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The United States Law Week

High Court Sends Back Bar Membership Row

Dec. 3, 2018, 2:57 PM

The U.S. Supreme Court sent back a case challenging a nearly 30-year-old precedent allowing mandatory bar membership.

The case took aim at the county’s first mandatory bar, North Dakota’s, which required membership in the state’s bar association as a condition to practice law as early as 1921, according to the American Bar Association.

Although the state with the most lawyers as of 2017—New York—still has voluntary membership, 37 other U.S. jurisdictions have “unified” or “integrated” bars, which require bar membership, according to ABA statistics.

Arnold Fleck, a North Dakota lawyer, says the requirement violates his First Amendment rights. He asked the court to overturn a nearly 30-year-old precedent holding otherwise.

The Supreme Court said in 1990 that mandatory membership schemes pass constitutional muster so long as they don’t require members to “finance political and ideological activities with which” an attorney disagrees.

Even if the court didn’t want to reverse that holding, North Dakota’s bar membership requirement runs afoul of it because it requires attorneys to opt-out, rather than in, to financing such activities, Fleck argued.

The Supreme Court refused to take up either issue today, but vacated the U.S. Court of Appeals for the Eighth Circuit’s ruling, which upheld the requirement.

The court sent the case back to the Eighth Circuit for further consideration in light of the high court’s ruling last term, in Janus v. State, County, and Municipal Employees.

On remand, the Eighth Circuit can reconsider its position in light of the high court’s ruling, but isn’t bound to come out a particular way. The case could eventually make its way back to the Supreme Court after the Eighth Circuit has had another look at the case.

Constitutional Sword

In Janus, a divided 5-4 Supreme Court struck down a more than 40-year-old precedent allowing mandatory union fees for public employees, saying that doing so violated the First Amendment.

At the time, Justice Elena Kagan criticized the majority’s use of the First Amendment as a “sword,” and “against workaday economic and regulatory policy.”

“Today is not the first time the Court has wielded the First Amendment in such an aggressive way,” Kagan said. “And it threatens not to be the last.”

But Fleck argued that he shouldn’t be required to finance opposition to a North Dakota ballot measure that he personally supports.

The case is Fleck v. Wetch, U.S., No. 17-886, granted, vacated, and remanded 12/3/18.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com