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Beyond Janus: Revisiting the Unified Bar

In a prior post, “After Janus, What’s Next?,” I previewed potential litigation challenges to aspects of public-sector unionism other than the compulsory payment of agency fees. Legal theories abound, including arguments extending the reasoning of Janus v. AFSCME [1] to the concept of exclusive representation itself. “Collective bargaining” under the Wagner Act model empowers unions to negotiate as the sole representative of all workers in a designated unit, even those who oppose union representation. Individuals are stripped of the right to negotiate on their own behalf.

Janus noted that exclusive representation “gives the union a privileged place in negotiations over wages, benefits, and working conditions.” Such collective, non-consensual arrangements smack of coercion. Cases seeking to invalidate exclusive representation for government employees as “compelled speech” are already wending their way to the Supreme Court.

The sweeping scope of Janus goes far beyond labor law, and unraveling of all the dubious precedents that led to Abood may result in legal challenges to other government-sanctioned cartels—such as bar associations whose members are compelled to subsidize the organization’s political activities. There are many parallels between labor unions and bar associations. They are both occupational groups in which membership, and the payment of dues, are often required as a condition of being able to sell one’s services. Both typically participate in political activities (such as lobbying) to varying degrees. Public-sector unions and bar associations both involve the direct exercise of state action—government compulsion. Not surprisingly, therefore, the Supreme Court’s treatment of First Amendment challenges to mandatory membership in unions and bar associations intersected in two Warren Court-era decisions, Railway Employes’ v. Hanson [2] and Lathrop v. Donohue. [3]

The laborious road to Janus allowed the Court to review—and carefully scrutinize—its precedents regarding the constitutionality of mandatory membership arrangements. The body of Supreme Court caselaw in this area was embarrassingly slipshod and haphazard. Justice Samuel Alito led the internal housekeeping effort, and his attention to detail was unstinting. Hanson and Lathrop in particular received a close inspection and were justifiably subjected to withering—and long-overdue—criticism.

The Court’s pre-Janus caselaw tended to treat labor unions interchangeably with bar associations, and casually overruled First Amendment objections to the compelled speech aspects of both. In Hanson (authored by the notoriously-sloppy Justice William O. Douglas), for example, the Court in 1956 rejected a First Amendment challenge to compulsory union membership with a single sentence, opining that

On the present record, there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who by state law is required to be a member of an integrated bar. [4]

In Harris v. Quinn [5], Justice Alito found Hanson’s analysis to be “thin,” and termed the foregoing statement to be “remarkable,” observing that prior to Hanson

the Court had never previously held that compulsory membership in and the payment of dues to an integrated bar was constitutional, and the constitutionality of such a requirement was hardly a foregone conclusion. Indeed, that issue did not reach the Court until five years later [in Lathrop], and it produced a plurality opinion and four separate writings.

Alito went on to point out that Lathrop—which actually involved a landmark challenge to compulsory bar membership—was even more incoherent than Hanson: Not only was the Court in Lathrop badly fractured, but Douglas, the author of Hanson, dissented in Lathrop, contradicting his own ill-considered dictum about bar associations. Alito noted that

in his Lathrop dissent, Justice Douglas, the author of Hanson, came to the conclusion that the First Amendment did not permit compulsory membership in an integrated bar. The analogy drawn in Hanson, he wrote, fails. “Once we approve this measure,” he warned, “we sanction a device where men and women in almost any profession or calling can be at least partially regimented behind causes which they oppose.” He continued: “I look on the Hanson case as a narrow exception to be closely confined. Unless we so treat it, we practically give carte blanche to any legislature to put at least professional people into goose-stepping brigades. Those brigades are not compatible with the First Amendment.” [6]

These are powerful words, and Alito’s quoting of them was not inadvertent.

In Janus, the Court overruled Abood in part due to its reliance on the flawed reasoning of Hanson and its overly-deferential standard. Following Janus, Hanson and Lathrop seem as vulnerable as Abood was. States requiring lawyers to join and pay dues to bar associations as a condition of practicing law (sometimes referred to a “unified” or “integrated” bar) closely resemble public employers that force all employees to financially support the union by paying agency fees or union dues. California and 30 other states have a “unified” state bar. The Supreme Court has acknowledged that “There is … a substantial analogy between the relationship of the State Bar and its members, on the one hand, and the relationship of the employee unions and their members, on the other.” [7] In Keller, the Supreme Court unanimously ruled that objecting dues-payers were entitled to a partial rebate determined by the amount of the bar’s political activities, similar to prorated agency fees for union members.

While bar associations, which are typically responsible for licensing lawyers and enforcing ethical rules, may not be “inherently” political in the same way that public-sector unions are, most bar associations also employ lobbyists, propose legislation, and take positions on public policy issues—some of them quite controversial. Mandating any financial support of a private organization engaged in political activity (even with a Keller-style rebate) is inconsistent with Janus. Keller expressly relied on Abood, and therefore carries little or no precedential weight. The Court will likely conclude that Janus overruled Keller sub silentio. Alito’s scathing treatment of Lathrop in Harris v. Quinn left that precedent on life-support. The rationale for upholding compulsory dues to unified bar associations has been discredited.

Accordingly, the Court’s recent action in Fleck v. Wetch, overturning an Eighth Circuit ruling that had upheld mandatory bar dues in North Dakota, and remanding the case “for further consideration in light of Janus” appears to be very consequential—handwriting on the proverbial wall. Bar associations, unless they confine themselves to non-political functions such as attorney licensure and discipline, cannot charge mandatory dues. The challenger in Fleck is represented by the Goldwater Institute, and is supported by the Pacific Legal Foundation, which litigated Keller. [Disclosure: The Goldwater Institute represents me in an unrelated matter challenging “release time” under the Texas Constitution.] A similar post-Janus challenge has been filed in Oregon, and more are sure to come. The Supreme Court will have a buffet of cases to choose from when it decides to apply Janus to unified bar associations.

Some states regulate the practice of law without a unified bar, and that practice will likely not be affected by Janus. Nor will voluntary membership organizations, such as the American Bar Association or the Federalist Society, be affected. Mandatory membership represents coercion, which can easily cross the line into compelled speech. As Goldwater’s Timothy Sandefur has noted, “Associations of lawyers—like the public employee unions at issue in Janus—have a powerful influence over the nation’s politics. That influence is distorted, however, by rules that don’t let lawyers as individuals decide whether or not to be a part of it.” Freedom of association is essential to liberty. Janus forbids compelled speech in the form of government-mandated financial support to private organizations. The unified bar is squarely in the cross-hairs.

[1] 138 S. Ct. 2448 (2018).

[2] 351 U.S. 225 (1956).

[3] 367 U.S. 820 (1961).

[4] 351 U.S. at 238.

[5] 134 S. Ct. 2618, 2629 (2014).

[6] Id. (emphasis in original; citations omitted).

[7] Keller v. State Bar of California, 496 U.S. 1, 12 (1990).

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on December 24, 2018 at 16:26:40 pm

All true.

Nevertheless, Douglas’ dissent in Terry v. Ohio was dead on right.

Blind squirrels do occasionally find a nut or two.

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EK
on December 24, 2018 at 16:50:16 pm

Yep, these State Bar associations are nothing more than a guild - but even the medieval guilds did not require one to pay to have another speak against one's interest (religious doctrines excepted).

BTW:

EK: I am missing the connection between Pulliam's essay and Terry v Ohio, a case concerning search and probable cause.

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gabe
on December 25, 2018 at 10:47:42 am

Read Douglas's lone dissent in Terry. He got a lot wrong, he was a lot like Holmes with his shoot from the hip opinions but occasionally they both got it right.

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EK
on December 26, 2018 at 11:36:00 am

"On the present record, there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who by state law is required to be a member of an integrated bar. [4]..." Written in 1956...just as true TODAY. If State Bar of Texas (SBOT) was not supported today by "unified dues," what entity could be forced to follow all the UNFAIR TRADE PRACTICES...that Texas Clients and "unfavored" Texas lawyers are now punished with by SBOT? OH, and certainly Malpractice Insurance in Texas would skyrocket...if SBOT is not supported by "unifed dues." If not SBOT, what organization would make decisions in favor of corrupt lawyers, robbing Texas Clients blind, and even hide the huge number of valid Grievances filed against corrupt Texas lawyers, never investigated and routinely denied by SBOT...as inconsequential! I pray for a Happy New Year!

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Debbie Asbury
on December 26, 2018 at 14:36:03 pm

[…] Law and Liberty, Mark Pulliam argues that after last term’s decision in union-fees case Janus v. AFSCME, […]

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Osibogun and Partners - Law Firm
on December 27, 2018 at 06:22:08 am

Crikey, that's a terrific article about a real sleeper of an enormous issue.

Will no one rid us of these mandatory bar associations and their meddlesome politics?

If the "unified bar" of the two associations which I was coerced for decades into funding (to the tune of tens of thousands of dollars) was unified on anything it was their incessant intrusion into Leftist politics, their politically-correct, ideologically-fueled expenditure of enormous sums of compulsory membership dues on the waging of social justice warfare. Since the early 1970's passing the bar exam has been like getting a draft notice to join, against one's will, an army of crypto- cultural revolutionaries masquerading as a bar association and operating in disguise to wage war on behalf of Leftist legal causes, such as racial and gender discrimination masquerading as Equal Protection under the Fourteenth Amendment; racial and sexual discrimination in public and private employment and in public education masquerading as affirmative action disguised as diversity quotas; the denial of civil rights to individuals justified by the higher callings of identity politics and group rights; politically-motivated secular religiosity and the religion of atheism masquerading as religiously neutral advocates of the separation of church and state yet organized and legally deployed out of hostility for Christianity and for the very purpose of destroying Christianity; lax enforcement of criminal and immigration laws and inadequate protection of public safety and private property masquerading as civil rights; hostility to the Second Amendment masquerading as gun-control advocacy, and the genocidal destruction of prenatal infants masquerading as the protection of privacy and women's health.

Strip the bar associations of mandatory, dues-paying membership and we defang that particular enemy of our constitutional republic. Then conservatives need turn their eleemosynary energies to freeing taxpayers of the burden of paying involuntary dues to Planned Parenthood, dues which are used to fund filicide of genocidal proportions, and to PBS and NPR, whose involuntary dues fund propaganda that is hostile to the personal consciences, inimical to the religious beliefs and contrary to the political convictions of millions of conservatives.

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Pukka Luftmensch
on December 27, 2018 at 07:48:48 am

State Bar of TEXAS’ Dysfunctional Grievance System Begs The Supreme Court’s Boot.
Excerpts from letter dated 5/11/16 to SBOT & The Supreme Court of Texas from www.statfoundation.com
Apathetic “Protecting the Public” pronouncements and photos of grinning State Bar of Texas Members, cannot obscure the State Bar of Texas’ intentional falsification of data: it is NOT POSSIBLE (barring Divine Intervention) for active members to increase by 30% (2004-2015) AND for an accurate, corresponding count of number of Disciplines to decrease by 31%!
Misrepresenting the truthful number of Grievances filed by Complainants by claiming special privilege to a “(secret) confidentiality,” State Bar officials and appointees of The Supreme Court have betrayed their sworn oaths to serve and protect Texans and, instead, aided and abetted tens of thousands of Respondent attorneys who have, for years, violated TDRPC repeatedly! Booting the Dysfunctional Grievance System ASAP is crucial. Why would the Texans need a Grievance System as “protection” from Professional Misconduct, when by the Office of the Chief Disciplinary Counsel (CDC’s), Board of Disciplinary Appeals (BODA’s), Commission for Lawyer Discipline (CLD’s) and Grievance Oversight Committee’s (GOC’s) own accounts in Reports to The Supreme Court: (at a cost of $36,048,724); only 1,410 of more than 87,881 active attorneys were determined to require Discipline in years from 2011 to 2015? ……..
The Supreme Court of Texas, in Its’ duty to provide oversight of the State Bar, (a “quasi-state agency,”) must make full Public Disclosure that the entire 2015 membership (96,912 active members) of the State Bar has a huge vested, financial interest in maintaining the current dysfunctional Grievance System. Membership Privileges currently include: DENIALS and DISMISSALS and EXPUNGEMENTS of Complainants’ valid Grievances with no records kept, nor disciplinary consequences to Attorneys. Prompt removal of the Grievance System from the control of the State Bar, a public corporation that functions as trade association for attorneys, and disbarments of officials and Supreme Court appointees, blatantly in noncompliance with The Court’s Rules, is required ASAP.
Tens of thousands of Grievance Complainants have been DENIED and DISMISSED Grievances with no explanation and no investigation, while Texas State Bar members’ premiums for professional liability insurance are discounted due to a Dysfunctional Grievance System’s dishonesty. Insurance underwriters compute low premium rates using an artificially deflated number of professional liability lawsuits. Attorneys who pay insurance premiums through Texas State Bar Member-owned companies, like the Texas Lawyers’ Insurance Exchange (TLIE), benefit financially from each improperly DENIED and DISMISSED Grievance. For example, TLIE has returned over $41,550,000 in profits to its members insureds over the past 19 years........

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Debbie Asbury
on December 27, 2018 at 11:20:53 am

Some sage once opined (paraphrasing here): "Any organization not constitutionally chartered [and constrained] as conservative will ultimately morph into a leftist organization."

Those who can do; those who can't {run professional organizations].
I would add only that it is this sinecure which permits them to exercise petty power over their professional associates, and in this instance, over the unsuspecting dupes in the citizenry at large.

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gabe
on April 26, 2019 at 13:04:31 pm

"Freedom of association is essential to liberty." I couldn't agree more. And yet that right appears nowhere in the text of the Constitution. As I understand Mark's (current) position regarding unenumerated rights, that means judges shouldn't enforce it. Or is freedom of association one of the "legitimate" unenumerated rights taht judges SHOULD enforce? If so, can we reopen the discussion about whether there are others?

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Clark Neily

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.