ST. PAUL, Minn. (CN) – An Eighth Circuit panel heard oral arguments Thursday in an attorney’s challenge over a state bar association’s requirement that attorneys be members of – and also pay dues to – the association in order to practice law.
Arnold Fleck, an attorney and resident of Burleigh County in North Dakota, sued the State Bar Association of North Dakota (SBAND) in 2015 over the mandatory membership requirement. He says the requirement violates attorneys’ First and 14th Amendment rights.
According to Fleck, member dues are being used in political activities as well. Fleck says he discovered his state bar dues were used to fund opposition to a child custody measure on the 2014 North Dakota ballot that he strongly supported.
Currently 18 states do not require state bar membership to practice law.
A lower court dismissed Fleck’s lawsuit and the Eighth Circuit affirmed. But in December 2018, the U.S. Supreme Court vacated the dismissal and remanded to the Eighth Circuit “for further consideration in light of Janus v. State, County and Municipal Employees.” Both courts had instead relied on the Supreme Court’s finding in 1990’s Keller v. State Bar of California, ruling Keller barred Fleck’s claims.
In a heated discussion Thursday over whether Keller applies, Fleck’s attorney Timothy Sandefur asked the panel find it does not – even though he conceded it did during his prior appearance at the Eighth Circuit. Instead, Sandefur said the panel should apply Janus.
Sandefur said Janus requires SBAND to prove the state’s regulation of attorneys cannot be achieved with fewer restrictions on Fleck’s First Amendment rights. He argued states can regulate the practice of law without mandatory state bar requirements.
“Janus was dealing with non-members, and when you have to consent to non-members the process will be inevitability be different; it’s not the same relationship here,” U.S. Circuit Judge James B. Loken told Sandefur.
“The principles of Janus apply here,” Sandefur replied, adding Janus allowed for “freedom of association.”
The state bar’s attorney, Shawn Grinolds of Bakke, Grinolds, Wiederholt, said in an interview that the U.S. Supreme Court held in 1961’s Lathrop v. Donahue and in Keller that states have a legitimate interest in regulating the practice of law and in improving the quality of legal services.
“Under Lathrop and Keller, a state is within its rights to allocate these costs to all lawyers who derive benefit from their unique status of being among those admitted to practice before its courts,” Grinolds said.
Under North Dakota law, Grinolds said, all licensed attorneys are required to pay an annual $380 fee that is used to pay for the regulation of the attorneys and to improve the quality of legal services.
Expenditures not associated with regulating or improving legal services are not funded by state bar dues, Grinolds said. Instead, attorneys can contribute to those voluntarily.
Fleck is only person to have ever challenged North Dakota’s requirement, Grinolds stated.
“We believe the long-standing precedent of Lathrop and Keller should be upheld and Mr. Fleck’s challenge dismissed,” he said.
But another of Fleck’s attorneys, Jacob Huebert of the Goldwater Institute, disputed Grinolds’ claims that state bar dues are only used to regulate the industry.
“Fleck filed his lawsuit after the bar association used $50,000 of mandatory member dues to oppose a ballot measure that he personally supported with his time and money. Mr. Fleck sued because he objected to having his mandatory dues used to fund political advocacy he disagreed with. He also objects to being forced to join a bar association, and to being forced to pay for any bar association speech, just to be allowed to do his job,” Huebert said in an interview.
Forced association and forced funding of others’ political speech infringes on the fundamental First Amendment rights of freedom of association, and freedom of speech is something the Supreme Court has recognized, Huebert said.
The panel did not indicate when it would rule.