involving compelled speech subsidies outside of the labor sphere,” including Keller. And according to the bar association, in Harris v. Quinn (573 U.S. 616), a 2014 precursor to Janus, the Supreme Court explicitly distinguished Keller from precedent involving union dues because of the state interests in legal services and attorney professionalism.

“Given that these interests unquestionably remain post-Janus, Keller ‘fits comfortably’ with this more-recent decision,” the bar association said.

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