Wisconsin Lawyers Balk at ‘Compelled Speech’ of State Bar Dues

MADISON, Wis. (CN) – Two Wisconsin lawyers filed a federal civil rights suit against the state’s bar association Monday, claiming mandatory membership to the bar association and the subsequent dues lawyers have to pay constitute compelled speech in violation of the lawyers’ First and Fourteenth Amendment rights.

In the 28-page complaint, Adam Jarchow and Michael Dean allege that the State Bar of Wisconsin “regularly engages in advocacy and other speech on matters of intense public interest and concern, and it funds that advocacy” with the dues.

“Accordingly, those requirements compel plaintiffs’ speech and compel them into an unwanted expressive association with the state bar, in violation of plaintiffs’ rights under the First and Fourteenth Amendments to the United States Constitution,” the lawyers say in their complaint.

They want a judge “to declare unconstitutional Wisconsin’s requirements that attorneys join and fund the State Bar of Wisconsin, order defendants to desist in enforcement of those requirements, and refund to plaintiffs the dues that they have been unconstitutionally compelled to pay.”

Jarchow and Dean, who have been members of the state bar for at least a decade, are represented by Richard Esenberg, president and general counsel of the Wisconsin Institute for Law & Liberty, a prominent group of advocacy lawyers that has actively defended conservative and libertarian positions since Esenberg founded the institute in 2011.

Attorneys practicing in Wisconsin are required to be licensed by the state bar association. Part and parcel with required membership are what the bar calls “compulsory dues” from its members, which vary from $258 a year for full dues-paying members to no cost at all for emeritus members, according to the complaint.

Members who fail to pay annual dues within 120 days of the due date may be suspended by the state bar, which then prohibits them from practicing law in the state. Disciplinary and oversight procedures for attorneys are handled by the Office of Lawyer Regulation and the Wisconsin Supreme Court.

The complaint names multiple “policy-related” points of advocacy undertaken by the state bar in recent years, including advocacy to restore felon voting rights, against DNA samples from juvenile sex offenders, regulation of online gun sales and criminal justice issues in Governor Tony Evers’ recent budget proposal.

Dean and Jarchow also feel their membership forces them to co-sign policy positions the state bar published in 2016. These positions include the bar’s opposition to a professional tax on legal services, measures to encourage diversity among the legal community, and opposition of the death penalty and certain state immigration laws.

The state bar’s commentary on a number of President Donald Trump’s moves while in office are also listed under the banner of the bar’s compelled speech, such as Trump’s attempted “refugee ban” and what the plaintiffs consider the bar’s direct response to some of the president’s tweets, particularly those challenging judges.

Considering all of this, the lawyers say “the state bar provides a limited mechanism by which members may avoid subsidizing some of the state bar’s speech.”

While the state bar does allow its member lawyers to opt out of “nonchargeable” activities that currently includes “all direct lobbying activity,” the men say “the state bar still treats as ‘chargeable’ much of its speech on matters of public interest and concern,” including matters related to the regulation of the legal profession, legal reform and “speech on many subjects pertaining to the practice of law, the operation of government and the provision of public services.”

Specifically cited in the complaint are Jarchow’s objection to the bar’s advocacy on criminal justice issues and felon voting rights, as well as Dean’s objection to the bar’s advocacy regarding unemployment insurance fraud, free exercise of religion and immigration law.

They note 18 states regulate the practice of law without requiring attorneys to join and pay dues to a bar association. They want Wisconsin to “use means significantly less restrictive of First Amendment freedoms” in lieu of its current system of required membership and dues.

Representatives with the State Bar of Wisconsin and the Wisconsin Institute of Law & Liberty could not be reached for comment after business hours Monday.

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