On Monday morning, January 11, 2016, the U.S. Supreme Court will hear a case with potentially positive impact on the First Amendment rights of lawyers.
The questions presented in Friedrichs are:
(1) Do public-sector agency shop arrangements violate the First Amendment’s protections for freedom of speech and assembly?
(2) Does the First Amendment prohibit the practice of requiring public employees to affirmatively opt-out of subsidizing nonchargeable speech rather than to affirmatively consent?
But depending on who you ask, a decision for the petitioners would either vindicate workers’ First Amendment rights or in the view of elite lawyer doomsayers “would have a profoundly destabilizing impact on bars all over the country.” The latter declaration is what 21 former Presidents of the District of Columbia Bar claimed in their amicus brief asking that Abood v. Detroit Board of Education, 431 U.S. 209 (1977) be left “undisturbed.”
Petitioners Rebecca Friedrichs and her co-plaintiff teachers want the Court to overrule Abood. But it’s not because of concerns over the constitutional rights of lawyers even though like the petitioners, they, too, are forced to fund speech they oppose in order to earn a living in their chosen profession. Instead, the petitioners want the Court to rule that the free speech rights of non-union members ought to trump any obligation to contribute to the costs of representation.
In typical exaggerated bull and bunkum, mandatory bar stakeholders contend that a ruling against the California teachers union “would very likely spawn additional time-consuming and expensive lawsuits by bar members who do not want to pay their mandatory bar dues. Such lawsuits would severely distract this country’s thirty-two integrated bars from their critical work “serv[ing] the‘State’s interest in regulating the legal profession and improving the quality of legal services.’”
If the petitioners prevail, alarmed union leaders believe more workers would become so-called “free riders.” The result could lead to a drop in union membership and revenue that could not only harm existing collective bargaining contracts but change election year dynamics.
Amy Howe at Scotus Blog has a plain English explanation of the case at “Justices return to dispute over union fees for non-members: In Plain English.” Also see “Public Unions Face High-Court Hurdle.”
Why mandatory bars should be worried.
Abood is a case that the nation’s 32-mandatory membership state bar associations rely on to continually impinge on the free speech and free association rights of their members. Abood supports an overly broad interpretation of ‘permissible’ mandatory bar First Amendment encroachments under Keller v. State Bar of California, 496 U.S. 1, 12 (1990). But contrary to what the self-interested past bar presidents said in their brief, Keller allows mandatory bar associations to compel dues only for the narrow purpose of improving the practice of law through the regulation of attorneys.
I won’t dive further into the weeds to analyze Friedrichs beyond recommending you read the arguments of the D.C. Bar and the Goldwater Institute, which also filed its own amicus brief. In part, the Goldwater Institute summarizes its position as follows,
“This Court has always required that chargeable
expenditures related to improving the quality of legal
services also be connected to regulating the legal
profession. Lathrop v. Donohue, 367 U.S. 820, 843
(1961); Keller, 496 U.S. at 14; United States v. United
Foods, Inc., 533 U.S. 405, 414 (2001); Harris v.
Quinn, 134 S. Ct. 2618, 2643 (2014). Mandatory bar
associations and lower courts have mistakenly concluded
that Keller identified two purposes that allow
bar associations to compel membership: “improving
the quality of legal services” and “regulation of lawyers.”
See, e.g., Kingstad v. State Bar of Wisconsin,
622 F.3d 708 (7th Cir. 2010). Misconstruing Keller as
permitting mandatory bars to compel dues for two
broad and distinct purposes harms members’ First
Amendment rights and places Keller in the same
dangerous territory as Abood by leading mandatory
bars to routinely spend coerced dues on a broad range
of political and ideological activities.”
What I will opine about is the irony of the District of Columbia Bar taking the lead. Talk about monumental hubris and unmitigated gall.
For one, the D.C. Bar rivals the State Bar of Arizona in its self-congratulatory capacity and unabashed resistance to reform. But what’s especially rich is the poetic justice that could result if the Court also revisits Keller and rules that mandatory bar associations can only compel dues for lawyer regulation and not for non-regulatory purposes like building monuments to itself.
The D.C. Bar is buying an expensive new office monument for itself (just like the Arizona Bar did several years ago). On its website, it maintains that, “ownership of the building allows the Bar to save more than $25 million over 30 years versus renting—money that can be used to find more ways to provide member value while maintaining the Bar’s position in the lowest quartile of dues rates in the country. Doing more. Managing costs. Driving direct member value. That’s what the new home affords the Bar.”
The D.C. Bar is one of the largest in the United States. A preponderance of its members live outside the District of Columbia. As longtime D.C. Bar critic Mike Frisch editorializes at “D. C. Bar Wants To Raise Dues Ceiling” about the D.C. Bar’s “lowest dues for a bar its size,” he says it’s “a disingenuous dodge that ignores a fact obvious to anyone who understands the true composition of the D.C. Bar. D.C. has more out-of-state lawyers than anywhere else. They pay full dues for no service. They are the Bar’s hidden endowment and they fund the profligacy.”
And now thanks to a court order signed last month, as of July 1, 2016, the dues ceiling will be raised from $285 to $380 for D.C. Bar members. At “Happy New Year D. C. Bar: Pay Up!,” Frisch complains, “Now the best-paid bar employees in America can increase their salaries, travel to every domestic and international bar-related party and buy themselves a fancy building with primo views, all at the expense of a membership that had no say in the process.”
Credits: Morguefile.com, no attribution, High Rider, by Downtowngal at Wikimedia Commons; Captain of the Nine, at Wikimedia Commons, via Flickr Creative Commons; Punch, at Wikimedia Commons via Flickr Creative Commons.