It was fourth and long for the 8th Circuit. It had previously ruled that North Dakota’s mandatory bar association rules passed constitutional scrutiny despite a First Amendment challenge by Arnold Fleck. But Fleck appealed that decision to the U. S. Supreme Court. SCOTUS directed the 8th Circuit to re-review its previous decision in light of the SCOTUS decision in Janus.
As previously discussed, Janus held that public sector unions could not, under state statute, deduct union fees from nonmember public employees unless those employees clearly and affirmatively waived their First Amendment freedom of association rights. Those rights include the ability to object to paying fees used for union activities that were political in nature.
Fleck challenged North Dakota’s mandatory bar association rules and fees on a comparable basis. Fleck argued that to practice law in North Dakota, he had to pay state bar association dues, dues that he believed ultimately went to fund political activities of the bar association.
Based on similar arguments, lawyers in Texas, Oklahoma, Oregon, and Wisconsin have also challenged mandatory bar association fees since the fees go to fund such “political” activities as access to justice and, of all things, diversity programs. Fleck was the first case to be decided post Janus and lawyers and state bar associations were closely watching it.
The 8th Circuit did what appellate courts frequently do when they have a chance: it punted
But rather than addressing the issues head-on, the 8th Circuit did what appellate courts frequently do when they have a chance: it punted. It held that Fleck’s most controversial and impactful challenge–that mandatory bar fees violate his First Amendment freedom of association rights–had been waived by Fleck by statements in briefs before the district court. There, Fleck stated that pre-Janus law in effect foreclosed the freedom of association argument. While it’s true that Fleck did take that position before the district court, it was only because SCOTUS had not yet decided Janus: the law at that time did, in fact, foreclose the argument. The 8th Circuit hung its hat on the notion that there were factual issues relevant to Fleck’s freedom of association claim that had to be fleshed out. Because Fleck had not presented the facts, there was no opportunity for the lower court to consider the issue adequately.
The 8th Circuit did hold that North Dakota’s procedural mechanisms for opting out of paying fees for so-called political activities were valid. But those mechanisms were somewhat unique to North Dakota–fees aren’t automatically paid, can’t be paid online and can only be paid by check–so the impact of the 8th Circuit’s holding in this regard may be minimal.
Why Is This Important?
Why is this important, and why am I writing about it in a blog devoted to technology and innovation?
If Fleck was correct and the ability of mandatory bar associations to collect fees spent on what might be considered political activities are constrained, it could have huge impacts on the profession. In particular, regulation of the profession and access to various programs like those involving access to justice, diversity, or even substance abuse could be threatened.
As we have seen post Janus, virtually any activity of a bar association could be labeled political
As we have seen post Janus, virtually any activity of a bar association could be labeled political. Could, for example, the efforts of bar associations to regulate fee splitting with nonlawyers or nonlawyer ownership be construed as political? What about the reverse: if a bar association were to decide to change its rules on these issues, is that “political”? In any event, programs that mainly help small firms and solo practitioners could dry up.
Many states might abandon mandatory bars altogether and leave it to courts to regulate the profession
Also, the broader the interpretation of political activities, the less the ability and desire of bar associations to attempt to collect mandatory fees. This would further financially constrain bar associations and lessen their ability to regulate the profession. And given a choice between fighting litigation and limiting programs, many states might abandon mandatory bars altogether and leave it to courts to regulate the profession. As previously discussed, courts might have a different view of how to interpret bar regulations and what is essential for regulating the profession, as we have recently seen in California and Utah.
The 8th Circuit provided little help in dealing with this thorny question so we must continue to wait and see as other courts grabble with these thorny issues. For additional information, see the excellent articles of Aebra Coe and Michelle Casady, in addition to my posts on the subject.