The U.S. Supreme Court has tossed a verdict that said lawyers are required to pay an annual membership just to practice in a state and an attorney working on the case sees Illinois is an example for other states.
Just as public employee unions can’t force nonmembers to pay representation fees, state bar associations can’t force lawyers to subsidize their operations and political activity, the U.S. Supreme Court said in a recent ruling about five months after it banned forced union fees in the landmark Janus vs. AFSCME decision.
Earlier this month, the nation’s high court threw out a 2017 lower court ruling in the North Dakota case, Fleck vs. Wetch, that allowed states to require lawyers to subsidize state bar associations.
The Supreme Court remanded the case without a formal ruling in light of the decision in the Janus case. In the Janus case, the Supreme Court ruled an Illinois state worker, Mark Janus, had his free speech rights violated by being forced to pay union dues as a condition of employment.
Justices tossed the Eighth Circuit Court of Appeals ruling in Fleck Vs. Wetch and ordered the circuit court to reconsider in light of Janus. The case centered around North Dakota attorney Arnold Fleck, who questioned why he needed to pay dues to The State Bar Association of North Dakota when their political interests diverged. In North Dakota, as in many other states, a lawyer must be a dues-paying member of the bar to practice law in the state.
Attorneys in Illinois aren’t required to pay dues to the Illinois Bar Association after passing the organization’s qualifying exam. In other states, attorneys must pay annual dues to the state bar association to practice law.
In its decision, the court ruled that offering an opt-out clause to forced dues wasn’t enough to protect free speech rights.
Goldwater Institute Vice President Timothy Sandefur, who helped defend the plaintiff from North Dakota, said lawyers shouldn’t have to pay hundreds of dollars a year just to work in a state.
“Being forced to join an organization like that violates the First Amendment right of freedom of association,” he said. “You can’t constitutionally be forced to join an organization or to subsidize political activities that you might disagree with.”
State bar associations often measure and endorse judges and other judicial appointments and seek to influence state legislators, some of whom are lawyers.
“The [American Bar Association] and groups like that have a great deal of influence in the political process,” he said.
Goldwater Senior Attorney Jacob Huebert said many states, Illinois included, have no requirements.
“Illinois, Ohio, Pennsylvania, New York and a bunch of others manage to regulate the profession without violating anybody’s First Amendment rights,” he said. “If they can do it, all states can do it.”