US SC to Appeals Court: Reconsider case challenging mandatory fees lawyers pay to state bar association

The US Supreme Court asked the US Court of Appeals for the Eighth Circuit to reconsider a case challenging mandatory fees lawyers pay to a state bar association.

Issues in this case were:

• Whether it violates the First Amendment for state law to presume that the petitioner [Arnold Fleck] consents to subsidizing non-chargeable speech by the group he is compelled to fund (“opt-out” rule), as opposed to an “opt-in” rule whereby he must affirmatively consent to subsidizing such speech

• Whether Keller v. State Bar of California and Lathrop v. Donohue should be overruled insofar as they permit the state to force the petitioner to join a trade association he opposes as a condition of earning a living in his chosen profession

North Dakota attorney Arnold Fleck challenged mandatory fees attorneys pay to the State Bar Association of North Dakota claiming that the Association uses the fees to oppose a state ballot measure (to establish a presumption that each parent is entitled to equal parental rights) which he personally supported.

Fleck then asked whether the court will “permit the state to force Petitioner to join a trade association he opposes as a condition of earning a living in his chosen profession.”

North Dakota's fees range from $325 to $380. However, lawyers who are not interested in supporting the bar's political activities can deduct about $10.

According to Fleck, North Dakota attorneys should give affirmative assent to having their fees politically appropriated instead the current system of requiring an “opt-out.”

Considering the above statements, the Supreme Court thus asked the Court of Appeals to reconsider the case in light of the 2018 Supreme Court ruling in Janus v. State, County, and Municipal Employees in which the court struck down union security clauses in public-sector labor contracts.

Case background:

In 2014, North Dakota attorney Arnold Fleck volunteered time and money to support Measure 6, a state ballot measure to establish a presumption that each parent is entitled to equal parental rights. North Dakota has an integrated bar, meaning that Fleck and other licensed attorneys must maintain membership in and pay annual dues to the State Bar Association of North Dakota (SBAND) as a condition of practicing law.

When Fleck learned that SBAND was using his compulsory fees to oppose Measure 6, he filed a lawsuit seeking declaratory and injunctive relief, asserting three First Amendment claims.

• 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). This claim was resolved by a November 2015 settlement in which SBAND revised its license fees’ statement.

• Second, Fleck alleged that an integrated bar violates his freedoms not to associate and to avoid subsidizing speech with which he disagrees. The district court dismissed this claim as barred by Keller. Fleck concedes we are bound by Keller, so we need not further address this issue.

• Third, he alleged that SBAND’s “opt-out” procedure violates his right to affirmatively consent before subsidizing nongermane expenditures. The district court granted summary judgment dismissing this claim, the subject of Fleck’s appeal.