The following are two press releases, the first from the State Bar of Michigan and the second from the Michigan Supreme Court in response.
LANSING, Mich., Feb. 7, 2014 – The State Bar of Michigan Board of Commissioners voted unanimously to oppose Senate Bill 743 in a teleconference meeting on Feb. 6. The bill, calling for voluntary membership in the State Bar of Michigan, was introduced on Jan. 23 by state Senator Arlan Meekhof.
SBM President Brian Einhorn and Executive Director Janet Welch informed Michigan Supreme Court Chief Justice Robert P. Young Jr. and his fellow justices of this decision in a letter sent to the court on Feb. 6. The letter says that SB 743
raises questions about the operation of the State Bar as a mandatory organization that are most appropriately addressed within the judicial branch of government, pursuant to the Supreme Court’s exclusive constitutional authority to establish practice and procedure for the state’s legal system under Michigan Constitution Article VI, Section 5. The State Bar asks the Michigan Supreme Court to initiate a review of how the State Bar of Michigan operates within the framework of the Supreme Court of the United States’ ruling in Keller v State Bar of California.
The rules of the Michigan Supreme Court direct the State Bar of Michigan to aid in promoting improvements in the administration of justice and advancements in jurisprudence, in improving relations between the legal profession and the public and in promoting the interests of the legal profession in Michigan.
“We value the reputation the State Bar has established as a national leader in pursuing these purposes for nearly eight decades,” said SBM President Brian Einhorn and Executive Director Janet Welch in the letter. “We know that our continued effectiveness depends on the confidence of this Court and our membership in our adherence to our core mission and to the constitutional boundaries defined by the Keller decision and the Michigan Supreme Court. Our decision-making in carrying out our duties to our members and the public is grounded in such adherence, and we believe that a structured conversation on this subject undertaken under the auspices of the Supreme Court will fully address the questions raised by SB 743. We hope that the Supreme Court review will strengthen and clarify the capacity of the State Bar to fulfill its mission in the decades to come.”
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LANSING, MI, February 13, 2014 – Should the State Bar of Michigan continue as a mandatory bar, which attorneys must join in order to practice law in Michigan? That is among the issues a newly created task force will consider, taking into account attorneys’ First Amendment rights and the need to regulate the legal profession.
The Michigan Supreme Court announced the task force’s creation today in an order, noting that the State Bar “requested that the Michigan Supreme Court facilitate this important discussion.” Under article 6, section 5 of the Michigan Constitution, the Court has the constitutional responsibility for setting legal “practice and procedure” in Michigan courts.
The Supreme Court’s announcement comes in the wake of Sen. Arlan Meekhof’s (R-West Olive) introduction of SB 743, which would allow attorneys to practice law in Michigan without joining the State Bar.
The Supreme Court’s order cites its decision in Falk v State Bar of Michigan, 411 Mich 63 (1981) and the U.S. Supreme Court’s decision in Keller v State Bar of California, 496 US 1 (1990).
Keller upheld mandatory bar membership in the interests of regulating the practice of law and protecting the public, but added that mandatory bars may not use members’ dues to fund ideological activities that fall outside those interests. In Falk, a plurality opinion written by then-Justice James L. Ryan stated that, to comply with the First Amendment, the State Bar would have to show that mandatory membership and dues served a “paramount” interest to the state, and that there was no less restrictive means to advance that compelling state interest.
The new task force’s assignment: Determine whether the State Bar’s duties and functions can “be accomplished by means less intrusive upon the First Amendment rights of objecting individual attorneys,” consistent with Keller and Falk, the Supreme Court’s order instructs. “At the same time, the Task Force should keep in mind the importance of protecting the public through regulating the legal profession, and how this goal can be balanced with attorneys’ First Amendment rights.”
Justice Bridget McCormack will serve as the Court’s liaison to the task force and Supreme Court Commissioner Nelson Leavitt will serve as the task force’s reporter. Hon. Alfred Butzbaugh, trustee of the Michigan State Bar Foundation, a past president of the State Bar, and former chief judge of the Berrien County Trial Court, will chair the task force. A report is expected in June 2014.
Other task force members include:
—Danielle Brown, member, State Bar Board of Commissioners;
—Thomas Cranmer, attorney, State Bar past president and member of the State Bar’s Judicial Crossroads Task Force;
—Peter Ellsworth, attorney, Michigan State Bar Foundation Board of Trustees;
—John McSorley, attorney, past member of the State Bar Board of Commissioners;
—Colleen Pero, attorney, member of the State Bar Board of Commissioners;
—Hon. Michael Riordan, judge of the Michigan Court of Appeals and member of the State Bar Board of Commissioners;
—Thomas Rombach, attorney, State Bar of Michigan president-elect;
—John Reed, professor emeritus, University of Michigan Law School and former dean of both Wayne State University Law School and University of Colorado Law School;
—Hon. John Walsh, attorney and state representative (R-Livonia), Speaker Pro Tempore and former chair of the House Judiciary Committee;
—Janet Welch, attorney, State Bar of Michigan executive director;
—Vanessa Williams, attorney, vice-chair of State Bar Representative Assembly.
To see the Court’s Order, visit http://courts.mi.gov/Courts/MichiganSupremeCourt/rules/court-rules-admin-matters/Adopted/2014-07_2014-0213_SBM%20Task%20Force_AO%20No%202014-5.pdf
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