Two petitions ask the Supreme Court to apply Janus v. AFSCME ruling to mandatory bar dues 

Attorneys from Oklahoma and Texas are asking the U.S. Supreme Court to reconsider mandatory bar association dues in light of its 2018 ruling in Janus v. AFSCME. 

In 1990, the Supreme Court unanimously upheld mandatory bar dues, ruling in Keller v. State Bar of California that “the compelled association and integrated bar is justified by the State’s interest in regulating the legal profession and improving the quality of legal services.”  A majority of states have mandatory bar associations. Bar dues are fees paid by attorneys in a state as required for membership in the state bar association.   

Schell v. Oklahoma Supreme Court Justices

Plaintiff Mark Schell, an Oklahoma attorney, filed a complaint in the U.S. District Court for the Western District of Oklahoma in March 2019, claiming the Oklahoma Bar Association’s compulsory membership and mandatory dues violated attorneys’ First and Fourteenth Amendment rights. The Goldwater Institute, which describes itself as a “free-market public policy research and litigation organization,” and attorneys from Jones Day are representing Schell. 

The defendants are the Chief Justice and Justices of the Oklahoma Supreme Court, the Oklahoma Bar Association’s Board of Governors, and Oklahoma Bar Association Executive Director John M. Williams. Attorneys from Maye Law Firm and Wilmer Cutler Pickering Hale and Dorr LLP represent the defendants.

U.S. District Court Judge Joe Heaton ruled in favor of the defendants in September 2019 and March 2020. In the September ruling, Heaton wrote: “To the extent that plaintiff contends the recent case of [Janus v. AFSCME] requires a different result, the court is unpersuaded. Janus involved the payment of agency fees by non-members of a public employee union. While there are some parallels between Janus and the circumstances here, there are also differences. There is also no suggestion in Janus that either [Lathrop v. Donohue (1961)] or [Keller v. State Bar of Calif. (1990)] were overruled or otherwise called into question. In such circumstances, the court is obliged to follow the cases which most directly control, and therefore declines to speculate as to whether the Supreme Court might reach some different result if it were to revisit either Lathrop or Keller.” President George W. Bush (R) nominated Heaton to the court.

Schell appealed to the U.S. Court of Appeals for the Tenth Circuit in April 2020.

On June 29, 2021, a three-judge panel of the Tenth Circuit—Judges Carolyn McHugh, Harris Hartz, and David Ebel—upheld the lower court’s ruling on mandatory bar dues but reversed and remanded the ruling on mandatory bar membership, finding that the lower court “erred by relying upon Lathrop and Keller to dismiss Mr. Schell’s freedom of association claim.” President Barack Obama (D) nominated McHugh, George W. Bush nominated Hartz, and President Ronald Reagan (R) nominated Ebel.

Schell appealed to the U.S. Supreme Court on Nov. 22. In the petition, Schell’s attorneys wrote: 

“In the wake of Janus, a handful of plaintiffs have filed petitions asking this Court to ‘overturn’ its decision in Keller v. State Bar of California … which addressed a First Amendment challenge to mandatory bar dues. […] 

“In this case, by contrast, Petitioner recognizes that there is no need to ‘overturn’ Keller in order to strike down compulsory subsidies for bar associations’ political speech. In fact, Keller itself squarely held that compulsory bar dues and union fees must be subject to the ‘same constitutional rule’ of First Amendment scrutiny. … And under Janus, the ‘constitutional rule’ is now exacting scrutiny. […]

“This Court should grant certiorari because the Tenth Circuit’s decision directly conflicts with the holdings of Keller and Janus. Keller held that bar dues and union fees must be subject to the “same constitutional rule.” … And Janus held that the rule is ‘exacting scrutiny.’ … In light of those holdings, the Tenth Circuit was wrong to follow Keller’s dicta about how bar dues might be analyzed under the now-defunct rule of [Abood v. Detroit Bd. of Educ.]. Since Janus overturned Abood, the only way to be faithful to Keller’s core holding is to make clear that both mandatory bar dues and compulsory union fees are subject to the same rule of exacting scrutiny.” 

The question presented is, “Are mandatory bar dues that subsidize the political and ideological speech of bar associations subject to ‘the same constitutional rule’ of exacting First Amendment scrutiny that applies to compulsory union fees under Janus?” 

The defendants filed waivers of their right to respond on Dec. 2. 

The case name and number are Schell v. Oklahoma Supreme Court Justices (21-779). 

McDonald v. Firth

The plaintiffs, Texas attorneys Tony McDonald, Joshua Hammer, and Mark Pulliam, filed their complaint in the U.S. District Court for the Western District of Texas in March 2019. The suit challenged the requirement for attorneys to join the State Bar of Texas as a condition of practicing law, alleging that mandatory membership violates the First Amendment. Attorneys from Consovoy McCarthy PLLC represent the plaintiffs.

The defendants are the members of the State Bar of Texas’ Board of Directors in their official capacities. Attorneys from Vinson & Elkins LLP represent the defendants.

In May 2020, U.S. District Court Judge Lee Yeakel ruled in favor of the defendants, writing: “Because the Bar has adequate procedural safeguards in place to protect against compelled speech and because mandatory Bar membership and compulsory fees do not otherwise violate the First Amendment, Plaintiffs’ claim that the Bar unconstitutionally coerces them into funding allegedly non-chargeable activities without a meaningful opportunity to object necessarily fails as a matter of law.” George W. Bush nominated Yeakel to the court.

The plaintiffs appealed to the U.S. Court of Appeals for the Fifth Circuit in June 2020.  

On July 2, 2021, a three-judge panel of the Fifth Circuit—Judges Don Willett, Jerry E. Smith, and Stuart Kyle Duncan—ruled in favor of the plaintiffs, overturning the district court’s ruling, remanding the case back to the lower court, and blocking the state bar from requiring membership or dues of the plaintiffs while the case is pending in the lower court. President Donald Trump (R) nominated Willett and Duncan to the court. Reagan nominated Smith. 

The plaintiffs appealed to the U.S. Supreme Court on Nov. 24. Their petition says: 

“This case implicates the same types of First Amendment harms that were at issue in Janus. Petitioners are three Texas attorneys who are compelled to join and financially support the State Bar of Texas in order to practice their chosen profession. The Bar uses their coerced funds to support an extensive array of highly ideological and controversial activities, including lobbying for legislation; promoting identity-based programming and affinity groups; and supporting legal aid and pro bono initiatives that often touch on controversial matters such as immigration policy. Petitioners do not support these activities yet are compelled to associate with the Bar and fund its activities if they wish to continuing practicing law in Texas [sic]. […] 

“This Court should grant certiorari and hold that members of a mandatory bar cannot be compelled to finance any political or ideological activities, and cannot be compelled to join a bar that engages in such activities.” 

The question presented is, “Does the First Amendment prohibit a state from compelling attorneys to join and fund a state bar association that engages in extensive political and ideological activities?” 

The defendants filed a waiver of their right to respond on Dec. 2. The case was distributed for conference on Jan. 7, 2022. 

The case name and number are McDonald v. Firth (21-800).

About the Supreme Court

The Supreme Court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court receives around 7,000 to 8,000 petitions every year. During its past five terms, the court has agreed to hear an average of 71 cases per term. The court generally releases the majority of its decisions in mid-June.   

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What we’re reading

• DCist, “Loudoun County Supervisors Approve Collective Bargaining For Public Employees,” Dec. 8, 2021 
• Bloomberg Law, “Immigration Judges Get Recognition of Union in DOJ Agreement,” Dec. 7, 2021
• WRIC, “Richmond School Board gives resounding ‘yes’ to collective bargaining,” Dec. 6, 2021

The big picture

Number of relevant bills by state

We are currently tracking 110 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.

• New Jersey A5862: This bill would expand the terms and conditions negotiable between government employers and public-sector unions to include those that “intimately and directly affect employee work and welfare,” with certain exceptions. It would also allow a public-sector union to charge a non-dues-paying employee for the cost of representation in arbitration proceedings, and to decline to represent a non-dues-paying employee who does not agree to pay the cost of representation. 
  • Democratic sponsorship. 
  • Assembly Labor Committee hearing on Dec. 13.