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Posts Tagged ‘Abood v. Detroit Board of Education’

https://upload.wikimedia.org/wikipedia/commons/thumb/1/17/Flickr_-_USCapitol_-_Squirrel_in_front_of_the_U.S._Supreme_Court.jpg/339px-Flickr_-_USCapitol_-_Squirrel_in_front_of_the_U.S._Supreme_Court.jpgFree speech and free association relief for lawyers may be on the way. The nation’s highest court agreed this week to hear Janus v American Federation of State, County and Municipal Employees (AFSCME), a case that revisits the issue raised last year by Friedrichs v. California Teachers Associattion, “Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment.”

Friedrichs unfortunately was left undecided. On the untimely death of Justice Antonin Scalia, the court split 4-4 and the lower court ruling was undisturbed.

Had the U.S. Supreme Court ruled for public school teacher Rebecca Friedrichs, her First Amendment rights would have been vindicated — and potentially so too the rights of the nation’s lawyers.

Indeed, in the words of 21 former Presidents of the District of Columbia Bar, it “would have a profoundly destabilizing impact on bars all over the country.”  Why? Because overturning Abood v. Detroit Board of Education, 431 U.S. 209 (1977) would also have meant cutting loose the funding gravy train for mandatory bar bureaucrats. See “SCOTUS Ruling Leaves Keller Alone—for Now.”

Abood underpins Keller v. State Bar of Cal., 496 U.S. 1 (1990). Under Keller, lawyers cannot be compelled to fund a state bar’s lobbying activities unrelated to regulating the practice of law. Just the same, state bars like Arizona’s nonetheless use compulsory member dues to not only regulate the practice of law — but to engage in other activities such as lobbying and advocating for ideological and political causes not all members agree with.

Janus v. AFSCME

The Illinois Public Labor Relations Act authorizes public employee unions to collect “fair share” or “agency shop” fees from non-member employees. Mark Janus is a public sector employee who on First Amendment grounds objected to paying money for union collective bargaining and contract administration activities he did not support. The Seventh Circuit held that Janus’ claims were barred solely because of Abood. See “Supreme Court poised to deal a sharp blow to unions for teachers and public employees.”

Writing at The Supreme Court’s Next Big Union Fight: Six Key Questions,” lawyer journalist Marcia Coyle opined about the impact on bar associations, “And although they are not private sector unions, a decision against the union agency shop fees could also affect mandatory dues arrangements of state bars . . . integrated bars have long relied in structuring their activities on Abood and Keller v. State Bar of California.” Justice Neil M. Gorsuch is expected to provide the fifth vote to overrule Abood and end the collection of agency fees by public employee unions.

Go along to get along

https://upload.wikimedia.org/wikipedia/commons/7/74/Agnes_Karikaturen_Vorwaerts.jpgTo earn a living in their chosen profession, lawyers are forced to go along to get along with an untold number of Constitutional impingements. Lawyers, for example, are subjected to freedom of speech and freedom of association restrictions not ordinarily applied to others. For example, notwithstanding that judges are government officials subject to the “uninhibited, robust and wide-open” core political speech constitutional standards under New York Times Co. v Sullivan, lawyers are nevertheless punished for remarks deemed disparaging about the judiciary.

Moreover, in violation of the First Amendment right of free association, law firms are prohibited from obtaining outside investments. And rather than ask lawyers to opt in to political spending, mandatory bars require members to actively object to the cavalier presumption that lawyers condone the use of their mandatory monies to fund political speech they disagree with. And in perhaps the greatest pirouette of the First Amendment, in 32 states lawyers are forced to join a bar association to practice law.

Sui generis?

https://upload.wikimedia.org/wikipedia/commons/2/28/Lula-WIKI.pngIt’s common to require members of professions and occupations to pay an annual fee used to regulate and enforce a licensing system. But it’s quite something else to disingenuously assert lawyers are a breed apart — sui generis special snowflakes that while professing to be aspirational guardians of the law protecting individual rights are nevertheless supposed to tolerate infringements of their own rights.

In truth, the only thing unique about lawyers is how unlike other professions and occupations, lawyers countenance compulsory organizational membership and the imposition of fees for non-regulatory purposes merely for the ‘privilege’ of earning a living.

Fortunately, not all lawyers put up with these constitutional infringements with timid or stoic forebearance. In Wisconsin, for example, lawyers have fought for almost 40 years against the requirement that dues-paying membership in a state bar organization preconditions licensure. As a matter of fact, those arguments even predate the Second World War.

In 2013, lawyers brought about changes in Nebraska when the state supreme court continued its bar as a mandatory but ordered that mandatory dues could only be used for regulatory purposes. As for non-regulatory activities, only voluntary funds could be used. This approach subsequently inspired legislation in Arizona and it tracks with legislation just passed overwhelmingly in California.

https://upload.wikimedia.org/wikipedia/en/thumb/f/fb/Blacksmith_icon_symbol_-_hammer_and_anvil.jpg/252px-Blacksmith_icon_symbol_-_hammer_and_anvil.jpgCalifornia’s Bar is an outlier in finally opting to stop fighting reforms. More typical are mandatory bars like Arizona’s and Wisconsin’s that fight lawyer emancipation from forced membership and forced funding of their attorney trade associations with hammer and tongs.

Last month, without a word of explanation, the Arizona Supreme Court denied a rule petition opposed by Arizona’s bar that would have separated funding of the bar’s regulatory and non-regulatory functions. And just last week, Wisconsin’s 52-member bar governing board unsurprisingly voted to oppose a petition pending before the Wisconsin Supreme Court that would similarly break up member funding based on mandatory dues to support the bar’s specified regulatory activities and voluntary dues to support all other non-regulatory activities.

Who ever said this was going to be easy? But with Abood overturned — it just might.

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Credits: Squirrel in front of the US Supreme Court, by US Capitol at Wikimedia Commons, public domain; Agnes Karikaturen Vorwaerts, by Agnes Avagyan , Narrabilis at Wikimedia Commons, creative commons share-alike attribution license; Português: Caricatura do presidente Lula. 2005, by Mariano Julio at Wikimedia Commons, creative commons attribution;Blacksmith icon symbol: hammer and anvil, at Wikimedia Commons, creative commons attribution license.

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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 case is Friedrichs v. California Teachers Association. Except it’s not a case about lawyers. It’s a union case that’s widely described as “devastating to public-sector unions.

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.’”

https://upload.wikimedia.org/wikipedia/commons/thumb/2/29/High_rider_CicLAvia_2010.jpg/486px-High_rider_CicLAvia_2010.jpg 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.

https://upload.wikimedia.org/wikipedia/commons/thumb/f/f2/Captain_of_the_nine_%281912%29_%2814566361667%29.jpg/402px-Captain_of_the_nine_%281912%29_%2814566361667%29.jpg 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.”

Hubris

https://upload.wikimedia.org/wikipedia/commons/thumb/1/1e/Punch_%281841%29_%2814802616693%29.jpg/472px-Punch_%281841%29_%2814802616693%29.jpgWhat 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.”

No wonder the entitled legal elites at the D.C. Bar got so worked up about Friedrichs. But so should the nation’s 31 other mandatory bars.

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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.

 

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