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Prospects for Disestablishment of Mandatory State Bars Rise in Aftermath of Janus Decision

The Journal Record Legislative Report

August 7, 2018

As many are now aware, the decision by the U.S. Supreme Court in the Janus v. AFSCME decision in late June established right to work for all public-sector employees throughout the country. This change in and of itself has caused quite the stir on its long-term effects on organized labor. The decision’s effects will not likely be confined to that sector, however. Another sector with a fairly long case history concerning compelled fees is the legal field itself, with fights over mandatory bar association dues going back to the 1950s.

In the aftermath of Janus, there has been no small amount of speculation on how mandatory membership in bar associations could be affected. This has received attention from those with politically left-wing, right-wing, and libertarian viewpoints, all of whom see the mandatory structure under likely threat of being torn down. There reason for feeling such derives from how this court thought the previous court in 1977 erred with Abood v. Detroit BoE in citing Railway Employees’ Dept. v. Hanson in saying that compelled dues could be justified on certain grounds, but those grounds have shifted and the feeling of the court of the time was misplaced. If the court’s majority felt that way about in Janus, then court precedents justifying bar dues with Lathrop v. Donohue and Keller v. California Bar Association, which both had similar logic to Abood, will likely lead to a major rethink for the 32 unified state bars across the country.

A court challenge on these grounds has been in the making for several years, and for a long time even before that. For example, the Keller decision prompted many years of litigation on the involvement of the California Bar Association in ideological issues and on how dues were spent. Beyond that, there had been some discussion on it in Arizona, and more significantly a major reduction and realignment of state bar dues in Nebraska after a legal fight in 2013. Locally and most prominently, a law professor OCU law School and columnist for The Journal Record, Andrew Spiropoulos, has been a vociferous critic of the state bar in Oklahoma for what he sees as political stands and for having too much control over certain state entities and issues. The discussion had also been a prominent part of multiple state and national bar meetings for a while. The case most likely to carry the torch for making bar dues voluntary is Fleck v. Wetch, which is up for certiorari in September right before the court restarts for its next term. The basis for Fleck started when Arnold Fleck, an attorney in North Dakota, supported a ballot measure there in 2014 concerning child custody, but the state bar of the state came out in opposition, using dues he had paid to the bar to oppose it. There were some moves to try to settle the case in 2015, but those broke down, and the case moved through the court system thereafter.

One of the most penetrating dissections of the impact from the Janus case has come from William Baude and Eugene Volokh, both professors at UCLA’s Law School and two of the country’s leading libertarian legal experts. They actually take the opinion that Janus was wrongly decided because the same argument for mandatory agency fees for public sector unions is often the same one that could be used for governmental actions and speech on certain topic, including military actions or PSAs. For them, to rule against unions but retain governmental taxing authority is a glaring inconsistency; though opponents to this could well say the government provides public services for the general populace, and unions are a particular interest by definition not open to the general public, and the government can change what it funds after being accountable to the public in regular votes. Another solution they proffer, funding unions directly, might be challenged under gift clause prohibitions that are in each and every state constitution.

Their own views aside, they decide to take the majority’s logic to its conclusion, stating that bar fees and student activity fees are likely threatened by Janus, and the state bars should act accordingly. He recommends a restructuring of their funding systems so that it might withstand scrutiny. For student fees, they say that universities could fold the student activity fees into tuition should a challenge occur there. For bar associations, one notable way would be to make them more official government entities, shielding it from scrutiny on those grounds. Short of that, a reworking to have a clear delineation within existing state bars between the purely regulatory side of the profession, and the voluntary side which may take stands on certain issues of public interest may also be in order, especially after the model of Nebraska a few years ago. Another solution is one that has been done in North Carolina, Virginia, and West Virginia, and that is a formal separation of the regulation side for attorneys and the volunteer side for them into two entities. This has neutralized any debate on the political involvement of the bar in those states, and no issues have occurred like in other places. Given the immediacy of the threat, both Baude and Volokh recommend that these groups prepare for the upcoming legal challenges and nullify them by acting on their proposals.

Overall, I expect a major push for reforming many state bars across the country in the next few years. How it takes form here in Oklahoma, I have no idea yet, but should the U.S. Supreme Court intervene, it is an issue that will be forced to the top of discussions for policymakers. I expect there could be a look at the Judicial Nominating Commission like there was under T.W. Shannon, but given the stakes further involved, that look will be even more comprehensive in scope, especially if constitutional amendments and referenda are involved. If and when it all occurs, though, the legal profession in Oklahoma with respect to its regulations I expect will look at least a bit different than today.

Here is a map of the type of bar association each state has, and how they were implemented if they are unified/mandatory. Note two typos: Montana’s mandatory bar came into effect in 1974, and Hawaii’s did in 1989. The gray states have voluntary bars.

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Here are some links to articles that helped to form the basis of this one:

http://www.scotusblog.com/2018/06/symposium-four-propositions-that-follow-from-janus/

http://www.scotusblog.com/2018/06/symposium-free-speech-for-public-employees-restored-justice-alito-plays-the-long-game/

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-886.html

https://goldwaterinstitute.org/fleck-v-wetch/

https://pacificlegal.org/challenging-the-mandatory-government-bar/

https://www.americanbar.org/groups/bar_services/resources/resourcepages/unifiedbars.html

https://www.americanbar.org/groups/bar_services/publications/bar_leader/2014-15/july-august/unified-bar-update-recent-challenges-including-teeth-whitening-legalzoom-cases.html

http://www.abajournal.com/news/article/bar_membership_remains_mandatory_but_top_neb._court_restricts_activities_on

https://www.americanbar.org/content/dam/aba/administrative/barservices/resourcepages/unifiedbars_nabehouston2015.authcheckdam.pdf

https://reason.com/volokh/2018/07/30/what-janus-got-right-and-wrong

https://www.illinoispolicy.org/how-an-illinois-mom-set-the-stage-for-monumental-janus-decision/

https://www.americanthinker.com/articles/2018/07/public_sector_unions_and_gifts_of_public_funds.html

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