Sixth Circuit rules Janus does not invalidate mandatory bar membership
On July 15, the U.S. Court of Appeals for the Sixth Circuit upheld a 2020 ruling from the U.S. District Court for the Western District of Michigan which found that the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME does not invalidate mandatory bar association membership.
The Sixth Circuit’s decision is the fourth appellate ruling on mandatory bar membership in recent weeks. The Tenth Circuit ruled on a challenge to the Oklahoma Bar Association and the Fifth Circuit ruled on challenges to the Louisiana State Bar Association and the State Bar of Texas.
While the courts’ decisions in those three cases addressed the bars’ political or ideological activities, the plaintiff in this case did not allege that the State Bar of Michigan had funded impermissible activity and relied solely on Janus to overturn the membership requirement. In Keller v. State Bar of California, a 1990 decision cited in each of these rulings, the U.S. Supreme Court held that state bars may “constitutionally fund activities germane to those goals out of the mandatory dues of all members” but may not “fund activities of an ideological nature which fall outside of those areas of activity.”
Parties to the suit
The plaintiff is Lucille Taylor, a Michigan attorney. The Mackinac Center Legal Foundation, which describes itself as a “public interest law firm that works to advance individual freedom and the rule of law in Michigan and across the country,” represents Taylor. The defendants are the president, president-elect, vice president, secretary, and treasurer of the State Bar of Michigan Board of Commissioners in their official capacities. Warner Norcross & Judd represents the defendants.
What’s at issue, and how the lower court ruled
Taylor filed her lawsuit in the U.S. District Court for the Western District of Michigan on Aug. 22, 2019. In the complaint, Taylor’s attorneys said, “In Janus, the Supreme Court stated that mandatory union dues or fees paid by public employees, which are similar to the bar dues at issue here, violated the employees’ free speech Rights … Previously, the United States Supreme Court upheld mandatory bar dues in Keller v. State Bar of California … relying on the reasoning of Abood v. Detroit Board of Education … However, Janus explicitly overruled Abood, calling into question Keller and other opinions that followed the reasoning of Abood.” Taylor asked the court to declare that mandatory bar membership violated her First and Fourteenth Amendment rights.
On Sep. 8, 2020, the district court ruled in favor of the defendants. Judge Robert Jonker, a George W. Bush (R) appointee, wrote:
[T]he Court is satisfied that whatever wading [into the issues] needs to be done must happen in a higher Court because the Supreme Court has squarely decided the issues framed here in favor of the defendants. …
Plaintiff accepts that Lathrop and Keller rejected the claims she is making here, but urges this Court to revisit them in light of a line of Supreme Court authority culminating in Janus that, according to Plaintiff, calls into question the continuing validity of the holdings. This Court has no power to do that.
Taylor appealed to the U.S. Court of Appeals for the Sixth Circuit in October 2020.
How the Sixth Circuit ruled
On July 15, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit—Senior Judge Eugene Siler, Judge Karen Moore, and Judge Amul Thapar—upheld the district court ruling.
Moore wrote:
To Taylor’s credit, she acknowledges that Lathrop and Keller are an insurmountable hurdle if they remain good law. Taylor concedes that her compulsory membership in the State Bar of Michigan does not offend the First Amendment under either case. … And while the State Bar of Michigan does engage in advocacy germane to the legal profession, Taylor concedes that its activities do not cross the line set in Keller. … Instead, Taylor argues that Lathrop and Keller no longer bind this court because of intervening precedent in the form of Janus …
Our cases are clear that we may not disregard Supreme Court precedent unless and until it has been overruled by the Court itself. … Even where intervening Supreme Court decisions have undermined the reasoning of an earlier decision, we must continue to follow the earlier case if it “directly controls” until the Court has overruled it. …
Here, the district court correctly concluded that Lathrop and Keller continue to bind the lower courts despite the Court’s ruling in Janus.
George H.W. Bush (R) nominated Siler to the court, Bill Clinton (D) nominated Moore, and Donald Trump (R) nominated Thapar.
The case name and number are Taylor v. Buchanan et. al (20-2002).
About the Sixth Circuit
The U.S. Court of Appeals for the Sixth Circuit hears appeals from the district courts within its jurisdiction, which includes Kentucky, Michigan, Ohio, and Tennessee. The chief judge of the court is Jeffrey Sutton, a George W. Bush appointee. Of the court’s 16 active judges, Clinton appointed three, George W. Bush appointed five, Barack Obama (D) appointed two, and Trump appointed six.
What we’re reading
- Government Executive, “FLRA Narrows Labor’s Ability to Litigate Bargaining Disputes,” July 13, 2021
- Courthouse News Service, “Chicago Service Workers End Strike After 18 Days,” July 13, 2021
The big picture
Number of relevant bills by state
We are currently tracking 98 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.
Number of relevant bills by current legislative status
Number of relevant bills by partisan status of sponsor(s)
Recent legislative actions
Below is a complete list of relevant legislative actions taken since our last issue.
- Massachusetts H1946: This bill would allow public-sector employees to strike.
- Democratic sponsorship.
- Joint Labor and Workforce Development Committee hearing held July 13.
- Massachusetts H2038: This bill would amend the laws governing strikes by public-sector workers.
- Bipartisan sponsorship.
- Joint Labor and Workforce Development Committee hearing held July 13.
- Massachusetts H2060, H2061: This bill would establish that the personal contact information of public-sector workers cannot be made public. It would allow such information to be disclosed to labor unions.
- Democratic sponsorship.
- Joint Labor and Workforce Development Committee hearing held July 13.
- Massachusetts S1245: This bill would amend the laws governing strikes by public-sector workers.
- Bipartisan sponsorship.
- Joint Labor and Workforce Development Committee hearing held July 13.
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