Jan. 3, 2020 – In a case against the State Bar of Wisconsin, two lawyers have filed a petition for writ of certiorari with the U.S. Supreme Court arguing that the First Amendment does not allow compelled membership in the organization.
The petition follows a summary affirmance decision from the U.S. Court of Appeals for the Seventh Circuit, which ruled that current U.S. Supreme Court precedent on mandatory bars is clear and only the U.S. Supreme Court can revisit the issue.
Now, the U.S. Supreme Court may choose whether to hear the case. At least four of the nine justices must agree to hear it. The State Bar has until Feb. 3, 2020, to file a response to the petition for writ of certiorari in Jarchow v. State Bar of Wisconsin.
Mandatory Status under Keller
Under Wisconsin Supreme Court Rule (SCR) 10.01, all Wisconsin lawyers must be members of the State Bar of Wisconsin (and pay dues) in order to practice law.
The Wisconsin Supreme Court created the organization for various purposes, outlined in SCR 10.02(2). For instance, the State Bar was created to “conduct a program of continuing legal education” and to “promote the innovation, development and improvement of means to deliver legal services to the people of Wisconsin.”
As members, attorneys must pay corresponding State Bar dues, currently $260 per year for full-active members. Other categories of membership pay reduced or no dues.
In cases spanning back to the 1960s, in Wisconsin and other states, attorneys have challenged the mandatory status of bar associations under the First Amendment’s protections against compelled subsidization of speech or compelled association.
But in Keller v. State Bar of California, 469 U.S. 1 (1990), the U.S. Supreme Court upheld mandatory bar dues if objecting members are not compelled to fund activities not germane to regulating the legal profession or improving the quality of legal services.
The Keller court restricted the activities that could be funded with mandatory dues to ensure that free speech and free association rights were protected, while recognizing the important state interest in protecting the public and improving legal services.
SCR 10.03(b)1 reflects the Keller holding. The State Bar cannot use the compulsory dues of objecting members for activities that are not necessarily or reasonably related to the purposes of regulating the legal profession or improving the quality of legal services.
The State Bar annually tracks expenditures deemed nonchargeable to mandatory dues, through a “Keller rebate amount” procedure. The annual Keller rebate amount, reflected on annual dues statements, includes: 1) expenditures relating to activities that are not germane to regulating the legal profession or improving the quality of legal services and, in addition; 2) expenditures relating to activities that constitute direct lobbying on policy matters before the Wisconsin Legislature and U.S. Congress, regardless of whether they would otherwise qualify as germane and, therefore, chargeable under Keller.
Lawsuit Challenges Keller
Adam Jarchow (Clear Lake) and Michael Dean (Brookfield) are now asking the U.S. Supreme Court to revisit the Keller decision. They assert, under the First Amendment, that Keller should be overturned under recent decisions in the labor union context.
The lawsuit originated in the U.S. District Court for the Western District of Wisconsin, which dismissed the case as foreclosed by Keller.
U.S. District Judge Barbara Crabb, in dismissing the case against the State Bar, noted plaintiffs’ argument that the recent U.S. Supreme Court decision in Janus v. Am. Fed'n of State, Cty., & Mun. Employees, Council 31, 138 S. Ct. 2448 (2018), may have eroded the foundation of Keller but “Keller still binds this court” in the mandatory bar context.
In Janus, the 5-4 majority held that public-sector unions may not extract agency fees from nonconsenting, nonunion employees, even though the fees were used to fund union activities that were “germane to the union’s duties as collective-bargaining representative.” However, the Janus majority neither overruled nor discussed Keller.
Jarchow and Dean now argue that Janus controls in the mandatory state bar context. The State Bar, in the district court, noted that the U.S. Supreme Court has previously distinguished Keller from mandatory-union-dues jurisprudence.
In Harris v. Quinn, 573 U.S. 616 (2014), another union dues case, a 5-4 majority struck down a state law requiring non-union, home care personal assistants to pay fair share union fees to further labor peace through collective bargaining.
The majority said the state’s interest in labor peace could be achieved through means that were less restrictive on associational freedoms.
However, in an opinion by Justice Samuel Alito, the Harris majority said the decision would not call into question other decisions, such as the court’s decision in Keller.
“Licensed attorneys are subject to detailed ethics rules, and the bar rule requiring the payment of dues was part of this regulatory scheme,” Justice Alito noted.
“The portion of the rule that we upheld served the ‘State's interest in regulating the legal profession and improving the quality of legal services,” Justice Alito continued.
“States also have a strong interest in allocating to the members of the bar, rather than the general public, the expense of ensuring that attorneys adhere to ethical practices. Thus, our decision in this case is wholly consistent with our holding in Keller.”
The State Bar of Wisconsin is defending a similar lawsuit in the U.S. District Court for the Eastern District of Wisconsin, File v. Kastner et al. The State Bar maintains an integrated bar litigation page with links to court filings in the two pending lawsuits, Jarchow v. State Bar of Wisconsin and File v. Kastner et al.
Federal District Court Dismisses Lawsuit Against the State Bar of Wisconsin – WisBar News (Dec. 12, 2019).
State Bar of Wisconsin Faces Second Federal Challenge to Mandatory Status – WisBar News (Oct. 1, 2019).
Lawyers Challenge State Bar’s Mandatory Status in Federal Lawsuit – InsideTrack (May 1, 2019).