Bar Association Fees on Shaky Ground After Supreme Court’s Summary Disposition

by Josh Taylor

On Monday, December 3,2018, the United States Supreme Court summarily granted writ of certiorari and issued an opinion in Fleck v. Wetch, a case out of the Eighth Circuit challenging mandatory payments of state bar association dues.  The Supreme Court granted cert and disposed of the case in just a few sentences given its tangential relationship to a case decided last term, Janus v. AFSCME, which the Smokeball Blog covered in depth.  The Supreme Court vacated the Eighth Circuit’s decision, and remanded “for further consideration in light of Janus.”

In Fleck, the Eighth Circuit addressed the issue of First Amendment rights and payment of state bar association dues.  Arnold Fleck, a North Dakota attorney, had dedicated time and money to support a ballot measure in the state.  He also paid compulsory dues to the State Bar Association of North Dakota (SBAND) as a condition of maintaining his license in the state, the same as in about 30 other states.  The issue, however, was that the bar association was using his and other North Dakota attorneys’ dues to oppose the same ballot measure.

Fleck filed suit alleging three First Amendment issues.  “First, he alleged that SBAND’s procedures for allowing members to object to non-germane expenditures failed to comply with the minimum safeguards required by Keller v. State Bar of California, 496 U.S. 1 (1990), and Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292 (1986).”  Fleck v. Wetch, 868 F.3d 652, 653 (8th Cir. 2017) (parallel citations omitted).  Next, “Fleck alleged that an integrated bar violates his freedoms not to associate and to avoid subsidizing speech with which he disagrees.”  Id.  Finally, “he alleged that SBAND’s ‘opt-out’ procedure violates his right to affirmatively consent before subsidizing non-germane expenditures.”  Id.  This third issue was the only issue on appeal, and the Eighth Circuit addressed it de novo and affirmed the district court’s grant of summary judgment against Fleck.  See id. 

Less than a year after the Eighth Circuit’s decision against Fleck, in June 2018 the U.S. Supreme Court issued a landmark ruling against union dues in Janus v. AFSCME, 585 U.S. __ (2018).  In it, the Supreme Court overturned a case the Eighth Circuit relied on to rule against Fleck, Abood v. Detroit Board of Education, 431 U.S. 209 (1977).  While Janus remains squarely in the labor context, a point made by Justice Kagan in dissent, the Court was obviously teeing up other contexts where dues-speech would later be dismantled.  Monday’s decision looks to be the start of that process.

The Eighth Circuit, now armed with Janus, will have the first crack at deciding whether bar association dues violate free speech rights.  Should it refuse to apply Janus in the private bar association context, it is likely that the Supreme Court will take issue and extend Janus itself.  While this latest ruling likely sounds the death knell for required support of private state bar associations, it is not yet clear the impact in California, New York, Illinois or other states that include a state bar in a state agency that regulates lawyers.  All of us lawyers wait with bated breath for the Eighth Circuit’s response to the remand and whether the Supreme Court will again need to get involved.

You can read the full Eighth Circuit opinion prior to the Supreme Court’s December 3 ruling here.

You can read the short Supreme Court order vacating and remanding the case here.