The Janus Issue
The Supreme Court is set to consider in late February in Janus v. American Federation of State, County and Municipal Employees whether workers can be forced to pay union dues even when they don’t agree with the Union’s political activities or simply don’t want to. If the Court holds that these mandatory fees violate workers’ First Amendment rights, a large and perhaps unrepairable crack in the power dam held by state bar associations may be about to occur.
At issue is the holding in a 1977 decision Abood v. Detroit Board of Education. There SCOTUS upheld, against a challenge based on the First Amendment, a Michigan law that required public school teachers who did not join a union nevertheless to pay fees to it. Because the teachers supposedly benefited from the union’s collective bargaining agreement with the employer, the Court upheld the law. In other words, even if someone disapproved of the union and/or what it was doing or stood for, they nevertheless could be forced to pay dues—if they wanted a job.
In other words, even if someone disapproved of the union and/or what it was doing or stood for, they nevertheless could be forced to pay dues—if they wanted a job.
Janus argues that the activities of the Union to which he is required to pay dues (some $44.58 which is deducted from his paycheck every month to cover the collective-bargaining fees of the Union) are intertwined with the Union’s political activities he should not have to pay any of them. Janus says in effect, by paying the fees, I’m forced to help the Union say and do things I don’t agree with. That is making me speak, which is something my freedom of speech right protects against.
Janus thus argues that the underpinnings of Abood, that the portion of the fees going toward political activity can be parced out or are di minimus is flawed. The issue squarely before the Court in Janus is whether Abood and the idea that requiring the payment of these fees is violative of the First Amendment.
At the 7th Circuit, Judge Posner, perhaps in one of the shortest and least analytical opinions he ever wrote, said his Court was powerless to overturn Abood, setting the stage for SCOTUS review. The case is set for argument before SCOTUS Monday, February 26, 2018.
Lots of organizations—such as many state bar association– impose and depend on these kinds of fees, requiring people to pay them if they want to engage in certain work.
So, it’s just another labor case, right? Wrong. While the case has been running pretty much under the radar, the decision could have enormous repercussions. Lots of organizations—not just labor unions– impose and depend on these kinds of fees, requiring people to pay them if they want to engage in certain work.
Such as…state bar associations. These associations, commonly called integrated or unified bars, are charged by the courts or the legislatures with responsibilities for regulating lawyers licensed to practice in their states. So, in some 36 states, you have to join the state bar and pay the fees if you want to practice.
This means that the bar association can govern how and what you can and can’t do. You don’t comply, you don’t practice. Commentators like Gillian Hadfield and Bill Henderson and those in the legal tech and innovation space have remarked how this has stymied innovation in the legal profession. Just ask Avvo whose Legal Services program that tries to link lawyers with folks who need legal help has faced vigorous attack by state bars intent on preventing any sort of non lawyer fee splitting. A ruling in favor of the First Amendment in Janus could be the first crack in the dam of the unilateral power of associations.
Janus is not the only assault on Abood and state bar assortations presently before SCOTUS. In another case pending before the supreme Court, Fleck v. Wetch. Fleck, a North Dakota lawyer, is specifically asking the U.S. Supreme Court to free him from his forced association with the State Bar Association of North Dakota. SCOTUS first gave its stamp of approval to mandatory state bar associations) in a 1961 case, Lathrop v. Donohue, and reiterated its belief that forced association justified infringement objecting attorneys’ First Amendment rights in Keller v. State Bar of California (which presented a direct challenge only to subsidization of politicking, not to forced association for general regulation purposes).
Wiil Abood Survive?
Most commentators believe that the Court will overturn Abood and by implication, Lathrop and Keller. Why? Abood was severely criticized in the Court’s 2014 decision in Harris v. Quinn. Harris (which coincidently also arose out of the 7th Circuit) involved a requirement by a state to compel health care providers to pay union dues to a union they did not want to support or join. The only reason Abood wasn’t overruled then was that the Court ultimately determined doing so was unnecessary to decide the Harris case.
But here is how the majority described the Abood holding: “questionable on several grounds…several [of which] have become more evident and troubling in the years since then”, “thin”, “something of an anomaly,” allowing “uncommon interference with individuals’ expressive activities based on arguments [that were] generally insufficient to overcome First Amendment objections”, not foreseeing “the practical problems that would face objecting nonmembers.” As the Harris Court put it: it’s a “bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”
Its bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.
Sounds like the Court is waiting for the right opportunity to drive a stake in the heart of the Abood holding and, by implication, Lathrop and Keller.The Harris decision was 5-4 with the Court split along conservative/liberal lines: Roberts, Scalia, Kennedy, and Thomas joined Justice Alito’s majority opinion. Kagin, Ginsburg, Breyer and Sotomayor dissented. Of course, this case was decided before Judge Scalia passed away; it seems unlikely that Justice Gorsuch will side with the liberals.
Even shortly before Abood was decided, its conceptual underpinnings were questioned. In Elrod v. Burns, decided about a year before Abood, the Court held the requirement that public employees in Illinois support the Democratic Party or lose their jobs violated the First Amendment to compel workers to turn over money to a political party.
So given all this, it’s no wonder 21 former Presidents of the District of Columbia Bar Associaion in an Amicus Brief stated, overruling Abood “would have a profoundly destabilizing impact on bars all over the country.” The Presidents argue that overruling Abood would 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.’”
What, Me Worry?
Why are the Presidents of the D.C. Bar and others so worried? If SCOTUS does what most think it will, Janus could have far reaching impacts. The power to regulate the legal profession is entrusted to the courts and is part of their inherent authority. But in many states, the Courts have pretty much relinquished this authority to unified bars. These Bar Associations depend on required fees to regulate the profession, to write ethics opinions, to investigate violations of the rules. If lawyers can opt out of paying the fees, the money funding all this work could start to dry up forcing the bar association to look elsewhere for funding like state legislatures, many of which are already cash starved and face several other priorities.
And while the courts could step back in and undertake the work of the bar associations, most state courts are already underfunded and judges have more work than they can do. How interested would state court judges really be in taking over some of the bar association functions? Plus, court control could be a different game, with a different agenda and may yield different results. Courts may be less interested in protectionism or in devoting their energies to that goal than bar association.
With less funding, inevitably there will be less enforcement of many of the arcane rules that many feel hold back the profession
So, with less funding, inevitably there will be less enforcement of many of the arcane rules that many feel hold back the profession. Like fee splitting with non-lawyers. Non- lawyer ownership of firms. Licensing. Broad and unreasonable definitions of the unauthorized practice of law.
And lest we think the Supreme Court might be reluctant to upset the applecart knowing the impact on the legal profession and state bar associations, remember it was the Supreme Court that opened the door to lawyer advertising in 1977 in Bates v. State Bar, against the wishes of many state bar associations. And you guessed it, the reason that lawyers can advertise is that advertisement is commercially protect speech under the First Amendment. The Court had little trouble upsetting the tradition against advertising by lawyers, rejecting it as an “antiquated rule of etiquette”.
So buckle up. SCOTUS may be about to do what the ABA, commentators, legal techies and innovators and renegade lawyers have tried and failed to accomplish in one fell swoop of a pen.