Bar challenges may reach U.S. high court

By Paul Fletcher
BridgeTower Media Newswires
 
DETROIT, MI — A Michigan lawyer failed last month in her challenge to the requirement that she join the State Bar of Michigan and pay dues supporting advocacy activities with which she disagreed.

The 6th U.S. Circuit Court of Appeals, in Taylor v. Buchanan, on July 15 found that two U.S. Supreme Court cases were right on point and foreclosed her challenge.

But her argument takes on those two cases, which she claimed were built on precedent that has been overruled. She already has vowed to appeal.

The Taylor case is the latest challenge to a mandatory state bar and its use of dues money. A number of active cases in at least four states are percolating through the courts. Approximately 30 states and the District of Columbia have mandatory bars.

The high court rejected one such claim last year, while it has another pending, seeking a writ of cert.

With cases going both ways in the lower cases, it may be a matter of time until the high court takes one of the cases to resolve all the splits.

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Michigan argument

The cases that Taylor questioned are Lathrop v. Donohue, a 1961 case from Wisconsin, and the 1990 decision in Keller v. State Bar of California.

In both decisions, the high court affirmed the right of state bars to require mandatory membership and to assess dues. In Keller, the court said the bar could use dues money to fund activity “germane” to legal regulation.

The Keller court relied heavily on Abood v. Detroit Board of Education in its reasoning; Abood involved use of mandatory union dues.

And there’s the rub: In 2018, the Supreme Court overruled Abood in a case called Janus v. American Federation of State, County, and Municipal Employees, Council 31.

Sixth Circuit Judge Karen Nelson Moore summed up the argument this way: “According to Taylor, because Janus overruled Abood, and Abood was the foundation upon which the Court built Keller, we need not follow Keller (and, by association, Lathrop) here and are free to consider anew her constitutional claims.”

The court disagreed, Moore wrote. The Sixth Circuit said “the district court correctly concluded that Lathrop and Keller continue to bind the lower courts despite the Court’s ruling in Janus.” The majority opinion in Janus “made no mention of Keller (or Lathrop) in overruling Abood,” she said.

Moore wrote, “To Taylor’s credit, she acknowledges that Lathrop and Keller are an insurmountable hurdle if they remain good law,” and that was the conclusion by the Sixth Circuit.

Taylor, represented by the conservative Mackinac Center Law Foundation, already has filed papers to appeal.

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Another Wisconsin case

In June 2020, the U.S. Supreme Court, in another case from Wisconsin, declined to grant an appeal to lawyers challenging their mandatory bar membership. They used the same arguments Taylor used in the Michigan case.

Two members of the court, Justices Clarence Thomas and Neil Gorsuch, dissented from the denial of review in Jarchow v. State Bar of Wisconsin.

Thomas wrote, “Our decision to overrule Abood casts significant doubt on Keller. The opinion in Keller rests almost entirely on the framework of Abood. Now that Abood is no longer good law, there is effectively nothing left supporting our decision in Keller.”

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Oregon and Texas

The high court currently has a case before it on these same issues seeking a writ of cert, Crowe v. Oregon State Bar.

The 9th U.S. Circuit Court of Appeals rejected two lawyers’ challenge to bar membership on free speech grounds, but found that they could bring a claim arguing that mandatory membership in an organization engaging in political or ideological pursuits violates their right to freedom of association. The Oregon bar appealed.

And just two weeks before the Sixth Circuit decided Taylor, the 5th U.S. Circuit Court of Appeals found in favor of three lawyers challenging their membership in the State Bar of Texas.

The case is McDonald v. Longley, in which the plaintiffs claimed the bar was “engaged in political and ideological activities that are not germane to its interests in regulating the legal profession and improving the quality of legal services and that therefore, compelling them to join the Bar and subsidize those activities violates their First Amendment rights.”

A district judge granted summary judgment to the bar, but the 5th Circuit vacated that ruling and remanded the case, finding that the bar’s lobbying activities had not been related to bar regulation. Among the bills the bar had supported were measures to enhance LGBT rights.

Judge Jerry E. Smith wrote for court that “the [Texas] Bar is engaged in non-germane activities, so compelling the plaintiffs to join it violates their First Amendment rights. There are multiple other constitutional options: The Bar can cease engaging in non-germane activities; Texas can directly regulate the legal profession and create a voluntary bar association, like New York’s; or Texas can adopt a hybrid system, like California’s. But it may not continue mandating membership in the Bar as currently structured or engaging in its current activities.”

The case goes back to the district court for further proceedings.

On the same day it decided the Texas case, the 5th Circuit reinstated a similar challenge to the bar in Louisiana, Boudreaux v. Louisiana State Bar Association, finding that the plaintiff has standing to sue.



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