SCOTUS Ruling Leaves Keller Alone—for Now

By Joan C. Rogers and Kimberly Strawbridge Robinson

March 29 — A possible threat to mandatory state bar groups' ability to collect dues from lawyers who don't want to pay for a bar's political or lobbying expenses was removed—for now, at least—by the U.S. Supreme Court March 29.

The eight justices couldn't muster a majority to decide whether the existing constitutional framework on compulsory dues for people who must contribute to an organization to work—typically a labor union, but also a state bar—needs to be changed.

However, the issue of mandatory dues is percolating through courts in other cases, including an Eighth Circuit appeal of a ruling involving the North Dakota state bar.

The spectre of constitutional challenges was partly what led the Nebraska Supreme Court two years ago to limit the use of compulsory bar dues to specific categories of activities germane to regulation of the legal profession.

Confining mandatory dues to specific categories of lawyer regulation will avoid the protracted litigation that some other states have experienced regarding which bar activities lawyers may be compelled to fund without violating the First Amendment, the court said. See 29 Law. Man. Prof. Conduct 796.

Legal Challenges

People whose work requires them to financially support an organization have frequently challenged membership and dues requirements as contrary to their First Amendment freedoms of speech and association.

One key ruling came almost 40 years ago in Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), in which public school teachers challenged an agency shop clause requiring them to pay a service charge equal to union dues even if they were not union members.

The court held that agency shop agreements do not violate the First Amendment if nonmembers' fees go solely toward the costs of bargaining, contract administration and grievance adjustment and do not subsidize political candidates or ideological views unrelated to collective bargaining.

Abood formed the underpinning for Keller v. State Bar of Cal., 496 U.S. 1 (1990).

Keller held that the use of compulsory bar dues to finance political and ideological activities with which bar members disagree violates those members' First Amendment rights to the extent the bar group incurs such expenditures for purposes other than the regulation of the legal profession or improvement in the quality of legal services. The bar must put in place some mechanism to deal with members' objections, the court held.

Teachers' Challenge

The Supreme Court has hinted in recent cases that Abood was in danger, and observers speculated that the court might be ready to overturn it. Friedrichs brought the issue before the court.

The public school teachers suing in Friedrichs contended that requiring them to contribute financial support to any union violated their rights of free speech and association.

The district court held that Abood foreclosed their arguments, and the Ninth Circuit affirmed.

In January the Supreme Court heard oral argument in the case, but Justice Antonin Scalia's unexpected death Feb. 13 left the justices in a 4-4 deadlock that precluded a definitive ruling.

The court instead issued a per curiam opinion merely stating that the judgment was affirmed by an equally divided court. The decision is not binding on federal courts outside the Ninth Circuit.

The decision leaves Abood and Keller undisturbed, at least for now.

The teachers will ask the court to rehear Friedrichs in an effort to keep the constitutional challenge alive until a ninth justice is seated on the high court, Terry Pell, president of the Center for Individual Rights, told Bloomberg BNA.

The center, which brought the case on behalf of the teachers, hopes the court will “sit on it” until nine justices can resolve the case, Pell said.

Bar Dues Raised at Oral Argument

The continuing viability of Keller became a subject of discussion at oral argument in Friedrichs. Justice Ruth Bader Ginsburg asked whether overruling Abood would have the effect of overruling other precedent addressing mandatory dues, such as Keller.

Michael A. Carvin of Jones Day, who argued for the teachers in Friedrichs, denied that possibility. An intervening Supreme Court decision made clear that Keller‘s rationale differed significantly from that of Abood, he said.

However, Justice Elena Kagan countered that, in her reading, Keller and other cases say Abood provides the framework for analyzing the constitutionality of mandatory fees.

Carvin said giving money to a bar association differs from giving money to a union, but Kagan rejected the distinction.

“Bar associations do things all the time that lawyers disagree with,” she said.

Keller itself prohibits bars from spending mandatory dues on purposes not germane to lawyer ethics or service, Carvin said.

Amicus Briefs Raise Issue

Dueling amicus briefs filed in Friedrichs also addressed the connection between Abood and Keller.

A group of 21 past presidents of the District of Columbia Bar submitted a brief urging the court to leave Abood undisturbed. Integrated bars, including D.C.'s, have long relied on the Abood/Keller line of cases in structuring their activities, their brief said.

“Overruling Abood would have a profoundly destabilizing impact on bars all over the country,” the brief said.

Striking down Abood also would likely spawn additional time-consuming and expensive lawsuits by bar members who don't want to pay their mandatory bar dues, the former bar presidents said.

The Goldwater Institute submitted an amicus brief urging the court to overrule Abood so that public employees don't have to fund unions' collective bargaining.

The Goldwater Institute's brief denied that overruling Abood would necessarily topple Keller. However, it urged the court to make clear that Keller permits bar associations to compel dues only for the purpose of attorney regulation.

Bar associations and court decisions are mistaken in concluding that Keller allows mandatory dues to be collected for the purpose of improving the quality of services, the brief said.

The Goldwater Institute's brief also said Keller's own unique failings should lead the court to strike it down.

The fact that 18 states manage to regulate attorneys without compelling them to join and fund mandatory bars makes plain that states can regulate attorneys without impinging on lawyers' associational freedoms, the brief said.

Case Against N.D. Bar

The Goldwater Institute is pursuing a legal challenge on behalf of a lawyer who objects to paying mandatory dues to the State Bar Association of North Dakota.

The case is now on appeal. Fleck v. Welsh, No. 16-1564 (8th Cir., filed March 4, 2016).

Attorney Arnold Fleck sued the state bar after learning it had contributed financial support to a group that opposed a shared-parenting ballot measure he personally supported.

During the litigation the bar association agreed to adopt a procedure allowing members to opt out of paying a share of expenditures not chargeable to them under Keller.

However, the district court rejected Fleck's claims that North Dakota's integrated bar and compulsory dues violate his First Amendment rights and that bar members must be allowed to “opt in” to fund expenditures other than lawyer regulation, rather than being required to opt out.

Those arguments are foreclosed by Supreme Court precedent, the district court held.

The plaintiff's opening brief in the appeal is due April 29, Jared Blanchard, an attorney with the Goldwater Institute, told Bloomberg BNA.

“We are trying to get the Fleck case to the Supreme Court,” he said.

Impact of Scalia's Death

There was a general sense following oral argument in Friedrichs that Scalia was going to vote with conservatives against the public unions, Paul Smith of Jenner & Block LLP, Washington, told Bloomberg BNA March 29.

Smith argued on behalf of the unions in a similar case before the Supreme Court in 2014, Harris v. Quinn, 2014 BL 180311 (U.S. June 20, 2014).

The court in Harris stopped just short of overruling Abood. But it seemed like the other shoe would finally drop in Friedrichs, Smith said. It's likely that Scalia's death changed the outcome of the case, he said.

Patrick Semmens of the National Right to Work Foundation, Springfield, Va.—whose organization seeks to overturn Abood—agreed.

An “evenly split court always seemed like the most likely outcome after the sudden passing of Justice Scalia,” Semmens told Bloomberg BNA in a March 29 statement.

But the issue isn't going away and could return to the high court soon, Semmens said. “National Right to Work Foundation staff attorneys already have five cases working their way through the court system asking that mandatory union dues and fees be struck down as a violation of employees’ First Amendment rights,” he said.

“Because the 4-4 split in Friedrichs has no precedential legal value, we fully expect the constitutionality of forced unionism to be back before the Supreme Court before too long,” Semmens said.

To contact the reporters on this story: Joan C. Rogers in Washington at and Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Kirk Swanson at

Proposed Legislation in Arizona

Legislation related to mandatory lawyer-regulation fees is in the pipeline in Arizona.

The Arizona House of Representatives Feb. 24 passed H.B. 2221; the Senate has not yet voted on it.

The bill would permit the state supreme court to collect a mandatory assessment to support the court's regulatory functions. It limits the use of those assessments to six purposes:

▸admitting attorneys to practice law;

▸maintaining attorney records;

▸enforcing the ethics rules that govern attorneys;

▸regulating continuing legal education mandates;

▸maintaining attorney trust account records; and

▸preventing the unauthorized practice of law.

The bill would allow the Arizona State Bar to collect voluntary membership dues for other purposes.

The House-passed bill would require the bar, if it accepts any mandatory assessment monies, to make available to the public a list of all expenditures the bar made with those funds and obtain an independent audit to ensure that all expenditures were for the purpose of the listed regulatory functions.

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.


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