Labor & Employment Law Daily Supreme Court rejects chance to apply Janus to mandatory bar dues
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Thursday, June 4, 2020

Supreme Court rejects chance to apply Janus to mandatory bar dues

By Pamela Wolf, J.D.

Two Justices dissented, saying that since Abood was applied to permit mandatory bar arrangements, and Janus overruled Abood, there is little support for the case that made mandatory bar arrangements lawful.

On June 1, the High Court declined to take up a case where it could have applied its Janus v. AFSCME decision holding that state laws compelling public employees to subsidize the speech of labor unions violate the First Amendment and overruling Abood v. Detroit Board of Education, to state bars that compel attorneys to be members of an “integrated bar” and fund its speech and advocacy on matters of substantial public concern.

Mandatory bars. Justice Thomas, joined by Justice Gorsuch, dissented from the denial of certiorari, though, noting that a majority of states, including Wisconsin—the one at issue here—have “integrated” or “mandatory” bars requiring attorneys to join a state bar and pay compulsory dues as a condition of practicing law in the state.

The petition for certiorari was filed by a pair of practicing lawyers in Wisconsin who allege that their Wisconsin State Bar dues are used to fund “advocacy and other speech on matters of intense public interest and concern.” They contend, among other things, that the Wisconsin State Bar has taken a position on legislation prohibiting health plans from funding abortions, legislation on felon voting rights, and items in the state budget.

The lawyers’ challenge the integrated bar arrangement under the First Amendment, but their challenge is foreclosed under the Supreme Court’s 1990 decision in Keller v. State Bar of Cal. (496 U. S. 1), which they have asked the Justices to revisit.

Abood was extended to Keller. While the majority declined, Justice Thomas would grant the petition to address the question, noting that Abood, which held that a law requiring public employees to pay mandatory union dues did not violate the freedom of speech guaranteed by the First Amendment, was extended to integrated bar dues under Keller, “based on an ‘analogy between the relationship of the State Bar and its members, on the one hand, and the relationship of employee unions and their members, on the other.’”

In overturning Abood via Janus, the Court observed that Abood was ‘”was poorly reasoned,” that “[i]t has led to practical problems and abuse,” and that “[i]t is inconsistent with other First Amendment cases and has been undermined by more recent decisions,”’ Justice Thomas wrote. “After considering arguments for retaining Abood that sounded in both precedent and original meaning, we held that ‘States and public-sector unions may no longer extract agency fees from nonconsenting employees.’”

Keller cannot stand. The decision to overrule Abood “casts significant doubt on Keller,” according to the dissent. Keller rests almost entirely on the framework of Abood, and now that Abood is no longer good law, there is in effect nothing left supporting the Keller decision. “If the rule in Keller is to survive, it would have to be on the basis of new reasoning that is consistent with Janus,” Justice Thomas wrote. The Court should reexamine whether Keller is sound precedent, according to the dissent.

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