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Posts Tagged ‘Friedrichs v. California Teachers Association’

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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