By Tom Kirvan
Legal News
An attorney since 1972, Lucille Taylor was more than a willing plaintiff when she was approached last summer by the Mackinac Center Legal Foundation about becoming involved in a lawsuit against the State Bar of Michigan, to which she has belonged for now 48 years.
Her willingness to take on the 46,000-member State Bar in federal court was partly influenced by her husband, Clifford Taylor, former chief justice of the Michigan Supreme Court and the current chairman of the Midland-based Mackinac Center for Public Policy, a think tank that champions a free-market point of view.
“Cliff mentioned to me that the Mackinac Center was interested in being an active participant in a suit challenging the compulsory nature of membership in the State Bar and the discussion eventually turned to whether I would be willing to be the lead plaintiff,” Taylor said of the origin of her involvement in the case of Lucille S. Taylor v. State Bar of Michigan.
“Since I was retired from public service work and not associated with a firm, I’m not inhibited by any relationships that could prove to be hurdles in such a case,” she noted. “I also for years have not been comfortable with the mandatory nature of State Bar membership, which I believe violates First Amendment principles.”
The legal timing also appeared ripe for such a challenge to the State Bar, based on the 2018 decision by the U.S. Supreme Court in Janus v. AFSCME, a case in which the high court ruled that forcing public sector employees to pay union dues was a violation of their First Amendment rights.
Last summer, after filing the lawsuit in U.S. District Court for the Western District of Michigan, Taylor said, in effect, that the State Bar invited such a legal challenge.
“Since the passage of right-to-work in Michigan and the recent decision in Janus v. AFSCME, I expected the State Bar of Michigan itself to initiate measures to become a voluntary membership organization, which it has failed to do,” Taylor said. “Thanks to the Janus decision, public agencies can no longer require a captive membership. Attorneys should be free to choose whom they associate with as well.”
According to the Mackinac Center, at least 20 states, including the population centers of New York and California, do not have mandatory membership associations for attorneys. Lawyers in those states reportedly still pay fees to practice, but unlike in Michigan, they can voluntarily choose whether to become a member of an association.
Officials with the Mackinac Center noted that “approximately 60 percent of practicing lawyers in the United States reside in those 20 states,” which “clearly demonstrates that mandatory membership is unnecessary.”
For Lucille Taylor, the cost of her membership in the State Bar is $315 annually. The full license fee amount of $315 for active practice consists of $180 for the State Bar portion, $120 for the attorney discipline system, and $15 for the Client Protection Fund, according to State Bar President Dennis Barnes.
An attorney with Barris Sott Denn Driker in Detroit, Barnes noted that in the “states in which members of the bar must belong to the organized state bar as a condition of being licensed to practice, the state bar has been integrated into the state’s regulatory structure, albeit in a variety of different ways—thus the term ‘integrated bar’ is increasingly seen as a better descriptor than ‘mandatory bar.’”
Upon the filing of the lawsuit, the State Bar responded that it “strictly follows the rules established by the Michigan Supreme Court to protect the First Amendment rights of licensed Michigan lawyers developed in response to controlling U.S. Supreme Court law.”
State Bar officials added: “We are confident that the State Bar is fulfilling its statutory responsibilities to the public as an instrumentality of the state consistent with the First Amendment and will respond to the pending legal action accordingly,” noting that the Taylor case follows a pattern of lawsuits across the country against integrated state bars which attempt to equate integrated state bars with unions.
“That analogy is fundamentally wrong,” State Bar officials contended. “Michigan, along with most other states, has chosen to integrate the bar into the regulation of the profession in order to better serve the public and save taxpayer dollars. The State Bar of Michigan, along with five other integrated bars, submitted an amicus brief in Fleck v. Wetch.”
The Fleck case, which involves a challenge to the State Bar of North Dakota’s practice of mandatory membership dues, was decided in favor of the North Dakota Bar in a ruling by the U.S. Court of Appeals for the Eighth Circuit last August, according to SBM President Barnes.
“And the United States Supreme Court denied plaintiff’s petition for certiorari on March 9, 2020,” Barnes added in regard to the status of the Fleck case.
The plaintiff in the Fleck case has asked the U.S. Supreme Court to reconsider its refusal to grant certiorari in light of several other challenges to compulsory bar membership, including the Taylor suit and the case of Jarchow v. State Bar of Wisconsin.
Taylor, who served as chief legal counsel to Gov John Engler during his terms in office, is hopeful that the U.S. Supreme Court will join all of the cases in order to rule “once and for all” on the constitutionality of mandatory bar membership.
“It’s clear that the Supreme Court needs to provide direction on this issue, although I’m not necessarily optimistic that it will do so,” Taylor said. “If it does grant certiorari, then the cases could be decided jointly. If the court elects not to, then my case will continue to proceed at the (U.S.) District Court level.”
The Taylor case is being heard by U.S. District Judge Robert Jonker, according to Derk Wilcox, senior attorney for the Mackinac Center Legal Foundation.
“Our first brief is due to be filed May 15th, and the (State) Bar's response is due to be filed June 15th,” Wilcox indicated.
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