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SCOTUS sends mandatory bar association dues case back to Eighth Circuit for consideration under Janus

By Pamela Wolf, J.D.

The Supreme Court has granted certiorari, vacated the appeals court judgment, and returned to the Eighth Circuit a case that challenges the constitutionality of North Dakota’s mandatory bar association laws under the First Amendment. On December 3, the High Court returned the case with instructions for further consideration in light of its June 2018 ruling in Janus v. AFSCME, which bars unions from imposing agency fees on public employees who are not union members.

Below, in Fleck v. Weltch, the Eight Circuit erroneously affirmed summary judgment against the plaintiff, an attorney who was forced to pay mandatory bar association dues in order to practice law in North Dakota, on his claim that he had a right to affirmatively consent to any non-germane bar association expenditures, according to the petition for certiorari. The attorney disagrees with the Eighth Circuit’s finding that the bar association’s dues procedure was carefully tailored to minimize the infringement of First Amendment rights, even though it requires members to subtract the non-germane portion of their dues in order to calculate the actual amount owed.

The appeals court affirmed the dismissal of the attorney’s claim based on the Supreme Court’s 1990 ruling in Keller v. State Bar of California and its 1961 ruling in Lathrop v. Donohue.

In his petition for certiorari, the attorney asked the Supreme Court to reverse the Eighth Circuit’s decision and to overrule Keller and Lathrop. The two questions presented to the Court were:

  • Does it violate the First Amendment for state law to presume that [the attorney] consents to subsidizing non-chargeable speech by the group he is compelled to fund (an “opt-out” rule), as opposed to an “opt-in” rule whereby [the attorney] must affirmatively consent to subsidizing such speech?
  • Should Keller v. State Bar of Cal., 496 U.S. 1 (1990), and Lathrop v. Donohue, 367 U.S. 820 (1961), be overruled insofar as they permit the state to force [the attorney] to join a trade association he opposes as a condition of earning a living in his chosen profession?